The Great Dissent -- Establishing the Rights under the 1st Amendment

Wednesday, December 10th was International Human Rights Day. The day is celebrated each year on the 10th of December, commemorating the day in 1948 on which the Universal Declaration of Human Rights was adopted by the United Nations. (Some time ago the History Book Club read A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights by Mary Ann Glendon, a very good book!)

Appropriate to the day, 14 members of the club met at the Kensington Row Bookshop to discuss The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy.  The book focuses on Supreme Court Justice Holmes changed his views on the First Amendment -- the section of the Bill of Rights that guarantees freedom of speech.

The United States during World War I made laws against espionage (1916) and sedition (1917) that included new limitations on freedom of speech. Cases under these laws eventually reached the Supreme Court and it handed down six decisions that interpreted the first amendment in terms of these laws in 1919. Justice Holmes clearly was rethinking the interpretation of the first amendment during this year, and his dissent at the end of the year is regarded as a landmark, setting forth an interpretation of the amendment that eventually became the majority opinion of a later, more liberal court. The book looks at who Holmes was, and how he came to change his opinion to become a defender of the importance of free debate on important issues. (Holmes in his opinions introduced such famous phrases as "there is no right to yell fire in a crowded theater" and the government may limit speech "only when it creates a clear and present danger".)

Before the meeting a member circulated a "background piece" for those reading the book. Before the meeting we also distributed links to Alan Dershowitz' review of the book in the New York Times Book Review. Here is also a video of Thomas Healy discussing the book.

There is a John Sturges film about Oliver Wendell Holmes from 1950, for which star Louis Calhern received an Academy Award nomination, . It is titled The Magnificent Yankee. The club members were alerted to the film prior to the meeting and one viewed it and reported that it gave a useful impression of Justice Holmes, as represented by people who would have seen him before his retirement from the Supreme Court in 1932.

"I used to say when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the present war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct insofar as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view." Oliver Wendell Holmes Jr. "Natural Law", The Harvard Law Review 

Who Was Oliver Wendell Holmes Jr.?

He was a Boston Brahmin. (Indeed, his father, Oliver Wendell Holmes Sr. coined the term.) One of the members recalled the tag line from John Collins Bossidy:

And this is good old Boston,
The home of the bean and the cod,
Where the Lowells talk only to Cabots,
And the Cabots talk only to God.

Holmes had little real emotional linkage with the vast majority of the common people. This aristocratic distancing of himself from the public was contrasted with Holmes' friend, Supreme Court Justice Louis Brandeis, who also came from a distinguished family, one with considerable wealth that allowed him to grow up in an affluent environment. Brandeis, however, took a labor relations case and in conjunction with the case visited garment workers; he recognized that they shared his Jewish faith, and that apparently allowed him to form a bond of understanding with those poor and imposed upon workers.

We noted that Holmes might have had his character formed in part by his service in the Civil War. He was wounded three times in battle, the first time in the Battle of Balls Bluff (a local site known to many of our members). Once he was shot through the neck, a wound which a doctor at the scene thought would be fatal. Later in the war he suffered from a near-fatal case of dysentery. A member suggested that that early service might have led Holmes to be especially concerned with espionage and sedition in time of war and committed to the idea that the government could regulate such speech.

Holmes was a legal scholar. He studied law at Harvard after the war and in England, and clerked in an law office before going into practice himself. His book, The Common Law, has been continuously in print since 1881. He also prepared an edition of Kent's Commentaries, which served practitioners as a compendium of case law. He taught at Harvard Law School and edited the Harvard Law Review. And of course he was state Supreme Court judge for 30 years before serving 30 years on the U.S. Supreme Court.

Healy's book and the movie The Magnificent Yankee portray Holmes as an older man (he was 78 in 1919), after a long career as a lawyer, a Massachusetts Supreme Court judge, and (from 1902) a U.S. Supreme Court Justice. He read a lot, especially deep and complex works (sometimes in Latin) and  loved to debate with his friends. One member suggested that he came across in these sources as someone you would like personally.

A member mentioned that the number of influential people in Holmes' time was much smaller than today; Holmes seemed to know a large fraction of them. The interlocking networks of influential people sometimes could get things done quickly. Key public intellectuals could meet face to face and discuss questions of law and constitutional interpretation.

