FREE SPEECH AND INTOLERANCE

ON THE ILLINOIS PRAIRIE

(A study of two historic cases with important issues for today. These casesillustrate the need for tolerance and the importance of civil liberties. Thesematerials are in the process of development. The author apologizes for theincomplete nature of the material. Suggestions to improve the materials areappreciated.)

Prepared byFrank Kopecky, J.D.Center for Legal StudiesSangamon State UniversitySpri_tgfield, Ii. 62794217-786-6050

FreeSpeechand Intoleranceon the IllinoisPrairie

LESSONPLAN

I. Materials

A. LessonPlanB. ArticleC. Supreme Court hypotheticalD. "Whatif" ExerciseE. DiscussionQuestionsF. Additional Reading

II. Objectives

A. The primaryobjectiveis to helpstudentsunderstandthe importanceof civillibertiesandthe needto protectminorityrights.

B. Learnthe factsof two importantepisodesin our nationshistory.C. Understandthemeaningof theBillof Rightsparticularlythe First

Amendmentrightsto freespeechandreligion,the SecondAmendmentrightto beararmsandthe SixthAmendmentrightto a jurytrial.

D. Interestthe studentin legalhistoryand thehistorythatmightbefoundin the localcourthouse.

E. Becomefamiliarwithlegaltermsandprocedures.F. Comparemodernlegalpracticeand attitudestowardsthe Bill of

Rightswithpastpracticesand attitudes.

III. Format

A. Thesematerialsare designedfor use in the middleschoolor highschool. They probablywouldbe most usefulin a socialstudies,historyor governmentclass.

B. Thearticleshouldbe assignedforreading.Ageneraldiscussionofthearticleshouldbe conducted.Thiscouldbe followedwitheitherthe supreme court or "what if" exercise or both.

C. Additionalreadingoncourtpracticesconceptssuchas abolitionism,freepress,andMormonismshouldbe encouraged.

D. The teacher may want to consider encouraging local court history.Oral historiesof seniorjudgesand attorneysmay be consideredaswell as more traditionalstudiesof famouscasesand attorneysinthe local vicinity.

IV. Evaluation

Free Speech and Intolerance on the Illinois Prairie

This is the story of two towns, Alton and Carthage, Illinois and two religious menwho were murdered for their beliefs. Elijah Lovejoy, an editor of a religious newspaper, waskilled by a mob on November 7, 1837 while trying to prevent the destruction of. JosephSmith, the founder of the Mormon religion, was killed by a mob on June 27, 1844, whilebeing held in jail at Carthage, Illinois, the county seat of Hancock County. The principalMormon community of Nauvoo was also in Hancock. Ironically, Smith was being held injail on charges of destroying a printing press. These two incidents occurred a little less thanseven years and a 150 miles apart.

Illinois was a rough place in the 1830s and 1840s. Much of northern Illinois had notbeen settled and Indians were still common. Chicago was a small trading community. TheMississippi River was the edge of the frontier and St Louis was truly the Gateway city forpoints to the west. River travel was the most convenient means of transportation and thecommunities along the rivers were the primary population centers. Alton, located near StLouis, Nauvoo and Hancock County were growing rapidly. Apparently justice wasadministered in a frontier style also. Men were more willing to take the law into their ownhands as these two incidents demonstrate.

This is also a story of the Bill of Rights. The fight to a jury, the right to bear armsand the First Amendment fights to free speech, press and religion play an important partin these incidents. Apparently persons were more willing to use violence to resolve theirdisputes. Also, perhaps, men were less tolerant and open minded. In both of theseincidents the ugly head of prejudice appears. Perhaps the most important lesson to belearned from these two cases is just how fragile the Bill of Rights is as a safeguard. Theminority is protected by the Bill of Rights only as long as the majority is willing to recognizethe importance of these rights as safeguards. The majority must be tolerant of differentopinions and different views if the Bill of Rights and the rule of law are to prevail.

