Center for Teaching the Rule of Law

September 14, 1814 – Battle of Baltimore: The poem Defence of Fort McHenry is written by Francis Scott Key.  The poem is later used as the lyrics of The Star-Spangled Banner.

9/14/2021

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PictureThe 15-star, 15-stripe "Star-Spangled Banner" that inspired the poem
Every school child in the US knows that story of how Francis Scott Key penned the poem that eventually became the National Anthem.  It is, surprisingly, one of the few tales of the early Republic that has not been, and has no need to be embellished.  That story will follow, but first, why is the date of the authorship of a poem included  in a post about the history of the Rule of Law?  Surely, while patriotic and inspiring, the anthem has little to do with the Rule of Law.  But of course, it is not the Anthem, but people's use of it as a tool for promoting political ideas, that relates to the Rule of Law.  Contrary to popular belief, no person is required by law to stand or otherwise act in a proscribed way when the anthem is played.  Even members of the Armed Forces in uniform are not subject to any law requiring them to stand at attention and salute -- though to be sure they are required by the Code of Military Conduct to do so when acting in their official capacity as members of the Armed Forces. Although there is a law regarding respect for the Anthem, its provisions are suggestive rather than regulatory.  

When the U.S. national anthem was first recognized by law in 1931, there was no prescription as to behavior during its playing. On June 22, 1942, the law was revised indicating that those in uniform should salute during its playing, while others should simply stand at attention, men removing their hats. The same code also required that women should place their hands over their hearts when the flag is displayed during the playing of the national anthem, but not if the flag was not present. On December 23, 1942, the law was again revised instructing men and women to stand at attention and face in the direction of the music when it was played. That revision also directed men and women to place their hands over their hearts only if the flag was displayed. Those in uniform were required to salute. On July 7, 1976, the law was simplified. Men and women were instructed to stand with their hands over their hearts, men removing their hats, irrespective of whether or not the flag was displayed and those in uniform saluting. On August 12, 1998, the law was rewritten keeping the same instructions, but differentiating between "those in uniform" and "members of the Armed Forces and veterans" who were both instructed to salute during the playing whether or not the flag was displayed. Because of the changes in law over the years and confusion between instructions for the Pledge of Allegiance versus the National Anthem, throughout most of the 20th century many people simply stood at attention or with their hands folded in front of them during the playing of the Anthem, and when reciting the Pledge they would hold their hand (or hat) over their heart. After 9/11, the custom of placing the hand over the heart during the playing of the national anthem became nearly universal.

Since 1998, federal law (viz., the United States Code 36 U.S.C. § 301) states that during a rendition of the national anthem, when the flag is displayed, all present including those in uniform should stand at attention; non-military service individuals should face the flag with the right hand over the heart; members of the Armed Forces and veterans who are present and not in uniform may render the military salute; military service persons not in uniform should remove their headdress with their right hand and hold the headdress at the left shoulder, the hand being over the heart; and members of the Armed Forces and veterans who are in uniform should give the military salute at the first note of the anthem and maintain that position until the last note. The law further provides that when the flag is not displayed, all present should face toward the music and act in the same manner they would if the flag were displayed. Military law requires all vehicles on the installation to stop when the song is played and all individuals outside to stand at attention and face the direction of the music and either salute, in uniform, or place the right hand over the heart, if out of uniform. The law was amended in 2008, and since allows military veterans to salute out of uniform, as well.

The text of 36 U.S.C. § 301 is suggestive and not regulatory in nature. Failure to follow the suggestions is not a violation of the law. This behavioral requirement for the national anthem is subject to the same First Amendment controversies that surround the Pledge of Allegiance.[78] For example, Jehovah's Witnesses do not sing the national anthem, though they are taught that standing is an "ethical decision" that individual believers must make based on their conscience.
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And now the story of the Anthem (in case you need a refresher).

On September 3, 1814, following the Burning of Washington and the Raid on Alexandria, Francis Scott Key and John Stuart Skinner set sail from Baltimore aboard the ship HMS Minden, a cartel ship flying a flag of truce on a mission approved by President James Madison. Their objective was to secure an exchange of prisoners, one of whom was William Beanes, the elderly and popular town physician of Upper Marlboro and a friend of Key who had been captured in his home. Beanes was accused of aiding the arrest of British soldiers. Key and Skinner boarded the British flagship HMS Tonnant on September 7 and spoke with Major General Robert Ross and Vice Admiral Alexander Cochrane over dinner while the two officers discussed war plans. At first, Ross and Cochrane refused to release Beanes but relented after Key and Skinner showed them letters written by wounded British prisoners praising Beanes and other Americans for their kind treatment.

Because Key and Skinner had heard details of the plans for the attack on Baltimore, they were held captive until after the battle, first aboard HMS Surprise and later back on HMS Minden. After the bombardment, certain British gunboats attempted to slip past the fort and effect a landing in a cove to the west of it, but they were turned away by fire from nearby Fort Covington, the city's last line of defense.

During the rainy night, Key had witnessed the bombardment and observed that the fort's smaller "storm flag" continued to fly, but once the shell and Congreve rocket barrage had stopped, he would not know how the battle had turned out until dawn. On the morning of September 14, the storm flag had been lowered and the larger flag had been raised. During the bombardment, HMS Terror and HMS Meteor provided some of the "bombs bursting in air".

Key was inspired by the U.S. victory and the sight of the large U.S. flag flying triumphantly above the fort. This flag, with fifteen stars and fifteen stripes, had been made by Mary Young Pickersgill together with other workers in her home on Baltimore's Pratt Street. The flag later came to be known as the Star-Spangled Banner, and is today on display in the National Museum of American History, a treasure of the Smithsonian Institution. It was restored in 1914 by Amelia Fowler, and again in 1998 as part of an ongoing conservation program.