The Interpretation of the First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The First Amendment

The First Amendment does not say that any speech is legal. It was never construed to mean that the government could not regulate slander nor libel, nor that it could could not try and convict a spy for passing military secrets to the enemy.

So who decides what is legal speech and what is not? The courts do! And who decides ultimately whether a new law is permissible or whether it infringes on the right to free speech guaranteed by the First Amendment? The Supreme Court does. That principle was established under Chief Justice John Marshall.

One member noted that, contrary to common opinion, John Marshall was not the first Chief Justice of the Supreme Court; John Jay was. (Jay was, among other things, President of the Continental Congress in 1778-79, one of three authors of the Federalist papers, and a negotiator of the Treaty of Paris by which Great Britain recognized American independence. Marshall was in fact the fourth Chief Justice, serving in that role from 1801 to 1835.)

A member noted that he had looked up First Amendment cases to be surprised that there very few in the century before World War 1. However, prosecutions under the Espionage and Sedition laws (which had passed during the war) reached the Supreme Court on appeal, leading to the series of six decisions in 1919 described in the book. Holmes wrote the first decision for the court sustaining a conviction and did not write his "great dissent" until the sixth. In that case he held that the public need for free discussion of ideas was sufficiently important to accept any small risk that the speech identified in the case might have been to the nation.

The group made a conversational detour to comment on the Supreme Court processes. It was noted that fewer lawyers were actually appearing before the court now than in the past; both liberal and conservative justices have indicated their preference for this change as they deal with people who better understand the court and its processes; the current cadre of lawyers appearing before the Supreme Court were described as more expert in constitutional law. Two members present described having attended hearings before the court, one as an attorney and and another as a member of the public; attorneys and the public do so under different rules.

How Did Holmes Come To Change His Mind?

The book describes a series a process in which Holmes discussing a lower court decision declaring the law unconstitutional with its author, Judge Learned Hand. It mentions his conversations with Louis Brandeis (then a Harvard Law School faculty member and friend of Holmes') and other legal scholars. He read articles appearing in law journals that year relating to the constitutionality of the laws. He also read voluminously on legal theory, going deeply into books recommended by Brandeis and Harold Lasky (another Harvard Law professor and friend).

The book does not deal in much detail with the briefs prepared for the six 1st amendment cases decided in 1919, nor with the oral arguments. (A member noted that oral argument was much more extensive in those days; Holmes is portrayed in the book as listening intently to arguments and making notes for a while, but likely to fall asleep late in the process.) Author Healy, of course, was unable to discover what was said in the privacy of the discussions of the cases among the justices.

It was noted that today a Supreme Court Justice is supported by law clerks and can delegate the reading of briefs and identification of key issues to staff. That is why oral arguments are now focused on the issues that the Justices feel are critical to their decisions (and not necessarily those that the advocates want the Justices to focus on). The Justices will have already identified the issues on which they intend to make their determination in the case; they use brief oral arguments to focus on just those issues. In Holmes' day such support was not present; Holmes had young law graduates as secretaries, but their role was different and less substantive than that of modern Supreme Court clerks.

One member mentioned that the book failed to deal in much detail with the changing circumstances that might have influenced Holmes. The war ended in November 1918, so the dangers involved in speech against the war were much reduced. On the other hand, there was a scare about Bolsheviks and Anarchists (compared by members to the Red scare and McCarthyism after World War 2); people were being arrested and even deported for their views.

It was noted that the laws were enforced against people with leftist views, while people with right wing views saying equally incendiary things were not arrested. A member noted that the KKK, which limited members to white, native born, protestant men, included between one-third and one-half of all eligible Americans in the 1920s.

A member, who is a lawyer, noted that the Supreme Court tends to make decisions on narrow grounds rather than seeking to make fundamental changes in the interpretation of the Constitution. Such landmark changes do occur (as in the case discussed in this book, or in Brown vs. the Board of Education or Gideon vs. Wainwright). However, the Court seeks to wait until an issue is mature before making such landmark decisions. Perhaps Holmes' dissent was a recognition that the issue of freedom of speech was nearing maturity and was a first step in the process by which the Court eventually recognized that action in a democracy is best justified by a free and vigorous exchange in "the marketplace of ideas".