THE LOVE.IOY MURDER

Background

Elijah Lovejoy arrived in St. Louis for the first time in 1827. He was twenty-five years old and the son of a New England minister. A life in religion was to be hiscalling. He worked in St. Louis as a teacher and as a part-time editor of a newspaper. In1831 he returned to the East and earned a divinity degree from Princeton. In 1833 he wasback in St. Louis as a part-time Presbyterian minister and the editor of a religious paper,the St Louis Observer. ·The die was set for the events which followed.

The Observer, although a religious paper, carried a wide variety of articles. Thearticles had a religious tone. He attacked gambling, drinking and the use of tobacco andmore and more he attacked the institution of slavery. The Observer did not demonstratea high degree of tolerance criticizing other religious groups particularly Roman Catholicsand Baptists. Missouri was a slave state and a significant slave business was beingconducted in St. Louis. Lovejoy became increasingly more convinced that slavery wasmorally wrong and articles on slavery began to appear in his paper with increasingfrequency. There were some threats against the paper, but by and large the paper wassuccessful and Lovejoy while not wealthy was able to support himself. He married and hada child.

By 1836, the paper became more closely identified with the cause of abolition. InApril of 1836 there occurred a gruesome murder by a slave. A mob lynched the murderer.Lovejoy wrote an editorial criticizing mob justice and slavery in general. When the grandjury failed to indict anyone for the lynching another editorial was written. This was toomuch for the citizens of Missouri. A mob assembled and smashed the printing press of theObserver, throwing the pieces in the Mississippi. Lovejoy had been contemplating movinghis paper to the free soil state of Illinois for several months. The destruction of his pressand the increasing threats on his life persuaded him to leave. The future was not to bebrighter on the Illinois side of the river.

Preliminary Events

Lovejoy and his family arrived in Alton, Illinois in July 1836. Alton, a bustling city,was one of the largest in Illinois at the time. Many thought that Alton would surpass St.Louis as a commercial center. Alton citizens, however, as Lovejoy was soon to discoverwere not more open minded on the slavery question. Illinois may have been a free state,but there was a great deal of sympathy for slavery and prejudice against Blacks. Illinoisinitially was settled from the south. Many Illinoisans had migrated down the Ohio and upthe Mississippi from southern origins. At the time there were slaves in Illinois. In fact in1822, a proposition to amend the state constitution to allow slvaery had been defeated onlyby a close vote. Illinois during this period had closer commercial and cultural ties withMissouri and other slave states along the Mississippi than with the Eastern states.

Lovejoy's reputation as an abolitionist preceded him. He arrived in Alton on a

Sunday. He left his printing press and equipment on the dock that evening. During thenight a group of men smashed his press and threw it into the river. This was the secondpress he had lost in this manner and there were more to follow. Undaunted, Lovejoy metwith a group of religious and business leaders who agreed to financially back his newspaper.It was agreed that the paper would be a general religious newspaper and that the abolitionof slavery would not be emphasized. Lovejoy insisted, however, that he would not shy awayfrom articles on slavery if they seemed appropriate. A new press had arrived and for severalmonths the newspaper prospered. Slavery was not a dominant topic in the paper butLovejoy could not Stay away from the topic for too long. He began to plan the formationof an anti-slavery society with his friend Edward Beecher, the founder of Illinois College,and articles on slavery began to appear more frequently.

On July 4, 1837 he published articles critical of celebrating freedom while slaveryexisted and calling for the creation of an Illinois Anti-Slavery Society. 1837 was not a goodeconomic year. There had been a financial crisis and many were unemployed in Alton andelsewhere. His articles attacking American values and slavery encouraged a mob to form.His offices were broken into and for the third time his press was destroyed. Lovejoyhowever, became more determined to exercise his right to publish and speak. He and hisbackers soon ordered a new press to be delivered.

While waiting for his press to arrive, Lovejoy helped organize a local anti-slavery society.A meeting of the society was held in Alton. Since the meeting was open to all citizens theanti-abolitionists attended in greater numbers than the abolitionists keeping the meetingfrom passing resolutions against slavery. Usher Linder, the Attorney General of the state,attended and made several speeches against Lovejoy. The meeting further increasedtensions in the community and increased the view that Lovejoy was a trouble maker.