Aboard the ship the next day, Key wrote a poem on the back of a letter he had kept in his pocket. At twilight on September 16, he and Skinner were released in Baltimore. He completed the poem at the Indian Queen Hotel, where he was staying, and titled it "Defence of Fort M'Henry". It was first published nationally in The Analectic Magazine.

Key gave the poem to his brother-in-law Joseph H. Nicholson who saw that the words fit the popular melody "The Anacreontic Song", by English composer John Stafford Smith. This was the official song of the Anacreontic Society, an 18th-century gentlemen's club of amateur musicians in London. Nicholson took the poem to a printer in Baltimore, who anonymously made the first known broadside printing on September 17; of these, two known copies survive.

On September 20, both the Baltimore Patriot and The American printed the song, with the note "Tune: Anacreon in Heaven". The song quickly became popular, with seventeen newspapers from Georgia to New Hampshire printing it. Soon after, Thomas Carr of the Carr Music Store in Baltimore published the words and music together under the title "The Star Spangled Banner", although it was originally called "Defence of Fort M'Henry". Thomas Carr's arrangement introduced the raised fourth which became the standard deviation from "The Anacreontic Song".[15] The song's popularity increased and its first public performance took place in October when Baltimore actor Ferdinand Durang sang it at Captain McCauley's tavern. Washington Irving, then editor of the Analectic Magazine in Philadelphia, reprinted the song in November 1814.

By the early 20th century, there were various versions of the song in popular use. Seeking a singular, standard version, President Woodrow Wilson tasked the U.S. Bureau of Education with providing that official version. In response, the Bureau enlisted the help of five musicians to agree upon an arrangement. Those musicians were Walter Damrosch, Will Earhart, Arnold J. Gantvoort, Oscar Sonneck and John Philip Sousa. The standardized version that was voted upon by these five musicians premiered at Carnegie Hall on December 5, 1917, in a program that included Edward Elgar's Carillon and Gabriel Pierné's The Children's Crusade. The concert was put on by the Oratorio Society of New York and conducted by Walter Damrosch. An official handwritten version of the final votes of these five men has been found and shows all five men's votes tallied, measure by measure.

The song gained popularity throughout the 19th century and bands played it during public events, such as Independence Day celebrations.  A plaque displayed at Fort Meade, South Dakota, claims that the idea of making "The Star Spangled Banner" the national anthem began on their parade ground in 1892. Colonel Caleb Carlton, post commander, established the tradition that the song be played "at retreat and at the close of parades and concerts." Carlton explained the custom to Governor Sheldon of South Dakota who "promised me that he would try to have the custom established among the state militia." Carlton wrote that after a similar discussion, Secretary of War Daniel S. Lamont issued an order that it "be played at every Army post every evening at retreat."

In 1899, the U.S. Navy officially adopted "The Star-Spangled Banner". In 1916, President Woodrow Wilson ordered that "The Star-Spangled Banner" be played at military[19] and other appropriate occasions. The playing of the song two years later during the seventh-inning stretch of Game One of the 1918 World Series, and thereafter during each game of the series is often cited as the first instance that the anthem was played at a baseball game, though evidence shows that the "Star-Spangled Banner" was performed as early as 1897 at opening day ceremonies in Philadelphia and then more regularly at the Polo Grounds in New York City beginning in 1898. In any case, the tradition of performing the national anthem before every baseball game began in World War II.

On April 10, 1918, John Charles Linthicum, U.S. congressman from Maryland, introduced a bill to officially recognize "The Star-Spangled Banner" as the national anthem. The bill did not pass.[22] On April 15, 1929, Linthicum introduced the bill again, his sixth time doing so. On November 3, 1929, Robert Ripley drew a panel in his syndicated cartoon, Ripley's Believe it or Not!, saying "Believe It or Not, America has no national anthem".

In 1930, Veterans of Foreign Wars started a petition for the United States to officially recognize "The Star-Spangled Banner" as the national anthem. Five million people signed the petition. The petition was presented to the United States House Committee on the Judiciary on January 31, 1930.] On the same day, Elsie Jorss-Reilley and Grace Evelyn Boudlin sang the song to the committee to refute the perception that it was too high pitched for a typical person to sing. The committee voted in favor of sending the bill to the House floor for a vote. The House of Representatives passed the bill later that year.] The Senate passed the bill on March 3, 1931. President Herbert Hoover signed the bill on March 4, 1931, officially adopting "The Star-Spangled Banner" as the national anthem of the United States of America. As currently codified, the United States Code states that "[t]he composition consisting of the words and music known as the Star-Spangled Banner is the national anthem." Although all four stanzas of the poem officially compose the National Anthem, only the first stanza is generally sung, the other three being much lesser known.[citation needed]

In the fourth verse, Key's 1814 published version of the poem is written as, "And this be our motto-"In God is our trust!"" In 1956 when 'In God We Trust' was under consideration to be adopted as the national motto of the United States by the US Congress, the words of the fourth verse of The Star Spangled Banner were brought up in arguments supporting adoption of the motto.

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August 5, 1735 – Freedom of the press: New York Weekly Journal writer John Peter Zenger is acquitted of seditious libel against the royal governor of New York, on the basis that what he had published was true.

8/5/2021

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John Peter Zenger (October 26, 1697 – July 28, 1746) was a German printer and journalist in New York City. Zenger printed The New York Weekly Journal. He was accused of libel in 1734 by William Cosby, the royal governor of New York, but the jury acquitted Zenger, who became a symbol for freedom of the press.