A Current Case

Elonis v. United States was argued before the Supreme Court earlier in the week, and had been the subject of an exchange of views on the History Book Club listserve. That discussion continued in person Wednesday evening (and is continuing on the listserve). The case involved statements made in social media, whether they were intended as threats, and the damage done by threats.

One of our members, a lawyer who had represented women who had been repeatedly threatened by estranged husbands, said that these threats themselves harmed her clients (and are too often followed by physical abuse), but that the threatened person seldom gets legal relief. There were several amicus briefs in Elonis v. United States calling for greater protection of people against such threats.

We discussed the issue of intent. It was mentioned that if the person posting the text were a child, mentally ill, or suffering from dementia the courts would be expected to construe that such a person would not have the mental capacity for legal intent; the words themselves do not constitute a crime.

On the other hand, it seemed clear that threatening words could in and of themselves do harm. If the author could and should have understood that such harm would result from his publishing those words, then perhaps intent to harm could and should be inferred.

A member shared his experience with a friend who was arrested, tried and convicted for the crime of conspiring to assassinate the dictator of his Latin American country. The friend was sentenced to be executed, but due to an international letter campaign, the sentence was commuted to emprisonment; when the dictator was overthrown, the friend was released from prison. Years later the friend described how, when a medical student, he had discussed the assassination with fellow students; they were indeed talking about how, when and where to kill a man; however, the friend was not sure that they ever would really have had the courage and strength of conviction to do so. Essentially, the friend himself was not sure that they really had the intent; this was somewhere between a typical student late night discussion from which nothing would follow, and a real assassination plot. Intent is hard to judge!

There was a follow up to the story. It seems that conviction for conspiracy to assassinate a dictator can be a career more, if done at the right moment. The man in question finished medical school after release from prison, rose to be a senior professor in the medical school, and eventually served for years as Minister of Health in his country.

Personal Experiences

One of (the older) members of the club described his experience giving a series of lectures on McCarthyism in the 1950s at the mid-western university where he was teaching. The school administration was very conservative, and the lectures were given at some peril to his academic career. He was surprised that some 90 people showed up for each lecture. Fortunately, there were no actual negative repercussions.

Another said the threats during the McCarthy era were real. One of his teachers, who taught poetry, lost his job and was blacklisted for his political views. It was suggested that the threat was perhaps greatest in Hollywood, where people like Dalton Trumbo and Jules Dessin were blacklisted and had to work under pseudonyms or abroad for many years.

Jules Dessin and Melina Mercuri in
Never on Sunday
also written and directed by Dessin

The member also described boarding in a student coop which was on the California Attorney General's List (of subversive organizations). That seems absurd now. However, a student belonging to the cooperative had formed "the Tibetan Brigade" to go to Tibet and fight against the Chinese invasion of that country. Not only was the Tibetan Brigade put on the list, but so too was the Berkeley student coop rooming and boarding house.

The Second Amendment

A member, noting that while there are many ways that the government is able to regulate speech in spite of the First Amendment, there seems to be such resistance to regulating gun ownership which is protected under the Second Amendment.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. The Second Amendment

That comment led to a lively discussion. One member pointed out that firearms are actually regulated in many ways; the law prohibits a citizen buying a working machine gun nor a functional military rocket launcher; laws limit the right to carry a concealed weapon in many places. (The National Firearms Act of 1934 was the first national law regulating firearms. It was a reaction to the use of weapons during prohibition, especially by organized crime.)

It was suggested that the NRA has been an important force influencing the public and legislatures about the 2nd amendment. The NRA draws income from members and its publications, but also from gun manufacturers and lobbies very effectively. It was noted that the NRA was created as a post war initiative (Civil War that is) to promote marksmanship. It was thought by the founders that more young men would need that skill if there were to be a future war. It was only in the late 20th century that the NRA became so effective in opposing gun control legislation. (The NRA has informed its membership about firearms related legislation since 1934.)

That discussion of gun control has generated further comments on the club listserve since the meeting.

Other Current First Amendment Issues

With time growing short, the question was asked if there were other current 1st amendment issues. Issues related to stalking and spousal abuse, and social media were described as having been raised in a significant number of cases since 1940.

It was noted that many great books are banned from school curricula and libraries around the country. A member explained that few of those cases are litigated -- they are done by local school officials or library officials and do not come to the courts, much less to the Supreme Court.