The new press arrived in September. It was immediately placed in a warehouse forprotection. Mayor Krum of Alton assured Lovejoy that the press would be protected. Agroup of citizens were deputized to protect the press. Nevertheless, later that night a mobassembled, the deputies put up token resistance and Lovejoy's fourth press was destroyed.Lovejoy and his supporters resolved to fight on and ordered yet another press to bedelivered.

The Murder

The new press arrived on November 7, 1837 at 3:00 in the morning. For several daysgroups of armed men had been hanging around the dock looking for the press andthreatening violence and its destruction. Lovejoy and the defenders of the press weredetermined to protect it with their lives if necessary. When the press arrived, it was movedto the warehouse of Winthrop Gilman. Gilman, a local businessman, believed strongly inthe freedom of the press. He and Lovejoy asked Mayor Krum to form a militia to protectthe press. Mayor Krum refused to lead such a militia but authorized its creation. About30 men were assembled to protect the press.

Because the press arrived in the middle of the night, there was no immediateopposition. In fact the town was peaceful for most of the day. By evening a large groupbegan to assemble. The group had been drinking and was armed. Lovejoy and about 10others inside the warehouse were armed also and determined to protect the press. Thereis conflicting evidence as to exactly what happened next, but the mob approached thewarehouse and demanded that the press be turned over to them. Gun shots occurred andone member of the mob was shot and killed. It is not clear who fired the first shot. Thiskilling further enraged the mob. The warehouse where the press was secured was of stonebut it did not have windows on its sides. The mob soon discovered that the building couldbe approached from the sides. A ladder was placed against the building and a torch wascarried to the roof where a fire was started. Lovejoy went outside to put out the fire andwas shot. He returned to the building and died. The remaining defenders soon fled fortheir lives. The mob entered the warehouse, put out the fire and systematically destroyedthe press throwing its parts into the Mississippi.

The Trial

Shortly after the murder of Lovejoy, two criminal trials were held. The city of Altontried Winthrop Gilman and the other men who attempted to protect the press for causinga riot by using excessive force to protect the press. Also, several of the mob members werecharged with what amounted to criminal damage to property. Surprisingly no trial formurder was ever held. The trial of Gilman was heard first. Usher Linder, AttorneyGeneral of the state, assisted in the prosecution. A not guilty verdict was entered by thejury and the case against the mob members which also ended in a not guilty verdict.Interestingly, Linder served as defense counsel.

Reading the record of these trials one is struck by how little the witnesses couldremember or knew what went on during the attack on the warehouse. The city needed atrial to clear the air and at least salvage the appearance of the rule of law. Yet it is evidentthat neither the witnesses nor the jury were driven to convict. While it might seem strangethat the defenders of the press were charged with a crime, the law which has evolved doesnot allow an individual to use deadly force to protect property. Gilman and the otherdefendants successfully argued that they not only were protecting their property but theirlives. Furthermore, they contended that they were acting as a militia and that the use offorce was authorized by law. These arguments plus the conflicting evidence concerningwhich group fired the first shot apparently convinced the jury to return a not guilty verdict.

THE SMITH MURDERS

Background

The murders of Joseph Smith and his brother Hyrum are closely associated with thedevelopment of the Mormon religion in this country. Joseph Smith founded the religion inthe 1820's and was its first Prophet. Mormonism grew rapidly in the 1830's. Most of itsmembers were from northern backgrounds which already set them apart from the typicalsettler of the midwest who at the time came from southern backgrounds. Their religion alsodiffered from traditional Christian religions. They believed in a second coming of Christand adopted a communal life style. Their community and governing structure revolvedaround their religion. Some of their members believed in polygamous marriages-a marriagewith more than one wife. Their different religious beliefs plus their tendency to block vote

often put them at odds with their more traditional Christian neighbors. To make mattersworse in the eyes of their neighbors they were an industrious people and were ofteneconomically successful.

Although they were growing as a religion, they were having a hard time finding apermanent home. There were Mormon settlements in New York and Ohio as well as adeveloping settlement near Independence Missouri which the Mormons planned to developas their religious headquarters.However intolerance of their religious beliefs and theirwillingness to convert Indians to Mormonism lead to increasing strife. In the winter of1838-39 the were driven out of Missouri and sought refuge in Hancock County Illinois. TheIllinois legislature granted them a charter for their new settlement, Nauvoo. This chartergave them considerable independence which added to the resentment which thenon-Mormon population of Hancock County had toward them.