In 1733, Zenger began printing The New York Weekly Journal, which voiced opinions critical of the colonial governor, William Cosby. On November 17, 1734, on Cosby's orders, the sheriff arrested Zenger. After a grand jury refused to indict him, the Attorney General Richard Bradley charged him with libel in August 1735. Zenger's lawyers, Andrew Hamilton and William Smith, Sr., successfully argued that truth is a defense against charges of libel.

In 1733, Zenger printed copies of newspapers in New York to voice his disagreement with the actions of the newly appointed colonial governor William Cosby. On his arrival in New York City, Cosby had plunged into a rancorous quarrel with the council of the colony over his salary. Unable to control the colony's supreme court, he removed Chief Justice Lewis Morris, replacing him with James DeLancey of the Royal Party. Supported by members of the Popular Party, Zenger's New-York Weekly Journal continued to publish articles critical of the royal governor. Finally, Cosby issued a proclamation condemning the newspaper's "divers scandalous, virulent, false and seditious reflections."

Zenger was charged with libel. James Alexander was Zenger's first counsel, but the court found him in contempt and removed him from the case. After more than eight months in prison, Zenger went to trial, defended by the Philadelphia lawyer Andrew Hamilton and the New York lawyer William Smith, Sr. The case was now a cause célèbre, with public interest at fever-pitch. Rebuffed repeatedly by chief justice James DeLancey during the trial, Hamilton decided to plead his client's case directly to the jury. After the lawyers for both sides finished their arguments, the jury retired, only to return in ten minutes with a verdict of not guilty.

In defending Zenger in this landmark case, Hamilton and Smith attempted to establish the precedent that a statement, even if defamatory, is not libelous if it can be proved, thus affirming freedom of the press in America; however, succeeding royal governors clamped down on freedom of the press until the American Revolution. This case is the groundwork of freedom of the press, not its legal precedent. As late as 1804, the journalist Harry Croswell lost a series of prosecutions and appeals because truth was not a defense against libel, as decided by the New York Court of Appeals in People v. Croswell. It was only the following year that the assembly, reacting to this verdict, passed a law that allowed truth as a defense against a charge of libel.

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July 15, 1888 - The first edition of Printer's Ink is Issued

7/15/2021

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Printers' Ink was an American trade magazine launched in 1888 by George P. Rowell. It was the first national trade magazine for advertising. It was renamed Marketing/Communications in 1967 and ceased publication in 1972.

Printers' Ink was famous for proposing a model law that created criminal penalties for false advertising in 1911. It was widely adopted in states, however few prosecutors brought cases under it, because of prosecutorial resource constraints, and because it imposed strict liability (that is, the state did not have to prove intent to deceive) on false advertisers.

Nonetheless, it was among the first efforts to define the limits to which the government could restrain commercial speech, an issue that would dominate much of the 20th century with respect to censorship of both existing and new forms of media.  The debate whether, and to what extent, the government should involve itself in regulating private speech in public venues continues today as social media and other forms of mass communication extend the power of the written and spoken word in ways not imaginable in the 18th century when the First Amendment was drafted.


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July 14, 1798 – The Sedition Act of 1798, commonly paired in a historical context as part of the "Alien and Sedition Acts," becomes law in the United States making it a federal crime to write, publish, or utter false or malicious statements about the

7/14/2021

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PicturePresident John Adams
The Alien and Sedition Acts were four acts passed by the Federalist-dominated 5th United States Congress and signed into law by President John Adams in 1798. They made it harder for an immigrant to become a citizen (Naturalization Act), allowed the president to imprison and deport non-citizens who were deemed dangerous ("An Act Concerning Aliens", also known as the Alien Friends Act of 1798) or who were from a hostile nation (Alien Enemy Act of 1798), and criminalized making 'false statements' critical of the federal government (Sedition Act of 1798). The Alien Friends Act expired two years after its passage, and the Sedition Act expired on 3 March 1801, while the Naturalization Act and Alien Enemies Act had no expiration clause.

The Federalists argued that the bills strengthened national security during the Quasi-War, an undeclared naval war with France from 1798 to 1800. Critics argued that they were primarily an attempt to suppress voters who disagreed with the Federalist party and its teachings, and violated the right of freedom of speech in the First Amendment.

The Naturalization Act increased the residency requirement for American citizenship from five to fourteen years. At the time, the majority of immigrants supported Thomas Jefferson and the Democratic-Republicans, the political opponents of the Federalists. The Alien Friends Act allowed the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States" at any time, while the Alien Enemies Act authorized the president to do the same to any male citizen of a hostile nation above the age of fourteen during times of war. Lastly, the controversial Sedition Act restricted speech that was critical of the federal government. Under the Sedition Act, the Federalists allowed people who were accused of violating the sedition laws to use truth as a defense. The Sedition Act resulted in the prosecution and conviction of many Jeffersonian newspaper owners who disagreed with the government.

The acts were denounced by Democratic-Republicans and ultimately helped them to victory in the 1800 election, when Thomas Jefferson defeated the incumbent, President Adams. The Sedition Act and the Alien Friends Act were allowed to expire in 1800 and 1801, respectively. The Alien Enemies Act, however, remains in effect as Chapter 3; Sections 21–24 of Title 50 of the United States Code. It was used by the government to identify and imprison allegedly "dangerous enemy" aliens from Germany, Japan, and Italy in World War II. (This was separate from the Japanese internment camps used to remove people of Japanese descent from the West Coast.) After the war they were deported to their home countries. In 1948 the Supreme Court determined that presidential powers under the acts continued after cessation of hostilities until there was a peace treaty with the hostile nation. The revised Alien Enemies Act remains in effect today.