Final Comment

Members of the club really liked this book. It generated one of the most spirited discussions in recent club history; people had to be almost pushed out of the door of the bookshop so that the owners could close up an go home. More people showed up in person for the discussion than had attended a December meeting for years -- people are busy with other things in the holiday season. The book also generated a lot of discussion on the listserve.

The book took us back to 1919 and the life of one of America/s more interesting and influential people; in many ways it was a biography. It also focused on the way in which a man in public life may come to change a long held idea, and in doing so (as a public intellectual) begin the process of changing public opinion and the law. Appropriate to International Human Rights Day, the book served as an occasion to think and discuss the right to freedom of speech.

There are comments on the book by members posted on the Internet here, here and here.

Comments on Healy’s The Great Dissent

Prior to our meeting to discuss The Great Dissent one of our members, Norm, distributed the following comment:

Where I really part company with The Great Dissent is in the epilogue (in general, the book seemed rather shallow, but that may be because Healy was writing about a rather shallow person).

May I delve into the personal?  (I will anyway.)   In 1952 I was teaching at the University of Dayton, a conservative bastion (run by the Society of Mary) in an even more conservative city (it even had segregated YMCAs).  Senator McCarthy “had slithered onto the scene with his infamous lists and ruthless methods” (p. 246) and they were so flakey that I decided to give a series of special lectures skewering McCarthy himself.  I was surprised that the number in attendance was three times the number of students enrolled in my class (who is monitoring, and for what reason?) but it turned out well and I was not a subject of investigation, as were faculty at nearby Antioch College where the McCarran Committee had destroyed careers a month earlier.

Several years later I was taking some law courses and came across a peculiar set of First Amendment cases, including Dennis et al. and the Ku Klux Clan cases discussed on p. 249.  So I researched further and noticed they fit a whole series of cases during the McCarthy era where proponents of liberal causes were all jailed, but equally vociferous proponents of conservative or racist causes were set free under the “judicial restraint” doctrine.  “What a neat paper this would make” I thought, so I wrote about the Supreme Court being more political than judicial.

The instructor of the course didn’t know what to think, so he send me off to the dean – who happened to be Erwin Griswold, former US solicitor general and a ferocious bear when he felt the urge (even his daughter said so).  Griswold was busy, so told me to leave the paper and return in a week.  The next week I showed up expecting to be told it was publishable, and instead encountered every arrow in his quiver including “I don’t know how you got into this school, but you won’t stay long writing dreck like this!”  I apologized profusely, and when that was of no avail I apologized more, begging forgiveness for my stupidity, and still he ranted; so finally in desperation I pointed out that I had been in Ohio for some years and as everyone knows, erudition does not cross the Alleghenies.   With this his face flushed and he stood up and started shouting, and seemed ready to come over the desk and beat me to a pulp – so I ducked out the door and ran back to my instructor.  “What did I say wrong?” I asked.   He searched for words, and then said softly: “Well . . . for starters . . . Erwin is from Cleveland.”

I mention this only to challenge Healy’s contention that while Frankfurter sided with the Court majority against Dennis and other leaders of the Communist Party, “proving little more than that the defendants had formed an organization to teach the doctrines of Marx and Lenin”, he later found the courage to resuscitate Holmes’ clear and present danger test to release a Ku Klux Klan member who advocated violence against blacks (pp. 248-9).  This belief that Frankfurter and the Court grasped the meaning of the First Amendment is true only so long as one ignores the long string of cases in which the Court used “judicial restraint” in upholding lower courts’ prosecution of liberal speech, however benign, but used the “clear and present danger” criterion to find for conservative speech, however violent.  He ends his story too soon.   The whole story doesn’t support his contention that Frankfurter or the Court opted for equal treatment – not until the Warren Court do we see that.

Holmes himself was never really open to liberal thought.  Sonia Sotomayor he was not.  He wrestled with the First Amendment all the way through the book before being persuaded to support “clear and present danger”.  I take his clear and present doctrine as an aberration, based not on his understanding of the First Amendment but on the persuasion of close friends over a long period of time.

