State Dep’t on Record Opposing Foreign Controversies in U.S.

Max J. Kohler, writer of the following article, is a noted New York lawyer and an authority on immigration and constitutional law, and a former assister U. S. District Attorney in New York. He is a member of the Executive Committee of the American Jewish Committee and a representative of B’nai B’rith on the Joint Council on German Jewish Persecutions.

In this concluding article he discusses the legl aspects of the Nazi propaganda situation in this country and urges that vigorous measures be taken against those who violate our criminal laws by the dissemination of propaganda creating racial hatred.

He also outlines previous cases and legal measures taken to prevent the furtherance of religious and racial bias through various organizations and individuals.

A recent Kentucky decision entitled West vs. Commonwealth 208 Kentucky 735 is of particular interest in this connection. In it, Kentucky’s Supreme Court reviewed the evidence in a prosecution for “breach of the peace” for participation in a Ku Klux Klan demonstration, and held a verdict of conviction justified by the evidence. In it, the chief of police of Somerset, Kentucky, was the defendant, whom the jury had convicted on this charge. A masked parade of Ku Klux Klanners had been publicly arranged for, and forbidden by the appropriate authorities, and warrants were sworn out for the arrest of ring-leaders, should the parade nevertheless take place, which were placed in defendant’s hands for execution. Instead of serving the warrant when the parade took place, he rode at the head of the procession, which bore a banner with the legend “Who says we cannot march?” He was thereupon indicted, though alone of all the participants. Unfortunately, he was brought for trial before a judge who had previously expressed his prejudice and bias against him, and who insisted on presiding at the trial, though challenged for bias under the Kentucky statute. For this technicality, the appellate court reversed. but ordered a new trial on an opinion which ought to leave no doubt as to his being convicted anew.

At present, legislative investigations are being conducted into such un-American racial and religious propaganda, imported from foreign lands. The preliminary report of the Dickstein Sub-Committee of the U. S. House of Representatives Committee on Immigration, entitled “Nazi propaganda by aliens in the United States.” led to the appointment of a new committee with broad powers, it will be remembered. The propriety of prohibiting such propaganda was vigorously expressed in the National Democratic Platform of 1916, on which Woodrow Wilson was elected during the Great War, but before our entry into it, in the following plank:

There is gathered here in America the best of the blood, the industry and the genius of the whole world, the elements of a great race and a magnificent society to be welded into a mighty and splendid nation. Whoever, actuated by the purpose to promote the interest of a foreign power, in disregard of our own country’s welfare or to injure this government in its foreign relations or cripple or destroy its industries at home, and whoever, by arousing prejudices of a racial, religious or other nature, creates discord and strife among our people, so as to obstruct the wholesome process of unification, is faithless to the trust which the privileges of citizenship repose in him and is disloyal to his country. We there fore condemn as subversive to this Nation’s unity and integrity, and as destructive of its welfare, the activities and designs of every group or organization, political or otherwise, that has for its object the advancement of the interest of a foreign power, whether such object is promoted by intimidating the government, a political party or representatives of the people, or which is calculated and tends to divide our people into antagonistic groups, and thus to destroy the complete agreement and solidarity of the people and that unity of sentiment and purpose so essential to the perpetuity of the Nation. and its free institutions.” (Porter: National Party Platforms, p. 376.)

FOREIGN CONTROVERSIES HERE

Our State Department on March 28, 1931, went on record in vigorous opposition to such efforts to transfer to our own shores controversies arising from purely political differences abroad. The occasion was receipt by President Hoover of resolutions adopted at a meeting of Italian War Veterans in this city on February 15, 1931, passed at a mass meeting in which interferences in American affairs had been charged to the Italian Ambassador. The resolutions had been transmitted to the President by Dr. Charles Fama of this city, but the State Department expressed itself in above cited letter to him as follows:

“Sir:

By reference from the White House, I acknowledge receipt of the resolutions passed at a mass meeting of Italian war veterans held at Irving Plaza Hall, in the City of New York, on Feb. 15, 1931, and transmitted by you through the good offices of Senator Copeland.

The resolutions have received due consideration by the appropriate officers of this Government, who have reached the decision that the Royal Italian Ambassador at this capital is not involved in the factional controversies among. Americans of Italian origin described therein, and that no action by this Government is indicated in respect thereto.

This Government, as you are undoubtedly aware, has no interest in controversies arising within groups of American citizens of foreign origin, in respect to questions of internal politics in the countries to which they formerly owed allegiance. It reflects, however, the feeling of all true Americans, in looking forward to the day when such groups will become so thoroughly identified with the country of their adoption that they will cease to engage in futile controversies of that nature. I feel confident that you, and the other gentlemen who signed the resolutions in question, join me in the hope that that day will not be too long delayed, and that you will exert your influence to that end, among the American citizens of Italian origin.