After the passage of the highly unpopular Alien and Sedition Acts, protests occurred across the country, with some of the largest being seen in Kentucky, where the crowds were so large they filled the streets and the entire town square. Noting the outrage among the populace, the Democratic-Republicans made the Alien and Sedition Acts an important issue in the 1800 election campaign. Upon assuming the Presidency, Thomas Jefferson pardoned those still serving sentences under the Sedition Act, and Congress soon repaid their fines. It has been said that the Alien Acts were aimed at Albert Gallatin, and the Sedition Act aimed at Benjamin Bache's Aurora.[better source needed] While government authorities prepared lists of aliens for deportation, many aliens fled the country during the debate over the Alien and Sedition Acts, and Adams never signed a deportation order.

The Virginia and Kentucky state legislatures also passed the Kentucky and Virginia Resolutions, secretly authored by Thomas Jefferson and James Madison, denouncing the federal legislation. While the eventual resolutions followed Madison in advocating "interposition", Jefferson's initial draft would have nullified the Acts and even threatened secession. Jefferson's biographer Dumas Malone argued that this might have gotten Jefferson impeached for treason, had his actions become known at the time.[30] In writing the Kentucky Resolutions, Jefferson warned that, "unless arrested at the threshold", the Alien and Sedition Acts would "necessarily drive these states into revolution and blood".

The Alien and Sedition Acts were never appealed to the Supreme Court, whose power of judicial review was not clearly established until Marbury v. Madison in 1803. Subsequent mentions in Supreme Court opinions beginning in the mid-20th century have assumed that the Sedition Act would today be found unconstitutional.

Prominent prosecutions under the Sedition Act include:
  • James Thomson Callender, a British subject, had been expelled from Great Britain for his political writings. Living first in Philadelphia, then seeking refuge close by in Virginia, he wrote a book titled The Prospect Before Us (read and approved by Vice President Jefferson before publication) in which he called the Adams administration a "continual tempest of malignant passions" and the President a "repulsive pedant, a gross hypocrite and an unprincipled oppressor." Callender, already residing in Virginia and writing for the Richmond Examiner, was indicted in mid-1800 under the Sedition Act and convicted, fined $200, and sentenced to nine months in jail.
  • Matthew Lyon was a Democratic-Republican congressman from Vermont. He was the first individual to be placed on trial under the Alien and Sedition Acts. He was indicted in 1800 for an essay he had written in the Vermont Journal accusing the administration of "ridiculous pomp, foolish adulation, and selfish avarice." While awaiting trial, Lyon commenced publication of Lyon's Republican Magazine, subtitled "The Scourge of Aristocracy". At trial, he was fined $1,000 and sentenced to four months in jail. After his release, he returned to Congress.
  • Benjamin Franklin Bache was editor of the Philadelphia Aurora, a Democratic-Republican newspaper. Bache had accused George Washington of incompetence and financial irregularities, and "the blind, bald, crippled, toothless, querulous Adams" of nepotism and monarchical ambition. He was arrested in 1798 under the Sedition Act, but he died of yellow fever before trial.
  • Anthony Haswell was an English immigrant and a printer of the Jeffersonian Vermont Gazette. Haswell had reprinted from the Aurora Bache's claim that the federal government employed Tories, also publishing an advertisement from Lyon's sons for a lottery to raise money for his fine that decried Lyon's oppression by jailers exercising "usurped powers". Haswell was found guilty of seditious libel by judge William Paterson, and sentenced to a two-month imprisonment and a $200 fine.
  • Luther Baldwin was indicted, convicted, and fined $100 for a drunken incident that occurred during a visit by President Adams to Newark, New Jersey. Upon hearing a gun report during a parade, he yelled "I hope it hit Adams in the arse."
  • In November 1798, David Brown led a group in Dedham, Massachusetts, including Benjamin Fairbanks, in setting up a liberty pole with the words, "No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long Live the Vice President." Brown was arrested in Andover, Massachusetts, but because he could not afford the $4,000 bail, he was taken to Salem for trial.[19] Brown was tried in June 1799. Brown pleaded guilty, but Justice Samuel Chase asked him to name others who had assisted him. Brown refused, was fined $480 (equivalent to $7,300 in 2020), and sentenced to eighteen months in prison, the most severe sentence imposed under the Sedition Act.

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July 10, 1925 – Scopes Trial: In Dayton, Tennessee, the so-called "Monkey Trial" begins of John T. Scopes, a young high school science teacher accused of teaching evolution in violation of the Butler Act.

7/10/2021

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PictureJohn T. Scopes
​The Scopes Trial, formally known as The State of Tennessee v. John Thomas Scopes and commonly referred to as the Scopes Monkey Trial, was an American legal case in July 1925 in which a high school teacher, John T. Scopes, was accused of violating Tennessee's Butler Act, which had made it unlawful to teach human evolution in any state-funded school. The trial was deliberately staged in order to attract publicity to the small town of Dayton, Tennessee, where it was held. Scopes was unsure whether he had ever actually taught evolution, but he incriminated himself deliberately so the case could have a defendant.