That is the problem with basically conservative thinkers, especially those accustomed to privilege.  Note how one lines up just the “right” people to carry their buckets: people who have worked together, or taught together, or have been friends since year one, and are in high places.  Holmes was a Boston Brahmin, educated at Boston Latin School and Harvard.  His wife was “the eldest child of a respected Cambridge family” who socialized with the daughters of the Boston aristocracy and whose father ran Boston Latin School; so all of his friends tended to be of similar stock, or were on the faculty at Harvard, or residents of the toney Beverly Farms.   He enjoyed the company – or the flattery – of very bright Jews for their intellect, but not blacks; and look at how Jewish friends were extremely servile in presenting him unaccustomed ideas.  But Holmes never visited the working class, nor conversed with them, nor read about their plight, nor was sympathetic with their needs.  For all his erudition, he was a snob.  He was born into class and never really deviated from the views of his class.  Holmes’ belabored twists of logic in cases brought under the Espionage Act of 1917 and the Sedition Act of 1918, as serious as the constraints on First Amendment rights as the McCarthy and McCarran activities 34 years later, brought forth only a mouse of jurisprudence but ended the career of the country’s foremost socialist and a presidential contender in Debs.  Holmes “three generations of imbeciles is enough” condemned Carrie Buck to forced sterilization in Buck v. Bell (1927) although later evidence shows that she was probably of normal intelligence; her argument that sterilization of institutionalized persons violated substantive due process fell to Holmes’ belief that state interest in maintaining a pure gene pool outweighed the interest of individuals in their “body integrity”; in short, that the science of eugenics provided a reasonable basis for law, a belief that the Nazis used to justify the murders of millions of disabled persons.

Brandeis got it right when he told Frankfurter that Holmes failed to “sufficiently consider the need of others to understand or sufficiently regard the difficulties or arguments of others (p. 103).

I thought the Harvard Lampoon’s “Alone at Laski” hilarious, as well as the faux autobiography (“born at age three and completed Oxford in twenty minutes”).  It is what people expect today from Jon Stewart or Saturday Night Live. Parts of the parody are clearly over the top, however, and appear to represent the anti-Semitism of a pampered non-Jewish student body.  But why did Harvard’s board of overseers (or its president, Lowell) take it so seriously?  A rigid conformity was expected of the upper crust; a groupthink that one breached only at his peril.  “I am heartily sick of America” wrote Laski, and well he should have been: although I wonder if he was any happier in the English system of privilege, even at LSE.

It was a time when even bright scholars were vulnerable if they lacked status, and the common man constantly vulnerable.  As a child of the depression I saw many good lives squandered; the hope of World War 2 was that all of that would be over, a much more egalitarian society would emerge.  Healy’s book leads to a conclusion that it did, owing to Holmes’ conversion.   I think that it clearly did not; the Court majority is packed once again with privileged conservatives appointed by privileged conservatives, and they are promoting a class-society as never before; the main difference being that this time it is based more on money than ancestry.

A Post Meeting Addition

The following was added to the discussion by member John following the meeting:

I did not mention last night that I attended several hours of a trial in 1957 that revolved around first amendment issues. San Francisco's City Lights bookstore had published the poem Howl by Allen Ginsberg and was selling copies. The poem contains references to use of illegal drug use and gay sexual practices. The manager of the store, Shig Murao, and the owner of the store and publisher of the poem, Larry Ferlinghetti, were both arrested and charged with distributing obscene literature.

I happened to be in San Francisco and knew Ferlinghetti and Murao, without any specific plans, and dropped in on the trial for a few hours.  http://en.wikipedia.org/wiki/Howl#1957_obscenity_trial

My most vivid memory was of Jake Ehrlick, the defense lawyer. He was very famous (for representing Hollywood stars and as the model for Raymond Burr's Perry Mason in the TV show). Incidentally, he was born in Montgomery County. Ehrlick stood up and walked around the courtroom while the testimony was in progress, assuring that eyes were on him and he was controlling impressions left by the testimony.  http://en.wikipedia.org/wiki/Jake_Ehrlich

The result of the case was that the judge decided that the poem had "redeeming social value" and that the defendants were not guilty. The case was covered in national media, and was the subject of a book by Ehrlick and a movie.