Very truly yours, for the Secretary of State: (Signed) James Crafton Rogers, Assistant Secretary.”

It will be remembered that resort to the boycott was initiated practically officially by the Nazi government when the anti – Jewish boycott of April 1, 1933, was ordered in Germany in alleged resentment of our natural, proper and justifiable publicly proclaimed indignation a Germany’s “setting the clock back” and resorting to assaults on civilization not heard of in an allegedly civilized country since the Middle Ages. Naturally, this German boycott and the outrageous persecutions of which it was an incident, in time gave rise in our own country to a boycott of Germany, participated in by some American Jews and their sympathizers, and by the American Federation of Labor as a unit. The absurdity of the claim that we in this country have no right to concern ourselves with such barbarous medieval persecutions and discriminations as the Nazi regime is resorting to abroad, I have expressed at length in my pamphlet “The United States and German Jewish Persecutions—Precedents for Popular and Governmental Action.” Of course, England, France and Holland and other civilized countries have publicly expressed similar indignation, popular and often governmental, as has also the League of Nations officially.

In that pamphlet I showed, moreover, that Germany was thereby directly violating an express international obligation assumed at the Peace Conference to the United States and the other Allies, to treat her Jewish and other minorities exactly on the basis of the same equal rights she accorded to her Christian “Aryan” inhabitants. That such purely retaliatory boycott–organized in reprisal of an anti-Semitic movement–is not a violation of our law was directly adjudged by our New York Court of Appeals in the closely analagous case of People ex rel Burnham vs. Flynn, 189 N. Y. 180. In that case, the defendant Burnham and other Jewish theatrical proprietors were prosecuted for an alleged unlawful conspiracy for jointly arranging to exclude one James S. Metcalfe from their theatres, and thus “boycotting” him, because Metcalfe had for years published vicious attacks upon them in theatrical reviews. which he wrote, which contained (to quote the Court) “malicious, vile and unjustifiable attacks upon those of the Jewish faith.”

A city magistrate found Burnham guilty and sentenced him to imprisonment, whereupon he instituted habeas corpus proceedings to secure his release. The Supreme Court at special term decided the habeas corpus proceedings against him, but the Appellate Division reversed, ordering his discharge, in an opinion reported in 114 Appellate Division 578. On appeal to the Court of Appeals, that Court also unanimously ordered defendant Burnham’s release and reversed the action of the City Magistrate. In the opinion written for the court by Judge Edward T. Bartlett, he said at p. 185:

“We have here a clear and un-contradicted avowal of the motive that led the managers to exclude Metcalfe from their respective theatres. It was not an attack upon his right to exercise his calling as a dramatic critic, but an effort on the part of the managers to protect themselves from public articles reflecting on their personal integrity and a protest against unjustifiable attacks upon their patrons and members of the Jewish faith. It would be quite out of place, owing to its character, to quote from an article (Exhibit A) written, signed and admitted by Metcalfe as genuine, and introduced in evidence by the relator, which is, to speak with moderation, an unexampled illustration of race bitterness and hatred. A dramatic critic indulging in such intemperate language may reasonably expect to arouse unpleasant antagonism.”

Moreover, such course on the part of temporary visitors, not even admitted for permanent residence, is all the more flagrant and objectionable.

An able article recently published in the American Journal of International Law entitled “The National Boycott as an International Delinquency” by C. L. Bouve, p. 19, et. seq. shows that where an international boycott is involved, directed against persons in another country, much greater leeway is permitted to the organizers of such boycott than where one merely involving people within a state or country is concerned.

The important question suggests itself whether our prosecuting officers will not promptly do their duty and prosecute such Nazi conduct and violations of fundamental principles of civilized life on our own shores. So far, they have contented themselves merely with dealing with a few minor offenders who were presumably guilty merely of disorderly conduct in connection with their resentment illegal combinations and conspiracies of the Nazi mass meeting and the hatched and announced there.

P. S. Since the above was written, I read with deep interest in The Jewish Daily Bulletin of Tuesday the 17th instant that one Charles W. LaCroix of Jersey City was sentenced to ninety days in jail for pasting anti-Semitic posters on shop windows in that city. He admitted that he was a member of the “Silver Shirts,” and said that there was not enough “action” for him in the “Friends of New Germany.” The stickers which he pasted in shop windows originally came from Germany and urged Christians to patronize only Christian doctors and lawyers, to demand Christian entertainment on the stage and radio, and to protest against Jewish judges. This is a concrete illustration of the claim I make above that Nazi anti-Jewish activities in this country are a violation of our criminal laws.