Scopes was found guilty and fined $100 (equivalent to $1,500 in 2020), but the verdict was overturned on a technicality. The trial served its purpose of drawing intense national publicity, as national reporters flocked to Dayton to cover the big-name lawyers who had agreed to represent each side. William Jennings Bryan, three-time presidential candidate and former Secretary of State, argued for the prosecution, while Clarence Darrow served as the defense attorney for Scopes. The trial publicized the Fundamentalist–Modernist controversy, which set Modernists, who said evolution was not inconsistent with religion, against Fundamentalists, who said the Word of God as revealed in the Bible took priority over all human knowledge. The case was thus seen both as a theological contest and as a trial on whether modern science should be taught in schools.

State Representative John Washington Butler, a Tennessee farmer and head of the World Christian Fundamentals Association, lobbied state legislatures to pass anti-evolution laws. He succeeded when the Butler Act was passed in Tennessee, on March 25, 1925. Butler later stated, "I didn't know anything about evolution ... I'd read in the papers that boys and girls were coming home from school and telling their fathers and mothers that the Bible was all nonsense." Tennessee governor Austin Peay signed the law to gain support among rural legislators, but believed the law would neither be enforced nor interfere with education in Tennessee schools. William Jennings Bryan thanked Peay enthusiastically for the bill: "The Christian parents of the state owe you a debt of gratitude for saving their children from the poisonous influence of an unproven hypothesis."

In response, the American Civil Liberties Union financed a test case in which John Scopes, a Tennessee high school science teacher, agreed to be tried for violating the Act. Scopes, who had substituted for the regular biology teacher, was charged on May 5, 1925, with teaching evolution from a chapter in George William Hunter's textbook, Civic Biology: Presented in Problems (1914), which described the theory of evolution, race, and eugenics. The two sides brought in the biggest legal names in the nation, William Jennings Bryan for the prosecution and Clarence Darrow for the defense, and the trial was followed on radio transmissions throughout the United States.

The American Civil Liberties Union (ACLU) offered to defend anyone accused of teaching the theory of evolution in defiance of the Butler Act. On April 5, 1925, George Rappleyea, local manager for the Cumberland Coal and Iron Company, arranged a meeting with county superintendent of schools Walter White and local attorney Sue K. Hicks at Robinson's Drug Store, convincing them that the controversy of such a trial would give Dayton much needed publicity. According to Robinson, Rappleyea said, "As it is, the law is not enforced. If you win, it will be enforced. If I win, the law will be repealed. We're game, aren't we?" The men then summoned 24-year-old John T. Scopes, a Dayton high school science and math teacher. The group asked Scopes to admit to teaching the theory of evolution.

Rappleyea pointed out that, while the Butler Act prohibited the teaching of the theory of evolution, the state required teachers to use a textbook that explicitly described and endorsed the theory of evolution, and that teachers were, therefore, effectively required to break the law. Scopes mentioned that while he couldn't remember whether he had actually taught evolution in class, he had, however, gone through the evolution chart and chapter with the class. Scopes added to the group: "If you can prove that I've taught evolution and that I can qualify as a defendant, then I'll be willing to stand trial."

Scopes urged students to testify against him and coached them in their answers. He was indicted on May 25, after three students testified against him at the grand jury; one student afterwards told reporters, "I believe in part of evolution, but I don't believe in the monkey business." Judge John T. Raulston accelerated the convening of the grand jury and "... all but instructed the grand jury to indict Scopes, despite the meager evidence against him and the widely reported stories questioning whether the willing defendant had ever taught evolution in the classroom".[16] Scopes was charged with having taught from the chapter on evolution to a high-school class in violation of the Butler Act and nominally arrested, though he was never actually detained. Paul Patterson, owner of The Baltimore Sun, put up $500 in bail for Scopes.

The original prosecutors were Herbert E. and Sue K. Hicks, two brothers who were local attorneys and friends of Scopes, but the prosecution was ultimately led by Tom Stewart, a graduate of Cumberland School of Law, who later became a U.S. Senator. Stewart was aided by Dayton attorney Gordon McKenzie, who supported the anti-evolution bill on religious grounds, and described evolution as "detrimental to our morality" and an assault on "the very citadel of our Christian religion".


Baptist pastor William Bell Riley, the founder and president of the World Christian Fundamentals Association, was instrumental in calling lawyer and three-time Democratic presidential nominee, former United States Secretary of State, and lifelong Presbyterian William Jennings Bryan to act as that organization's counsel. Bryan had originally been invited by Sue Hicks to become an associate of the prosecution and Bryan had readily accepted, despite the fact he had not tried a case in thirty-six years. As Scopes pointed out to James Presley in the book Center of the Storm, on which the two collaborated: "After [Bryan] was accepted by the state as a special prosecutor in the case, there was never any hope of containing the controversy within the bounds of constitutionality."

In response, the defense sought out Clarence Darrow, an agnostic. Darrow originally declined, fearing his presence would create a circus atmosphere, but eventually realized that the trial would be a circus with or without him, and agreed to lend his services to the defense, later saying he "realized there was no limit to the mischief that might be accomplished unless the country was aroused to the evil at hand". After many changes back and forth, the defense team consisted of Darrow, ACLU attorney Arthur Garfield Hays, Dudley Field Malone, an international divorce lawyer who had worked at the State Department, W.O. Thompson, who was Darrow's law partner, and F.B. McElwee. The defense was also assisted by librarian and Biblical authority Charles Francis Potter, who was a Modernist Unitarian preacher.

The prosecution team was led by Tom Stewart, district attorney for the 18th Circuit (and future United States Senator), and included, in addition to Herbert and Sue Hicks, Ben B. McKenzie and William Jennings Bryan.

The trial was covered by journalists from the South and around the world, including H. L. Mencken for The Baltimore Sun, which was also paying part of the defense's expenses. It was Mencken who provided the trial with its most colorful labels such as the "Monkey Trial" of "the infidel Scopes". It was also the first United States trial to be broadcast on national radio.