By 1844 the Mormon population of Nauvoo and the surrounding area had grown toover 20,000 persons making it one of the largest communities in Illinois. A large temple wasbeing constructed. The Mormons had become the dominant political force in HancockCounty and had some influence on the state level as well as political leaders in the stateattempted to control their block of votes. Their success led to resentment, and theMormons were soon to discover that IUinoians were no more tolerant toward their religionthan were the Missourians a few years earlier.

Preliminary Events

By 1844, Hancock County was divided into two armed camps. The Mormonscentered at Nauvoo in the northern part of the county and the original settlers located atWarsaw on the Mississippi River in the southwest and in Carthage, the county seat in thesoutheast. Both sides had militia units. Mormon backed candidates had easily won the

recently held county elections. The newspaper in Warsaw constantly wrote articles attackingthe Mormons for their religious belief and accusing them of becoming a law untothemselves. Missouri officials wanted to serve legal papers on several of the Mormonleader, but were prevented from doing so by a decision of the Illinois Supreme Court. The

original settlers saw this decision as another example of the undue political power of theMormons.

The Mormons. were not as unified as the original settlers believed. A group ofindividuals within the Mormon community were forming to challenge the leadership ofJoseph Smith. On June 7 they published the first edition of the Nauvoo Expositor. In thisedition they challenged the political and religious views of Joseph Smith. The city councilof Nauvoo met the next day and after lengthy debate and with the urging of Smith who wasthe mayor voted to have the Expositor declared a nuisance to the good of the communityand destroyed. The Nauvoo militia went to the Expositors office and smashed the printingpress. The original settlers now had further evidence that Smith and the Mormons felt thatthey were above the law. They were determined to prosecute Smith for the destruction ofthe press.

The Murder

In Carthage arrest warrants were issued for Joseph and Hyrum Smith for their rolein the destruction of the press. The militia in Carthage and Warsaw were assembled toserve the warrants. The militia assembled in Nauvoo to keep the warrants from beingserved. A state of war was rapidly developing. The Governor of Illinois, Thomas Ford,arrived on the scene with the state militia. He served as a peacemaker and eventuallypersuaded Smith to turn himself in and face the charges. Smith feared that if he went toCarthage he would be killed by a mob. The Governor assured Smith he would be protectedand Smith and his brother Hyram agreed to surrender themselves to the civil authorities inCarthage.

Joseph and Hyrum Smith arrived in Carthage on June 24, 1844. The magistratepresiding in Carthage at the time did not have the authority to release them on bond. Theywere held in the jail umil a circuit judge arrived who could hear their request for bail.Fearing for the lives, their friends gave them revolvers which they were able to keep in jail.Governor Ford convinced the Hancock County militia units to disband and thinking that thesituation had sufficiently calmed, disbanded much of the state militia. But on June 27th agroup of militia men from Warsaw marched on Carthage to murder Joseph and HyrumSmith. The jail was being protected by a group of militia men from Carthage. It is safe toconclude that the attack and the limited defense was pre-arranged. The Warsaw menattacked the jail in the late afternoon. The small portion of Carthage men actually guardingthe jail fired at them but all their shots missed. The bulk of the troops stationed only a fewhundred yards away managed to arrive at the scene only after the Warsaw men entered thejail and murdered Joseph and Hyrum Smith. At least two of the attackers were woundedby the Smiths in their effort to defend themselves. No one was apprehended by theCarthage militia. In fact, despite the fact that many prominent men in the Warsawcommunity participated in the attack no one was recognized.

The Trial

Two men had been murdered while being held in custody. The governor had

guaranteed their safety and the Mormon community was angered by the events. Somebodyhad to be brought to justice. A grand jury was assembled and an indictment was issuedagainst nine men. Five of these were arrested and stood trial. The other four apparentlyfled and were never heard of again. The five who stood trial were prominent men in theWarsaw community. One was the editor of the paper who had written numerousinflammatory articles against the Mormons.

