FREE SPEECH AND INTOLERANCE ON THE ILLINOIS PRAIRIE

FREE SPEECH AND INTOLERANCE ON THE ILLINOIS PRAIRIE (A study of two historic cases with important issues for today. These cases illustrate the need for tolerance and the importance of civil liberties. These materials are in the process of development. The author apologizes for the incomplete nature of the material. Suggestions to improve the materials are appreciated.) Prepared by Frank Kopecky, J.D. Center for Legal Studies Sangamon State University Spri_tgfield, Ii. 62794 217-786-6050

Free Speechand Intoleranceon the IllinoisPrairie LESSONPLAN I. Materials A. Lesson Plan B. Article C. D. Supreme Court hypothetical "Whatif" Exercise E. DiscussionQuestions F. Additional Reading II. Objectives A. The primaryobjectiveis to help studentsunderstandthe importance of civillibertiesand the need to protectminorityrights. B. Learnthe factsof two importantepisodesin our nationshistory. C. Understandthe meaningof the Bill of Rightsparticularlythe First Amendmentrightsto free speechand religion,the SecondAmendment rightto bear armsand the SixthAmendmentrightto a jury trial. D. Interes the studentin legalhistoryand the historythatmightbe foundin the localcourthouse. E. Becomefamiliarwith legaltermsand procedures. F. Comparemodernlegal practiceand attitudestowardsthe Bill of Rightswith past practicesand attitudes. III. Format A. Thesematerialsare designedfor use in the middleschoolor high school. They probablywould be most usefulin a socialstudies, historyor governmentclass. B. The articleshouldbe assignedforreading.ageneraldiscussionof the articleshouldbe conducted.thiscouldbe followedwith either the supreme court or "what if" exercise or both. C. Additionalreadingon courtpracticesconcept suchas abolitionism, free press,and Mormonismshouldbe encouraged. D. The teacher may want to consider encouraging local court history. Oral historiesof seniorjudgesand attorneysmay be consideredas well as more traditionalstudiesof famouscasesand attorneysin the 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 men who were murdered for their beliefs. Elijah Lovejoy, an editor of a religious newspaper, was killed by a mob on November 7, 1837 while trying to prevent the destruction of. Joseph Smith, the founder of the Mormon religion, was killed by a mob on June 27, 1844, while being held in jail at Carthage, Illinois, the county seat of Hancock County. The principal Mormon community of Nauvoo was also in Hancock. Ironically, Smith was being held in jail on charges of destroying a printing press. These two incidents occurred a little less than seven years and a 150 miles apart. Illinois was a rough place in the 1830s and 1840s. Much of northern Illinois had not been settled and Indians were still common. Chicago was a small trading community. The Mississippi River was the edge of the frontier and St Louis was truly the Gateway city for points to the west. River travel was the most convenient means of transportation and the communities along the rivers were the primary population centers. Alton, located near St Louis, Nauvoo and Hancock County were growing rapidly. Apparently justice was administered in a frontier style also. Men were more willing to take the law into their own hands as these two incidents demonstrate. This is also a story of the Bill of Rights. The fight to a jury, the right to bear arms and the First Amendment fights to free speech, press and religion play an important part in these incidents. Apparently persons were more willing to use violence to resolve their disputes. Also, perhaps, men were less tolerant and open minded. In both of these incidents the ugly head of prejudice appears. Perhaps the most important lesson to be learned from these two cases is just how fragile the Bill of Rights is as a safeguard. The minority is protected by the Bill of Rights only as long as the majority is willing to recognize the importance of these rights as safeguards. The majority must be tolerant of different opinions 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 twentyfive years old and the son of a New England minister. A life in religion was to be his calling. He worked in St. Louis as a teacher and as a part-time editor of a newspaper. In 1831 he returned to the East and earned a divinity degree from Princeton. In 1833 he was back 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. The articles had a religious tone. He attacked gambling, drinking and the use of tobacco and more and more he attacked the institution of slavery. The Observer did not demonstrate a high degree of tolerance criticizing other religious groups particularly Roman Catholics and Baptists. Missouri was a slave state and a significant slave business was being conducted in St. Louis. Lovejoy became increasingly more convinced that slavery was morally wrong and articles on slavery began to appear in his paper with increasing frequency. There were some threats against the paper, but by and large the paper was successful and Lovejoy while not wealthy was able to support himself. He married and had a child. By 1836, the paper became more closely identified with the cause of abolition. In April 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 grand jury failed to indict anyone for the lynching another editorial was written. This was too much for the citizens of Missouri. A mob assembled and smashed the printing press of the Observer, throwing the pieces in the Mississippi. Lovejoy had been contemplating moving his paper to the free soil state of Illinois for several months. The destruction of his press and the increasing threats on his life persuaded him to leave. The future was not to be brighter 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 discover were 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. Illinois initially was settled from the south. Many Illinoisans had migrated down the Ohio and up the Mississippi from southern origins. At the time there were slaves in Illinois. In fact in 1822, a proposition to amend the state constitution to