Watchdog Blog

Gilbert Cranberg: A Misbegotten Arrest and Ruling

Posted at 10:35 pm, February 12th, 2009
Gilbert Cranberg Mug

Irving H. Feiner was no household name, but on Feb. 3 the New York Times gave him a 27-inch obituary worthy of a celebrity. Why the big spread?

Feiner was arrested in 1949 for a high-decibel harangue in inner-city Syracuse, N.Y., while he was a student at Syracuse University. His prosecution and conviction for disorderly conduct led to a 1951 U.S. Supreme Court decision. Some people achieve fame by having their names linked to landmark high court rulings; Feiner vs. New York was not such a ruling. In fact, the 6-3 decision upholding Feiner’s conviction was noteworthy for being wrongly decided and for making bad law. It serves mostly as a reminder of how courts in the McCarthy era were too readily swept-up in anti-leftist hysteria.

Feiner was a radical who belonged to a radical organization and who resorted to radical rhetoric. But when he spoke from a soapbox in an inner-city neighborhood one evening in the spring of 1949, he attempted nothing more radical than to encourage his audience of 75 or so to attend a meeting in a downtown hotel to be addressed by a former assistant U.S. attorney general.

Feiner’s soapbox oratory that night included references to the Syracuse mayor and to President Truman as “bums” and to the American Legion as “a Nazi Gestapo.” Justice Hugo Black wrote in his dissent: “That petitioner and the philosophy he espoused were objects of local antagonism appears clearly from the printed record in this case. Even the trial judge in his decision made no attempt to conceal his contempt for petitioner’s views.”

Justice Black should only have known what went on in that court. I was a student at Syracuse at the time, and attended Feiner’s trial. A key witness was the police officer who claimed that he silenced Feiner and arrested him only after an increasingly restive and antagonistic crowd threatened to become violent. Feiner’s attorney, in his questioning of the officer, undermined his testimony about the crowd’s mood and seemed on the verge of asking a decisive question when I happened to glance at the judge; I was startled to see him mouth to the prosecutor the word “object.” The prosecutor did as he was instructed and, surprise!, the objection was sustained.

To this day I regret that I did not stand up in open court and shout out what I had witnessed.

Feiner was a classmate, but we were not friends. On the contrary, we were antagonists in a bitter political dispute over the attempted takeover of the American Veterans Committee by a far-left faction. The fact remains, though, that Feiner was given a raw deal both by the courts and by the university, which kicked him out of school. I learned from his obituary that he was also denied admission to several of the law schools that had earlier accepted him.

Police are supposed to protect speakers from threatening crowds, not to squelch the speakers. The Supreme Court in Feiner vs. New York drew exactly the wrong conclusion about police conduct after Irving Feiner mounted his soapbox. As Justice William O. Douglas wrote in a separate dissent in the Feiner case:

“Public assemblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. When a speaker mounts a platform it is not unusual to find him resorting to exaggeration, to vilification of ideas and men, to the making of false charges. But those extravagances….do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. A speaker may not, of course, incite a riot, any more than he may incite a breach of the peace…But this record shows no such extremes. It shows an unsympathetic audience and the threat of one man to haul the speaker from the stage. It is against that kind of threat that speakers need police protection. If they do not receive it, and instead the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech.”

Feiner was wrongly arrested by overzealous police, wrongly convicted by a biased judge, and his conviction wrongly upheld by higher courts on the basis of a trial record tainted by bias.

March 8 will be 60 years since Irving Feiner’s misbegotten arrest. A posthumous pardon on that date would be a fitting conclusion to the Feiner case.

One Response to “A Misbegotten Arrest and Ruling”

  1. Emily Feiner says:

    Mr Cranberg, I just read this post tonight. I am fascinated to know that you were present at my father’s trial and knew him at the time of his arrest. If you would be so kind as to contact me I would really like to speak with you. I have long wanted to speak with someone who was present at the trial, and I certainly never heard your story about the corrupt judge mouthing to the prosecutor to object, although my Dad made no bones about his contempt for that judge.

    Thank you.
    Emily Feiner

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