The ACLU had originally intended to oppose the Butler Act on the grounds that it violated the teacher's individual rights and academic freedom, and was therefore unconstitutional. Principally because of Clarence Darrow, this strategy changed as the trial progressed. The earliest argument proposed by the defense once the trial had begun was that there was actually no conflict between evolution and the creation account in the Bible; later, this viewpoint would be called theistic evolution. In support of this claim, they brought in eight experts on evolution. But other than Dr. Maynard Metcalf, a zoologist from Johns Hopkins University, the judge would not allow these experts to testify in person. Instead, they were allowed to submit written statements so their evidence could be used at the appeal. In response to this decision, Darrow made a sarcastic comment to Judge Raulston (as he often did throughout the trial) on how he had been agreeable only on the prosecution's suggestions. Darrow apologized the next day, keeping himself from being found in contempt of court.

The presiding judge, John T. Raulston, was accused of being biased towards the prosecution and frequently clashed with Darrow. At the outset of the trial, Raulston quoted Genesis and the Butler Act. He also warned the jury not to judge the merit of the law (which would become the focus of the trial) but on the violation of the Act, which he called a 'high misdemeanor'. The jury foreman himself was unconvinced of the merit of the Act but he acted, as did most of the jury, on the instructions of the judge.

Bryan chastised evolution for teaching children that humans were but one of 35,000 types of mammals and bemoaned the notion that human beings were descended "Not even from American monkeys, but from old world monkeys".

Darrow responded for the defense in a speech that was universally considered the oratorical climax of the trial.[29] Arousing fears of "inquisitions", Darrow argued that the Bible should be preserved in the realm of theology and morality and not put into a course of science. In his conclusion, Darrow declared that Bryan's "duel to the death" against evolution should not be made one-sided by a court ruling that took away the chief witnesses for the defense. Darrow promised there would be no duel because "there is never a duel with the truth." The courtroom went wild when Darrow finished; Scopes declared Darrow’s speech to be the dramatic high point of the entire trial and insisted that part of the reason Bryan wanted to go on the stand was to regain some of his tarnished glory.

On the sixth day of the trial, the defense ran out of witnesses. The judge declared that all the defense testimony on the Bible was irrelevant and should not be presented to the jury (which had been excluded during the defense). On the seventh day of the trial, the defense asked the judge to call Bryan as a witness to question him on the Bible, as their own experts had been rendered irrelevant; Darrow had planned this the day before and called Bryan a "Bible expert". This move surprised those present in the court, as Bryan was a counsel for the prosecution and Bryan himself (according to a journalist reporting the trial) never made a claim of being an expert, although he did tout his knowledge of the Bible. This testimony revolved around several questions regarding Biblical stories and Bryan's beliefs (as shown below); this testimony culminated in Bryan declaring that Darrow was using the court to "slur the Bible" while Darrow replied that Bryan's statements on the Bible were "foolish".

On the seventh day of the trial, Clarence Darrow took the unorthodox step of calling William Jennings Bryan, counsel for the prosecution, to the stand as a witness in an effort to demonstrate that belief in the historicity of the Bible and its many accounts of miracles was unreasonable. Bryan accepted, on the understanding that Darrow would in turn submit to questioning by Bryan. Although Hays would claim in his autobiography that the examination of Bryan was unplanned, Darrow spent the night before in preparation. The scientists the defense had brought to Dayton—and Charles Francis Potter, a modernist minister who had engaged in a series of public debates on evolution with the fundamentalist preacher John Roach Straton—prepared topics and questions for Darrow to address to Bryan on the witness stand. Kirtley Mather, chairman of the geology department at Harvard and also a devout Baptist, played Bryan and answered questions as he believed Bryan would. Raulston had adjourned court to the stand on the courthouse lawn, ostensibly because he was "afraid of the building" with so many spectators crammed into the courtroom, but probably because of the stifling heat.

An area of questioning involved the book of Genesis, including questions about whether Eve was actually created from Adam's rib, where Cain got his wife, and how many people lived in Ancient Egypt. Darrow used these examples to suggest that the stories of the Bible could not be scientific and should not be used in teaching science with Darrow telling Bryan, "You insult every man of science and learning in the world because he does not believe in your fool religion." Bryan's declaration in response was, "The reason I am answering is not for the benefit of the superior court. It is to keep these gentlemen from saying I was afraid to meet them and let them question me, and I want the Christian world to know that any atheist, agnostic, unbeliever, can question me anytime as to my belief in God, and I will answer him."

Stewart objected for the prosecution, demanding to know the legal purpose of Darrow's questioning. Bryan, gauging the effect the session was having, snapped that its purpose was "to cast ridicule on everybody who believes in the Bible". Darrow, with equal vehemence, retorted, "We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States."

A few more questions followed in the charged open-air courtroom. Darrow asked where Cain got his wife; Bryan answered that he would "leave the agnostics to hunt for her". When Darrow addressed the issue of the temptation of Eve by the serpent, Bryan insisted that the Bible be quoted verbatim rather than allowing Darrow to paraphrase it in his own terms. However, after another angry exchange, Judge Raulston banged his gavel, adjourning the court.

The confrontation between Bryan and Darrow lasted approximately two hours on the afternoon of the seventh day of the trial. It is likely that it would have continued the following morning but for Judge Raulston's announcement that he considered the whole examination irrelevant to the case and his decision that it should be "expunged" from the record. Thus Bryan was denied the chance to cross-examine the defense lawyers in return, although after the trial Bryan would distribute nine questions to the press to bring out Darrow's "religious attitude". The questions and Darrow's short answers were published in newspapers the day after the trial ended, with The New York Times characterizing Darrow as answering Bryan's questions "with his agnostic's creed, 'I don't know,' except where he could deny them with his belief in natural, immutable law".