allow slvaery had been defeated only by a close vote. Illinois during this period had closer commercial and cultural ties with Missouri 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 the night a group of men smashed his press and threw it into the river. This was the second press he had lost in this manner and there were more to follow. Undaunted, Lovejoy met with 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 abolition of slavery would not be emphasized. Lovejoy insisted, however, that he would not shy away from articles on slavery if they seemed appropriate. A new press had arrived and for several months the newspaper prospered. Slavery was not a dominant topic in the paper but Lovejoy could not Stay away from the topic for too long. He began to plan the formation of 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 slavery existed and calling for the creation of an Illinois Anti-Slavery Society. 1837 was not a good economic year. There had been a financial crisis and many were unemployed in Alton and elsewhere. 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. Lovejoy however, became more determined to exercise his right to publish and speak. He and his backers 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 the anti-abolitionists attended in greater numbers than the abolitionists keeping the meeting from passing resolutions against slavery. Usher Linder, the Attorney General of the state, attended and made several speeches against Lovejoy. The meeting further increased tensions 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 for protection. Mayor Krum of Alton assured Lovejoy that the press would be protected. A group of citizens were deputized to protect the press. Nevertheless, later that night a mob assembled, 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 be delivered. The Murder The new press arrived on November 7, 1837 at 3:00 in the morning. For several days groups of armed men had been hanging around the dock looking for the press and threatening violence and its destruction. Lovejoy and the defenders of the press were determined to protect it with their lives if necessary. When the press arrived, it was moved to the warehouse of Winthrop Gilman. Gilman, a local businessman, believed strongly in the freedom of the press. He and Lovejoy asked Mayor Krum to form a militia to protect the press. Mayor Krum refused to lead such a militia but authorized its creation. About 30 men were assembled to protect the press.

Because the press arrived in the middle of the night, there was no immediate opposition. In fact the town was peaceful for most of the day. By evening a large group began to assemble. The group had been drinking and was armed. Lovejoy and about 10 others inside the warehouse were armed also and determined to protect the press. There is conflicting evidence as to exactly what happened next, but the mob approached the warehouse and demanded that the press be turned over to them. Gun shots occurred and one member of the mob was shot and killed. It is not clear who fired the first shot. This killing further enraged the mob. The warehouse where the press was secured was of stone but it did not have windows on its sides. The mob soon discovered that the building could be approached from the sides. A ladder was placed against the building and a torch was carried to the roof where a fire was started. Lovejoy went outside to put out the fire and was shot. He returned to the building and died. The remaining defenders soon fled for their lives. The mob entered the warehouse, put out the fire and systematically destroyed the press throwing its parts into the Mississippi. The Trial Shortly after the murder of Lovejoy, two criminal trials were held. The city of Alton tried Winthrop Gilman and the other men who attempted to protect the press for causing a riot by using excessive force to protect the press. Also, several of the mob members were charged with what amounted to criminal damage to property. Surprisingly no trial for murder was ever held. The trial of Gilman was heard first. Usher Linder, Attorney General of the state, assisted in the prosecution. A not guilty verdict was entered by the jury 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 could remember or knew what went on during the attack on the warehouse. The city needed a trial to clear the air and at least salvage the appearance of the rule of law. Yet it is evident that neither the witnesses nor the jury were driven to convict. While it might seem strange that the defenders of the press were charged with a crime, the law which has evolved does not allow an individual to use deadly force to protect property. Gilman and the other defendants successfully argued that they not only were protecting their property but their lives. Furthermore, they contended that they were acting as a militia and that the use of force was authorized by law. These arguments plus the conflicting evidence concerning which 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 the development of the Mormon religion in this country. Joseph Smith founded the religion in the 1820's and was its first Prophet. Mormonism grew rapidly in the 1830's. Most of its members were from northern backgrounds which already set them apart from the typical settler of the midwest who at the time came from southern backgrounds. Their religion also differed from traditional Christian religions. They believed in a second coming of Christ and adopted a communal life style. Their community and governing structure revolved around their religion. Some of their members believed in polygamous marriages-a marriage with 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 matters worse in the eyes of their neighbors they were an industrious people and were often economically successful. Although they were growing as a religion, they were having a hard time finding a permanent home. There were Mormon settlements in New York and Ohio as well as a developing settlement near Independence Missouri which the Mormons planned