After considerable legal maneuvering in which the original jury panel was dismissed anda new one assembled the trial began in May 1845. The new jury panel was made up of lessMormons and more of the original settlers making it more likely to return a not guiltyverdict. The trial lasted several days which by the standards of the day was quite lengthy.The prosecution had a difficult time finding any one who could positively identify theaccused. It seems that the attackers had darkened their faces with gunpowder sosuccessfully that no one could recognize them. Additionally the witnesses who did identifythe accused were discredited by skillful cross-examination. The defendants were wellrepresented by counsel. The prosecution was also hampered by the fact that many of theMormon witnesses refused or were reluctant to participate in the trial. By this time theMormon leadership had given up both on justice in Illinois and in developing a settlementin the state. Plans were well underway for the migration to Utah.

At the conclusion of the evidence the jury quickly returned a verdict of not guilty.The trial was over but the violence in Hancock County was not over. Perhaps encouragedby the failure to bring to justice any of the men who killed Joseph and Hyrum Smith, manyof the outlying Mormon communities were attacked. The state militia was called out onceagain, but peace never returned until the majority of the Mormons moved to the land ofUtah. The record of intolerance toward the Mormons is a tragic part of the history ofIllinois and of the nation.

Conclusion

The murders of Lovejoy and Smith and the events surrounding them are two of themost tragic events in our nation's history. In both instances intolerance came to theforefront. Mob rule rather than reason prevailed. The mobs that killed both Lovejoy andSmith were not made up solely of ruffians. Some of the leaders of the communityparticipated in the organization of the mobs. The newspapers of the day encouraged theattacks. Hopefully, we as a nation have moved beyond mob violence.

The importance of the First Amendment rights of speech, religion, and press are welldocumented in these incidents. The Second Amendment right to bear arms does not fareas well. The fact that men relied on their own weapons and felt compelled to organizemilitia certainly played an important role in these incidents. Was it a role we should feelproud of?. Initially, one may conclude that the jury system guaranteed by the SixthAmendment worked less than adequately, but in fairness after reviewing the evidence whichwas presented to the juries in both cases, it is difficult to fault the juries for failing to

convict. In fact the whole governing system failed. Ultimately these cases illustrate whatmay happen if the rule of law is lost.

If there is any consolation to the fact that they were murdered, both Lovejoy andSmith are remembered while their attackers have been lost in the passage of time. Bothmen became martyrs in the cause for which they died. The Mormons moved to Utah,prospered, and are now a recognized and accepted religion in our country. The abolitionistswithin thirty years of Lovejoy's death, saw the end of slavery and the defenders of a freepress often recall the memory of Lovejoy and the Alton Observer.

Discussion Questions for Intolerance on the Illinois Prairie

(1) What are the similarities between the Lovejoy case and the Smith case? What arethe differences?

(2) What Bill of Rights issues are found in these cases? What amendments containthese rights?

(3) What role does the militia play in these cases? Would a modem professional policedepartment have made a difference. 9

(4) What made the people in Alton and Hancock County angry? Was it pure prejudiceor were there economic and other reasons.9

(5) Why is Freedom of the Press important?

(6) If a jury refuses to convict in the face of clear evidence of guilt, is this evidence thatthe jury system is a failure?

(7) How could the government officials have responded to bring about a better result?Can government function if feelings of prejudice and intolerance are too deep?

(8) If these facts occurred in today's world, what would happen? Would modernAmericans be willing to destroy printing presses and murder individuals because oftheir beliefs?

(9) Within a 75 mile radius of your home, have there been any famous trials? Whatlessons can be learned from these trials.9

(10) How can you find information about legal cases that occurred in the past?

IN THE UNITED STATES SUPREME COURT

Case of State v. Elton Loveless

This hypothetical Supreme Court case is based on the press smashing incidentsdiscussed in "Free Press and Intolerance on the Illinois Prairie". There are two opinions.After reading the facts and the opinions decide which opinion you would vote for if youwere a judge on the Supreme Court. How do you think the real Supreme Court woulddecide?

FACTS: Prairie State University is located in an industrial city in the midwest. Times havebeen tough. Unemployment is high and there has been a large increase in the amount spentfor welfare and social services in the community. The community is almost 50% black andthe whites fear that thay will lose their political power. There have been several incidentsof racial hate both on the campus and in the community.