Scopes never testified since there was never a factual issue as to whether he had taught evolution. Scopes later admitted that, in reality, he was unsure of whether he had taught evolution (another reason the defense did not want him to testify), but the point was not contested at the trial.

After eight days of trial, it took the jury only nine minutes to deliberate. Scopes was found guilty on July 21 and ordered by Raulston to pay a $100 fine (equivalent to $1,500 in 2020). Raulston imposed the fine before Scopes was given an opportunity to say anything about why the court should not impose punishment upon him and after Neal brought the error to the judge's attention the defendant spoke for the first and only time in court:  Your honor, I feel that I have been convicted of violating an unjust statute. I will continue in the future, as I have in the past, to oppose this law in any way I can. Any other action would be in violation of my ideal of academic freedom—that is, to teach the truth as guaranteed in our constitution, of personal and religious freedom. I think the fine is unjust.

Although the Tennessee Supreme Court upheld the statute as constitutional, it reversed Scopes conviction on technical grounds because the judge, not the jury, imposed the fine.  At that time, only a jury could impose a fine of greater than $50.  Because Scopes was not longer employed by the state, the Supreme Court simply dismissed the case rather than remand it back for a new sentencing proceeding.

In 1968, the Supreme Court of the United States ruled in Epperson v. Arkansas 393 U.S. 97 (1968) that such bans contravene the Establishment Clause of the First Amendment because their primary purpose is religious. Tennessee had repealed the Butler Act the previous year.

Bryan died suddenly five days after the trial's conclusion. The connection between the trial and his death is still debated by historians.



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June 23, 2021 -- US Supreme Court sides with high school cheerleader who cursed online

6/23/2021

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PictureJustice Stephen Breyer
History as it happens:

​The Supreme Court ruled in favor of a former high school cheerleader who argued that she could not be punished by her public school for posting a profanity-laced caption on Snapchat when she was off school grounds.

The 8-1 majority opinion was penned by Justice Stephen Breyer.

"It might be tempting to dismiss (the student's) words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary," Breyer wrote.

Breyer said that the court has made clear that students "do not shed their constitutional rights to freedom of speech or expression even 'at the school house gate."

"But," he said, "we have also made clear that courts must apply the First Amendment in light of the special characteristics of the school environment."

Justice Clarence Thomas dissented, writing that students like the former cheerleader "who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs."

"For example, a profanity-laced screed delivered on social media or at the mall has a much different effect on a football program when done by a regular student than when done by the captain of the football team. So, too, here," Thomas wrote.

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June 21, 1768 – James Otis Jr. offends the King and Parliament in a speech to the Massachusetts General Court.

6/21/2021

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PictureJames Otis
James Otis Jr. (February 5, 1725 – May 23, 1783) was an American lawyer, political activist, pamphleteer, and legislator in Boston, a member of the Massachusetts provincial assembly, and an early advocate of the Patriot views against the policy of Parliament which led to the American Revolution. His well-known catchphrase "Taxation without Representation is tyranny" became the basic Patriot position.

On June 21,  1768, James Otis, Jr. gave a characteristically fiery speech to his fellow legislators in Boston. He referred to the British House of Commons as a gathering of "button-makers, horse jockey gamesters, pensioners, pimps, and whore-masters." The colony's royal governor denounced Otis's tirade as the most "insolent. . . treasonable declamation that perhaps was ever delivered." Otis's speech in June 1768 was one of many that attacked Parliament for its efforts to squeeze more revenue from the American colonies. His insistence that "a man's house is his castle" and later that there be "no taxation without representation" remain etched in our collective memory long after his name, and his role in the events leading up to the Revolution, have been forgotten.

John Adams and Thomas Hutchinson, the Crown-appointed governor of Massachusetts between 1771 and 1774, agreed on at least one point: the story of the American Revolution began with James Otis, Jr. Fifty years after Otis delivered a blistering attack on the British use of Writs of Assistance (general search warrants), Adams wrote, "Then and there the child Independence was born." Yet, even before the first shots were fired at Lexington and Concord, James Otis had already disappeared from public view.

James Otis, Jr., was born in 1725 in the Cape Cod village of West Barnstable. A prominent figure in Massachusetts politics, his father represented Barnstable in the General Court for many years. James Jr. graduated from Harvard College in 1743 and then studied law under one of Boston's most respected attorneys.

The younger Otis began practicing in Plymouth but soon moved to Boston, where he quickly made a name for himself as one of the city's most brilliant lawyers. His legal skills, together with his political connections, won him appointments as justice of the peace in 1756 and, the following year, as advocate general, an even higher position.

n 1761 he resigned his post in protest over the Writs of Assistance. English authorities had decided to crack down on the colonial merchants and ship owners who had long avoided paying duties on imported goods. Rather than openly defying the Acts of Trade, which regulated commerce throughout the British Empire and benefited the Mother Country over everyone else, colonists simply engaged in extensive smuggling. In 1760 the Crown authorized the use of Writs of Assistance. These documents gave customs officials the right to search for contraband wherever they suspected it might be hidden. Had Otis remained as advocate general, it would have been his job to prosecute the smugglers.