More on The Long Shadow -- Of World War I

In November members of the club met to discuss The Long Shadow: The Legacies of the Great War in the Twentieth Century by David Reynolds. (Here is a summary of what went on.) Norm sent us this follow up to the discussion:

I wasn’t able to articulate my thoughts very well in the last book club meeting, so I send this afterthought trivia if anyone is interested:

It is often said that WW1 interrupted a prolonged period of peace, but that would be erroneous.  There was 50 years of industrial growth undermining social growth; Victorian morality in England, with disdain for the masses and Poor Law regulations that broke up families unable to pay their debts; serfdom in a Prussia only recently incorporated into Germany.  But simultaneously there was striking tactical development of artillery: the ‘creeping barrage’ of shellfire that preceded troops in the Boer war (1899-1902); the Boer’s use of similar artillery to mow down British soldiers in shallow trenches at Spion Kop; roughly 17,000 shells from Japanese 28-cm. howitzers dropped on Port Arthur and the Russian Fleet there in 1904.  The French and Belgians depended on rings of massive fortresses around strategic towns, which – both fortresses and towns – were destroyed in a few days by Krupps’ ‘big bertha’ 42-cm. transportable howitzers.   Volunteers manned the British army, many to relieve lower class families of poverty. Wounded British officers were offered huge comfortable estates to recuperate in, but over 300 British enlistees who suffered PTSD after two or three years of constant engagement were executed to teach the others to “buck up”.

During the industrial surge of the late nineteenth century, they and other European powers had been rivals in the resource-driven colonization of Africa and Asia.  By the turn of the century, having created overlapping spheres of influence, the major European powers turned increasingly to military competition – and then created an entangling web of military alliances fashioned on the Napoleonic “balance of power” concept that they believed would prevent armed conflict.  But it was that web of alliances that escalated a minor incident of Serbian nationalism against the waning Austro-Hungarian Empire into a global conflict.

The senseless slaughter of World War I provoked a mocking, nihilistic protest among European artists.  If the most powerful and highly regarded leaders of Europe’s most advanced and cultured countries could take Europe into its most beastly war ever, they reasoned, then its society, culture, art and sophistication represented only a cover for its underlying violence and trauma.   Ergo, contemporary culture and art were worthy only of ridicule and rejection.  

Many of those artists fled to Zurich, a neutral haven for war refugees, where they published and exhibited bold assaults against war, jingoism, and conventional aesthetic values.  Hugo Ball, former stage director of the Munich Kammerspiele, and his wife Emmy Hemmings, a poet and vocalist, were magnets for the most audacious protesters.   Twenty months into the war, Ball and Hemmings rented a tiny café, which they suggestively named Cabaret Voltaire (in honor of the blasphemy in “Candide”), and opened as an artists' club, exhibition room, pub, and theater.   There they launched an abstractionist attack on the political, social and cultural institutions and leaders they saw as responsible for war.

Performances in the Cabaret Voltaire scorned and mocked conventional society with a balalaika band, bizarre masked dances, incantations of Lao Tse as well as local mystics, abstruse or “chance” art, poetic readings made by randomly assembling individual words cut from a newspaper – all reflecting dissociation with the rationalism they blamed for the war.  Richard Huelsenbeck, newly arrived from Berlin, introduced simultaneously recited “sound poems” (a technique borrowed, oddly enough, from early 20th Century Italian and Russian Futurists).  His “sound poems” were gibberish syllables untranslatable in any language, intended to deride the propagandistic babbling of Europe’s wartime elite as they sent their troops into slaughter.  You can hear Huelsenbeck reciting sound poems at: http://ubu.artmob.ca/sound/aspen/mp3/huelsenbeck.mp3.

Ball decorated Cabaret Voltaire with the works of artists now famous but little known at the time, such as Hans Arp, Paolo Buzzi, Max Oppenheimer, Francesco Cangiullo, Marcel Janco, August Macke, Amedeo Modigliani and Pablo Picasso.  Three months after its opening, the group published the single issue of a periodical that Ball initially said would known as “DADA Dada Dada Dada Dada” but later titled "Cabaret Voltaire" like the café – a collection of artistic and literary contributions from vocal pacifists such as Guillaume Apollinaire, Arp, Ball, Hennings, co-founder Richard Huelsenbeck, Janco, Romanian poet Tristan Tzara, and painters Wassily Kandinsky, Modigliani, Oppenheimer, and Spanish cubists Francis Picabia and Picasso.   However, the original “Dada” label remained to identify the entire pacifist movement.