to develop as their religious headquarters.however intolerance of their religious beliefs and their willingness to convert Indians to Mormonism lead to increasing strife. In the winter of 1838-39 the were driven out of Missouri and sought refuge in Hancock County Illinois. The Illinois legislature granted them a charter for their new settlement, Nauvoo. This charter gave them considerable independence which added to the resentment which the non-mormon population of Hancock County had toward them. By 1844 the Mormon population of Nauvoo and the surrounding area had grown to over 20,000 persons making it one of the largest communities in Illinois. A large temple was being constructed. The Mormons had become the dominant political force in Hancock County and had some influence on the state level as well as political leaders in the state attempted to control their block of votes. Their success led to resentment, and the Mormons were soon to discover that IUinoians were no more tolerant toward their religion than were the Missourians a few years earlier. Preliminary Events By 1844, Hancock County was divided into two armed camps. The Mormons centered at Nauvoo in the northern part of the county and the original settlers located at Warsaw on the Mississippi River in the southwest and in Carthage, the county seat in the southeast. Both sides had militia units. Mormon backed candidates had easily won the recently held county elections. The newspaper in Warsaw constantly wrote articles attacking the Mormons for their religious belief and accusing them of becoming a law unto themselves. Missouri officials wanted to serve legal papers on several of the Mormon leader, 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 the Mormons. The Mormons. were not as unified as the original settlers believed. A group of individuals within the Mormon community were forming to challenge the leadership of Joseph Smith. On June 7 they published the first edition of the Nauvoo Expositor. In this edition they challenged the political and religious views of Joseph Smith. The city council of Nauvoo met the next day and after lengthy debate and with the urging of Smith who was the mayor voted to have the Expositor declared a nuisance to the good of the community and destroyed. The Nauvoo militia went to the Expositors office and smashed the printing press. The original settlers now had further evidence that Smith and the Mormons felt that they were above the law. They were determined to prosecute Smith for the destruction of the press. The Murder In Carthage arrest warrants were issued for Joseph and Hyrum Smith for their role in the destruction of the press. The militia in Carthage and Warsaw were assembled to serve the warrants. The militia assembled in Nauvoo to keep the warrants from being served. 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 eventually persuaded Smith to turn himself in and face the charges. Smith feared that if he went to Carthage he would be killed by a mob. The Governor assured Smith he would be protected and Smith and his brother Hyram agreed to surrender themselves to the civil authorities in Carthage. Joseph and Hyrum Smith arrived in Carthage on June 24, 1844. The magistrate presiding in Carthage at the time did not have the authority to release them on bond. They were 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 the situation had sufficiently calmed, disbanded much of the state militia. But on June 27th a group of militia men from Warsaw marched on Carthage to murder Joseph and Hyrum Smith. The jail was being protected by a group of militia men from Carthage. It is safe to conclude that the attack and the limited defense was pre-arranged. The Warsaw men attacked the jail in the late afternoon. The small portion of Carthage men actually guarding the jail fired at them but all their shots missed. The bulk of the troops stationed only a few hundred yards away managed to arrive at the scene only after the Warsaw men entered the jail and murdered Joseph and Hyrum Smith. At least two of the attackers were wounded by the Smiths in their effort to defend themselves. No one was apprehended by the Carthage militia. In fact, despite the fact that many prominent men in the Warsaw community 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. Somebody had to be brought to justice. A grand jury was assembled and an indictment was issued against nine men. Five of these were arrested and stood trial. The other four apparently fled and were never heard of again. The five who stood trial were prominent men in the Warsaw community. One was the editor of the paper who had written numerous inflammatory articles against the Mormons. After considerable legal maneuvering in which the original jury panel was dismissed and a new one assembled the trial began in May 1845. The new jury panel was made up of less Mormons and more of the original settlers making it more likely to return a not guilty verdict. 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 the accused. It seems that the attackers had darkened their faces with gunpowder so successfully that no one could recognize them. Additionally the witnesses who did identify the accused were discredited by skillful cross-examination. The defendants were well represented by counsel. The prosecution was also hampered by the fact that many of the Mormon witnesses refused or were reluctant to participate in the trial. By this time the Mormon leadership had given up both on justice in Illinois and in developing a settlement in 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 encouraged by the failure to bring to justice any of the men who killed Joseph and Hyrum Smith, many of the outlying Mormon communities were attacked. The state militia was called out once again, but peace never returned until the majority of the Mormons moved to the land of Utah. The record of intolerance toward the Mormons is a tragic part of the history of Illinois and of the nation. Conclusion The murders of Lovejoy and Smith and the events surrounding