Instead, he agreed to represent Boston's merchants — for free. In February 1761 he made a five-hour presentation before a panel of justices. He argued that the Writs were "instruments of slavery" allowing any "petty officer" to act as a "tyrant." He declared that "one of the most essential branches of English liberty is the freedom of one's home," and the warrants would violate that right. In spite of the eloquence and power of his arguments, Otis failed to convince the justices; they ruled that the writs were legal.

Suddenly Otis had the attention and respect of more than just the judicial and political elite. Two months later, Boston voters elected him to represent them in the General Court. He would serve there for most of the next ten years.

Like many other colonists, Otis became disenchanted with England only gradually. While he objected to the governor spending money without the legislature's consent, in 1762 he still believed that "the British Constitution of government, as now established in His Majesty's person and family, is the wisest and best in the world." The king was the "most glorious monarch upon the globe and his subjects the happiest in the universe."

Over the next two years, his views grew more radical. In a 1764 pamphlet, The Rights of the British Colonies Asserted and Proved, he returned to the issue of how revenue was raised and spent. "The very act of taxing, except over those who are represented, appears to me to be depriving them of one of their most essential rights as freemen." Time and again, in speeches and pamphlets, he would insist that "no one should be taxed without representation."

Otis became more and more involved in the struggle against royal control. When Parliament passed the Townshend Act imposing new taxes on the colonies, he and Samuel Adams drafted an open letter to all the colonies denouncing the law as "obviously unconstitutional" and urging collective action to get it repealed. By then the king had appointed Thomas Hutchinson Governor of Massachusetts. Hutchinson demanded that the letter be retracted. On June 21, 1768, James Otis delivered his response on the floor of the General Court. After nine days of debate, the Massachusetts House voted 92 to 17 to defy the governor.

​These were tense times for the men and women of Massachusetts. In Otis's own family, his wife and father-in-law were staunch Loyalists. Most colonists still regarded themselves as British subjects. To speak against the king or parliament was nothing less than treason. Tempers were running high. On September 5, 1769, a Boston customs collector offended by something Otis had written attacked him with a sword, fracturing his skull. Otis had already shown signs of mental instability; after the assault, his sister wrote, "the future usefulness of this distinguished friend of his country was destroyed, reason was shaken from its throne."

In January 1770, John Adams remarked sadly that the man he had once described as "a flame of fire" now "rambles and wanders like a ship without a helm." At the State House he broke windows, burned his papers, and fired his rifle. In 1771 he was "judged a lunatic" and the court appointed his brother to be his guardian.

Eventually, Otis moved in with an old friend in Andover and lived the remaining years of his life there. In a letter to his sister, he wrote, "I hope when God Almighty, in his righteous providence, shall take me out of time into eternity, that it will be by a flash of lightening." And so it was. On May 23, 1783, James Otis stood in the doorway chatting with his friends who were seated inside. Suddenly a storm came up. Thunder shook the house, and a bolt of lightning struck him dead. He was 58 years old.

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May 12, 1593 -- Thomas Kyd is Arrested for libel

5/12/2021

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It may at first seem odd to include in a topic dedicated to the history of the Rule of Law the arrest of an obscure Elizabethan playwright on a charge of libel.  However, there is much more to the story than that.  First, though obscure, Kyd is considered by scholars to be one of the most important figures in the development of Elizabethan drama.  An intimate of Christopher Marlow, Kyd is thought to be the author of the Ur-Hamlet, the term used to describe a play, now lost, that appeared several years before Shakespeare's Hamlet.  Likewise, he is thought to have been the author of King Leir, which preceded Shakespeare's King Lear by almost a decade. Kyd's The Spanish Tragedy is considered to be on  par with the other great works of the age.

So apart from establishing the importance of copyright, what about Kyd's life recommends him for this blog?  It is the fact that his arrest for "libel" was actually based on the belief that Kyd (and Marlow and others within London's theater community) were atheists and/or homosexuals -- both crimes at that time.  The "libels" in question were handbills that had been posted through London in the Spring of 1593 which, among other blasphemies, denied the divinity of Christ ("Arianism").  One of these, the "Dutch Libel" was written in a style that mimicked Marlow's poetry and was thought to have been composed by him or one of the other playwrights or poets within his circle.  On May 11, 1593, the Privy Council, who served as advisors to the Queen and at the time were charged with enforcing public morality, called for the arrest of anyone suspected of being involved with the libels.  

The following day, Kyd was among the first to be arrested under the order of the Privy Council.  A search of his room resulted in the discovery of an Arianist tract (probably belonging to Marlow, who had shared the room with Kyd in the past and left many of his possessions there).  Kyd was cruelly tortured, forced to confess, and made to sign a statement implicating Marlow.  Marlow was subsequently murdered under mysterious circumstances and speculation remains to this day that his death was arranged to avoid a scandal because of his close connections to the English Crown and Government.

Although the charge of blasphemy was a serious one in the era before freedom of religion became a principle of government under the rule of law, in truth the actions of the Privy Council were directed more at an intolerance for  for homosexuality, which was thought to be rife in the theatrical community.  With respect to Marlow, Kyd and others caught up in the libel scandal, however, this belief was generated as the result of a misunderstanding of the terms used in by Arianists, including Marlow, who was as much a philosopher as a poet and playwright, -- Homoousion, Homoiousianism, Homoeanism and Heteroousianism -- these terms, derived from Greek, were used to describe the different possible natures of Christ in relation to God the Father and the Holy Spirit, but to the uneducated were mistaken for references to sexuality. 

Kyd was eventually released, and despite not having been formally charged or tried for any offense, was abandoned by his former patron.  Efforts to clear his name were fruitless.  Kyd died in 1594, a broken man, at the age of 35.

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