Within a year the café owner closed Cabaret Voltaire as being too weird and raucous.   Tzara and other Zurich Dadaists re-opened as "Galerie Dada" at No. 19 Bahnhofstraße.   Huelsenbeck returned to Berlin, where pacifist ferment was less anti-art than political and social; i.e., more concerned with issuing corrosive manifestos and biting satire, and forming large public demonstrations.  There Huelsenback delivered a Dada manifesto championing communism, then opened Club Dada, a much larger café-gallery than Cabaret Voltaire –  decorated on its ceiling with a life-size pig-headed puppet in German military uniform entitled Prussian Archangel, the whole effigy wrapped in a poster bearing the words of a well-known German Christmas carol – which got its creators indicted for defaming the German army.   Here too were exhibited photomontages that decried the violence of war, including George Grosz’s photographic image of then German president Friedrich Ebert (a revisionist Social Democrat) with the face disfigured by machine parts to depict mutilated bodies of soldiers – in effect, “a victim of his own mechanized aggressions”.

In Cologne, Dada painter Max Ernst also experimented with photomontage intended to reveal disturbed psyches of war makers as well as war wounded, so to memorialize the destructive and devastating capability of modern combat technology.  His 1920 photomontage Untitled, for example, bonds a photo of human arms with the fuselage and wings of a warplane, while in a corner below three humans demonstrate an arm-hold used to carry wounded soldiers.  His increasingly provocative exhibits aroused the public notoriety he craved, but resulted in Cologne police closing his show and arresting him for “obscenity”.   By 1922 Ernst had moved to France and into surrealism (The Equivocal Woman; Eve, the Only One Left to Us).   His Angel of Hearth and Home (1937) mourned the death of Republican Spain and expressed helplessness against the sweeping fascist tide.   With the Nazi occupation of France, Ernst was arrested by the Gestapo but escaped and eventually fled to New York with the help of the U.S. heiress and art patron Peggy Gugenheim.

Dada’s influence spread to other parts of Germany, and to Holland and Italy. Tzara created a particularly active postwar Dada group in Paris.   The influence of Dada extended to Italy, newly formed Czechoslovakia and Yugoslavia, Spain and Russia.  As early war refugees in New York, French artists Marcel Duchamp and Francis Picabia teamed with photographer Man Ray to become the center of radical anti-art activities in the United States.  (Another of Duchamp’s accomplaces in New York was the poverty stricken and completely outrageous Baroness Elsa von Freytag Loringhoven.)  Much of their activity centered in Alfred Stieglitz's gallery, “291”.   During this time Duchamp began exhibiting "readymades" (found objects) including the now famous Fountain, actually an upturned urinal he signed “R. Mutt” (a pun to which he gave several possible meanings).

Composer Erik Satie was another Dadaist with a wicked sense of humor.   Early into the war he published “Genuine Flabby Preludes (for a dog)", which a music critic trashed for “having no shape”; whereupon Satie wrote “Three Pieces in the Shape of a Pear”.   The latter caught the attention of Jean Cocteau, who persuaded Satie to reset the music to a scenario called Parade.  Léonide Massine choreographed it for Sergei Diaghilev’s Ballets Russes, with costumes and sets designed by Pablo Picasso.   Satie’s music was scored for typewriter, foghorn, rattles, milk bottles, and revolver shots.  A riot at its 1917 premier testified as to its success.

From 1919, Satie was in contact with Tristan Tzara, who was now leading the French Dada movement; and with Francis Picabia, Marcel Duchamp, and Man Ray, among others.  (On his first meeting with Man Ray, the two fabricated the artist's first ironic “readymade” – The Gift – actually a non-gift consisting of a clothes iron with thirteen nails attached to its sole.)   Satie also contributed to Tzara’s Dadaist publication 391.

In collaboration with Picabia, Satie then composed the ballet Relâche for Les Ballets Suédois, and adapted the score to René Clair’s surrealist film Entr’acte (1924, with cameo appearances by Marcel Duchamp, Man Ray, composer Darius Milhaud and Satie himself).  You can see it on YouTube at: www.ubu.com/film/clair_entracte.html.

Meanwhile, Picasso carried his cubist sets from Parade into another ballet for Diaghilev, this time choreographed to an 18th Century fable and scored by Manuel de Falla to purely standard Spanish flamenco, entitled Tricorn  (The Three-Cornered Hat).  Then, Picasso and Diaghilev collaborated one last time for Le Train Bleu  (1924; scored by Darius Milhaud with costumes by Coco Chanel), a satire on post-war British aristocrats who rode a new luxury overnight express to equally luxurious Mediterranean resorts.  (A period restaurant of that name serves to this day 3-star dinners in the station in Paris where British passengers changed trains.)