Elton Loveless is the editor and publisher of a white supremist student newspaper,the Expositor. The Expositor has run several articles critical of blacks and other minorities.Threats of violence against the paper have been made. At least two demostrations havebeen held outside the dorm where the Expositor was published. Police intervention wasrequired to disperse the demonstrators.

The state where the university is located has a criminal statute which makes it acrime to publish articles which unduly demean an individual or group because of its race,gender, religion, ethnic origin, or sexual preference. Loveless publishes an article in whichhe depicts blacks as interested in only welfare handouts from government and furtheraccuses the local government of giving into the black demands in order to control theirvotes. In his article he uses racial slurs.

Shortly after this article is published a mob attacks the Expositor office and destroysthe equipment on which the paper was published. The police who arrive several minutesafter the incident can fred no one who can identify anyone in the mob. Loveless, however,is arrested for inciting a riot and for publishing hate material. The inciting a riot charge isdropped, but he is convicted for publishing hate material. He appeals the conviction.

Opinion A.

The First Amendment guarantees every American the right to have their own viewsno matter how offensive they may be. The First Amendment right to speech and to a freepress restricts state as well as the national government from interfering with free speech.Free speech and a free press are essential to a democratic society. Our revolution wasfought to guarantee a free society. All over Eastern Europe democracy and free speech arebeing sought. We must allow interference with free speech only under the most extremecircumstances. No such circumstances can be found in this case.

"What if" Exercise

One of the interesting activities that can be conducted with legal case material is tochange the facts slightly and discuss whether that would change the results. FollowingLovejoy's murder, Winthrop Gilman was charged with encouraging a riot. What if two factswere changed. First, what if it is the 1990's instead of the 1830's and, second, what if therewas no gunfire prior to the shooting of the person who was in the mob attacking the press.

Assuming a group assembled who were armed but who peaceably, but assertively,demanded the surrender of the press. Under this set of facts could Gilman and the otherdefendants be tried for murder if they began the shooting?

What do you think.9

Could the jury decide that protecting the First Amendment justified using deadlyforce. 9

Loveless' Expositor was a vile paper publishing many articles that do not belong incivilized discussions, but the way to deal with such trash is to ignore it or to answer it. Badideas must be stopped with good ideas not by suppression of the right to speak. Lovelesshad the right to publish what he wanted and the government had the duty to protect thepress so that the publishing could go forward. Furthermore, the statute itself is vague.Statutes which limit free speech must be more precise to meet constitutional standards. Thestatute is unconstitutional and the conviction is reversed.

Opinion B.

America as a nation has advanced beyond the rough and tumble days of a frontiersociety. As a multicultured nation we must find ways to build tolerance and understanding.A law that regulates hate speech is a reasonable method of implementing a soundgovernment policy. Free speech is not an absolute value. It has to be a balance againstother interests in society. Furthermore, there was no prior restraint of the press. Lovelesswas not prohibited from publishing. He is only being held accountable for the words hewrote.

When he wrote the words he was fully aware of the tension that existed in thecommunity. He knew that violence was likely to result. The inflammatory language in factresulted in a riot. For years there has been a fighting words exception to free speech.Justice Oliver Wendell Holmes writing many years ago said, "No man has a right to yell firein a crowded theater". What Loveless did was the journalistic equivalent of a fighting wordor yelling fire. The law is constitutional and the conviction should stand.

Additional Reading

Simon, Paul, Iovcj0y _ Martyr to FreedomConcordia Publishing, St. Louis, 1964.

Dillon, Merton, Elijah Loveioy. AbolitionistUniversity of Illinois Press, Urbana, 1961.

Lincoln, William, Alton TrialsArno Press, New York (Reprinted), 1970.

Brodie, Fawn, No man knows mv history. The Life of Joseph SmithAlfred A. Knopf, Inc., New York, 1966.

Oaks, Dallin and Hill, M., Carthage Conspiracy.University of Illinois Press, Urbana, 1975.

McRae, Joseph and McRae, E., The Liberty_ and Carthage JailsUtah Printing Company, Salt Lake City, 1954.