The Legal Issues: Justice and Politics

AT the root of the problems raised by the Chicago trial is the old puzzle of how far a free society should go in regulating inflammatory expression. The First Amendment guarantees free speech, but a government's equal duty is to preserve domestic peace, and as Justice Holmes noted, "Every idea is an incitement." The U.S. is no exception to the rule that in times of violent dissent, political speeches can become fighting words, and rights get bent in the process. Before the Bill of Rights was seven years old, the Federalist Administration of John Adams invoked the Alien and Sedition Acts to prosecute no one more seditious than newspaper editors who supported the opposing Democratic-Republican Party. The World War I Espionage and Sedition Acts were used to arrest 2,000 antiwar dissenters who dared to utter or write "disloyal" statements about the flag or the Government

Inviting Dispute. The Supreme Court upheld the Espionage Act, but also voiced a memorable concept: Justices Holmes and Louis Brandeis argued thai even the most revolutionary rhetoric is protected unless it poses a "clear and present danger" of inciting insurrection. Though never accepted as official doctrine, that idea eventually helped expand the boundaries of protected protest. Speaking for the court in 1963, Justice Potter Stewart approvingly quoted a lower court's reminder that "a function of free speech under our system of government is to invite dispute. It may, indeed, best serve its function when it induces a condition of unrest, or even stirs people to anger."

By that standard, the Chicago case started when Mayor Richard Daley barred permits for antiwar demonstrations near the Democratic Convention. "Prior restraint" is usually illegal without solid proof that irreparable harm will ensue; yet many law-enforcement officials, including then Attorney General Ramsey Clark, thought violence was avoidable. Undoubtedly some extremists were bent on provoking trouble, and they were aided when Daley's refusal to negotiate angered thousands of young people. The police were severely harassed, but they in turn treated demonstrators so harshly that the Walker Commission called the subsequent disorders a "police riot." Nixon's new Attorney General John Mitchell made the decision to prosecute a symbolic cross-section of demonstration leaders, thereby moving the issues into the courts.

Seeking a Soapbox. Further problems were almost inevitable, since most legal scholars have serious constitutional doubts about the 1968 federal antiriot law that Mitchell used. The law bans interstate travel or communication with intent to "incite or encourage" a riot, and it sweepingly defines a riot as any demonstration involving as few as three people and one act of violence endangering property or other people. According to some scholars, anyone who crosses a state line intending to join a demonstration that becomes violent now runs the risk of Government prosecution, even though others incite the ruckus. As critics see it, the law might deter even orderly expressions of grievances--and is unnecessary, since every state already has numerous laws for punishing incitement or disorderly conduct.

If the law is dubious, how should those prosecuted under it behave in the courtroom? The American judicial system has a time-honored answer: face trial with dignity and decorum, appeal a conviction and trust a higher court to void the law if need be. When Dr. Benjamin Spock was tried for inciting draft dodgers, for example, he made a sincere and orderly defense; his conviction was reversed on appeal. By choosing, instead, to disrupt their trial through guerrilla tactics, the Chicago defendants and their lawyers not only forfeited the sympathy of the majority of the public, but also lost the moral authority they might have brought into the courtroom. They reasoned that they had been made victims of a "political trial." Indeed, the chief evidence that U.S. Attorney Thomas Aquinas Foran used to prove their intent was their beliefs--what they wrote and said that supposedly inflamed thousands of people to join the melee. The Seven wanted to elaborate on those beliefs and make the court a soapbox

all deemed irrelevant to the trial of

their specific conduct.

If the defendants lost the moral authority of their cause, so did Judge Hoffman by betraying what many legal observers consider clear prejudice for the prosecution. Could Hoffman have handled himself and the case differently? Nothing quite like it has ever happened in a U.S. courtroom before. In the 1949 trial of eleven Communists for conspiring to advocate violent overthrow of the Government, Defendant Eugene Dennis insisted on representing himself. Though he and lawyers for the others hurled charges of unfairness at U.S. District Judge Harold Medina, they stopped well short of the bitter insults employed by the Chicago group. In 1966, one of three savagely hostile convicts charged with escaping from a Pennsylvania penitentiary told Pittsburgh Judge Albert A. Fiok: "If I can't get my rights legally, I'll have to blow your head off. You understand that, punk?" Fiok understood enough to clap the three into gags and straitjackets.

"Divine Right." Still, a judge's chief weapons are patience and scrupulous fairness toward unfamiliar ways of living. When twelve of the "Milwaukee 14" were tried last June for burglary, arson and theft during a raid on a draft board, County Judge Charles L. Larson, 62, quietly lectured the aggressive defendants on his reasons for overruling many defense tactics and overlooked minor outbursts. After their convictions, he also sentenced five of them to ten days or $50 for contempt. Their behavior did not reach Chicago proportions, but they went to jail martyrs to the draft, not the judicial system.

By contrast, Hoffman upset lawyers by his punitive use of summary contempt, the instant enforcer that empowers a judge to maintain order by acting as prosecutor, chief witness, judge, jury and sentencer. The power goes back to the days when judges were representatives of the King and had the authority to enforce respect for the monarch's "divine right." Decorum can work in a defendant's favor by preventing unruly behavior that might prejudice the jury against him. Yet Hoffman, in meting out more than 17 years' worth of contempt sentences, apparently tried to get around a Supreme Court decision that requires a jury trial whenever a man faces a sentence exceeding six months. Thus he gave Defense Attorney William Kunstler four years, 13 days --in small, consecutive doses. Example: for one offense (not sitting down when ordered to), Kunstler drew varied sentences of 7, 14, 21 and 30 days.

Old Lesson. Obviously Hoffman had good reason to cite Kunstler and Weinglass, to say nothing of their clients. But the size of the lawyers' sentences left many legal experts aghast--and concerned about the possible effect on some lawyers who may now be less willing to represent controversial clients vigorously. Said San Francisco Attorney Naomi Litvin Helm: "The judge had to do something. But four years for acting up in a courtroom is a hell of a long time when you consider what some people get for an actual crime of violence."

Appeals may well soften those sentences and probe potentially reversible errors by Hoffman. But the outcome may be confusing. Although the Chicago Seven were acquitted of conspiracy --thanks to the jury that most of them disdained--the courtroom warfare may make it unnecessary for an appeals court to rule on the constitutionality of the antiriot law on First Amendment grounds. Whatever the result, the Chicago trial underscores an old lesson: courts are poor places for resolving ideological conflicts. In a strong democracy, such cases should not be inevitable in times of social stress. When they do occur, the judicial process that stands between reason and brute force must be respected by the judged as well as the judge. It was not respected in Chicago, and the U.S. is poorer for that fact.

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