Dada expired as it began, not with a whimper but with a screaming cacophony.   Its siren song (pun intended) was Ballet Méchanique, composed in 1924 by 23-year-old George Antheil from Trenton, New Jersey, resident at that time above Sylvia Beach's legendary Shakespeare & Co. bookstore on the Rue de l'Odéon, in Paris's Latin Quarter.   Ballet Méchanique was to have accompanied a Dada film of the same name created by the artist Fernand Léger with director Dudley Murphy and photographer Man Ray.*   Léger was as strong-minded as Antheil, having spent two years at the front in Argonne (and another in hospital after a German mustard gas attack at Verdun, where he painted The Card Players whose robot-like, monstrous figures reflect the ambivalence of his experience of war).   So there was no attempted coordination, resulting in a score half again longer than the film; and as neither was willing to alter his creation, they were presented separately.  The film premiered in Vienna in 1924; while the Antheil composition took on a life of its own.  Its premiere in 1926 – scored for 16 player-pianos, 2 regular pianos, 7 electric bells, 4 base drums, 3 xylophones, 3 airplane propellers, a tam-tam and a siren – caused a bare-knuckle riot in the Paris concert hall and nearby streets, a sure sign of its success. **

In its original release, the film's French title was "Charlot présente le ballet mécanique", referring to showman André Charlot who financed this film's French distribution. In France, Charlie Chaplin's Little Tramp character was also known as Charlot; the combination of the producer's name and Chaplin's screen image, represented by a Cubist-style paper puppet, is only the first of many visual puns in the film.

Trivial Post-Script: George Antheil’s patron gave up after a few years, and he became as jaded about anti-war activities as his patron had about him.  He returned to the States and a job writing film scores in Hollywood, and in composing music that bear the influence of Igor Stravinsky.  It was there he met the actress Hedy Lamarr, who found Hollywood boring and Antheil interesting. She had enjoyed an early acting career, but a disastrous marriage to Austrian munitions manufacturer Friedrich Mandl, a control freak who supplied munitions for Mussolini’s war in Ethiopia.  (Her memoire tells of lavish parties attended by Hitler and Mussolini in her home, Schloss Schwarzenau.)   Leaving him for Hollywood, she took as well his concern about torpedoes and the problem of their being sent off course by a target’s radio frequency jamming.  With World War 2 underway, she designed a method for spectrum-hopping but lacked a control method until – voila! – George Antheil dusted off his piano rolls from Ballet Méchanique sixteen years earlier.  With a piano roll in the control center shifting signals at short coded bursts to another aboard the torpedo, the target was helpless.  The frequency range of the signals was, naturally, 88 – the number of keys of a piano, so the number of channels in a piano roll.  Subsequently electromagnetic improvements spread the signal across a larger range.  The Navy was wary about using this technology until the Cuban Missile Crisis; but later it was also the basis for Bluetooth and cell phone communication.

      *    Storyline of the film:  A kaleidoscope of images set to an energetic soundtrack. A young women swings in a garden; a woman's face smiles. The rest is spinning cylinders, pistons, gears and turbines, kitchen objects in concentric circles or rows - pots, pan lids, and funnels, cars passing overhead, a spinning carnival ride.  An Art Deco cartoon figure appears, dancing.  Over and over, a heavy-set woman climbs stairs carrying a large bag on her shoulder, a 20th century Sisyphus.  It is world in motion, dominated by mechanical and repetitive images, with a few moments of solitude in a garden.

      **  An excerpt from Ballet Méchanique the film may be seen on YouTube at:

           https://www.youtube.com/watch?v=b5RVBIm_muc&feature=related

 A partial performance of the Antheil score at the National Gallery of Art is on

            YouTube at:

            http://www.youtube.com/watch?v=Eo0H8ztju78&feature=related 

The two are recreated artificially at:

            http://www.youtube.com/watch?v=9SgsqmQJAq0&feature=related and

            http://www.youtube.com/watch?v=tEBCJjQKoh0&feature=related. 

German artist Walter Trier’s “Map of Europe in 1914.”