them are two of the most tragic events in our nation's history. In both instances intolerance came to the forefront. Mob rule rather than reason prevailed. The mobs that killed both Lovejoy and Smith were not made up solely of ruffians. Some of the leaders of the community participated in the organization of the mobs. The newspapers of the day encouraged the attacks. Hopefully, we as a nation have moved beyond mob violence. The importance of the First Amendment rights of speech, religion, and press are well documented in these incidents. The Second Amendment right to bear arms does not fare as well. The fact that men relied on their own weapons and felt compelled to organize militia certainly played an important role in these incidents. Was it a role we should feel proud of?. Initially, one may conclude that the jury system guaranteed by the Sixth Amendment worked less than adequately, but in fairness after reviewing the evidence which was 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 what may happen if the rule of law is lost. If there is any consolation to the fact that they were murdered, both Lovejoy and Smith are remembered while their attackers have been lost in the passage of time. Both men 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 abolitionists within thirty years of Lovejoy's death, saw the end of slavery and the defenders of a free press 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 are the differences? (2) What Bill of Rights issues are found in these cases? What amendments contain these rights? (3) What role does the militia play in these cases? Would a modem professional police department have made a difference. 9 (4) What made the people in Alton and Hancock County angry? Was it pure prejudice or 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 that the 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 modern Americans be willing to destroy printing presses and murder individuals because of their beliefs? (9) Within a 75 mile radius of your home, have there been any famous trials? What lessons 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 incidents discussed 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 you were a judge on the Supreme Court. How do you think the real Supreme Court would decide? FACTS: Prairie State University is located in an industrial city in the midwest. Times have been tough. Unemployment is high and there has been a large increase in the amount spent for welfare and social services in the community. The community is almost 50% black and the whites fear that thay will lose their political power. There have been several incidents of 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 have been held outside the dorm where the Expositor was published. Police intervention was required to disperse the demonstrators. The state where the university is located has a criminal statute which makes it a crime 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 which he depicts blacks as interested in only welfare handouts from government and further accuses the local government of giving into the black demands in order to control their votes. In his article he uses racial slurs. Shortly after this article is published a mob attacks the Expositor office and destroys the equipment on which the paper was published. The police who arrive several minutes after 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 is dropped, 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 views no matter how offensive they may be. The First Amendment right to speech and to a free press 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 was fought to guarantee a free society. All over Eastern Europe democracy and free speech are being sought. We must allow interference with free speech only under the most extreme circumstances. 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 to change the facts slightly and discuss whether that would change the results. Following Lovejoy's murder, Winthrop Gilman was charged with encouraging a riot. What if two facts were changed. First, what if it is the 1990's instead of the 1830's and, second, what if there was 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 other defendants 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 deadly force. 9

Loveless' Expositor was a vile paper publishing many articles that do not belong in civilized discussions, but the way to deal with such trash is to ignore it or to answer it. Bad ideas must be stopped with good ideas not by suppression of the right to speak. Loveless had the right to publish what he wanted and the government had the duty to protect the press 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. The statute is unconstitutional and the conviction is reversed. Opinion B. America as a nation has advanced beyond the rough and tumble days of a frontier society. 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 sound government policy. Free speech is not an absolute value. It has to be a balance against other interests in society. Furthermore, there was no prior restraint of the press. Loveless was not prohibited from publishing. He is only being held accountable for the words he wrote. When he wrote the words he was fully aware of the tension that existed in the community. He knew that violence was likely to result. The inflammatory language in fact resulted 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 fire in a crowded theater". What Loveless did was the journalistic equivalent of a fighting word or yelling fire. The law is constitutional and the conviction should stand.

Additional Reading Simon, Paul, Iovcj0y _ Martyr to Freedom Concordia Publishing, St. Louis, 1964. Dillon, Merton, Elijah Love ioy. Abolitionist University of Illinois Press, Urbana, 1961. Lincoln, William, Alton Trials Arno Press, New York (Reprinted), 1970. Brodie, Fawn, No man knows mv history. The Life of Joseph Smith Alfred 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 Jails Utah Printing Company, Salt Lake City, 1954.