By Kevin C. Murphy, Copyright 2013. All Rights Reserved.
Chapter Six: Legacies of the Scare
Progressives, Civil Liberties, and Labor
VI. The Right to Organize
This experience -- not to mention seeing the NCLB's offices raided soon after publishing The Truth About the I.W.W -- cemented to Baldwin that the right to free speech and the right to organize were fundamentally inseparable. "Whether the industrial struggle will be waged without resort to violence," he wrote in 1923, "depends entirely upon how far the right of agitation of new ideas can be won and held by the militant forces of labor and their allies." That right of agitation, in the 1920's, would be under constant threat. "The effort to suppress workers' organization," wrote The New Republic in 1926, "is one of the most profoundly demoralizing tendencies in the United States of our generation." And while the immediate post-war period is remembered as a more fertile period for labor unrest, the 1920's would in fact see major and often violent coal, textile, and railroad strikes - so much so that, in 1922, Secretary of Labor James Davis feared the nation was "on the verge of industrial collapse." "The days are most trying," First Lady confided to her journal that same year, "and I have not made up my mind that the days of the war had no harder problems to meet than the present time." In all of these uprisings, the ACLU and other progressive civil libertarians would play a hand.2
Within weeks of its January 1920 formation, the ACLU dispatched several organizers and a freelance journalist, John L. Spivak, into the unfriendly terrain of Appalachian coal country to help miners there organize under the auspices of the United Mine Workers. Overworked in a backbreaking job and often paid in scrip, these miners were ripe for unionization, especially after they missed out on the 27-cent wage increase negotiated to end the 1919 coal strike. The UMW was equally eager to unionize them, since non-union mines that continued to produce coal had eroded the union's bargaining position during that coal strike. As such, John L. Lewis sent along his best men and women, including the venerable Mother Jones, to organize the Tug River valley along the border of West Virginia and Kentucky.3
By mid-May, the UMW had succeeded in organizing around 3000 miners in the coal-producing counties. But standing athwart their attempts were the mine operators and their hired army, the Baldwin-Felts Detective Agency. Soon, operators began firing miners who held a union card and forcibly evicting them and their families from company housing. In short, conditions on the ground were ugly. Do not be "under the impression that there is some semblance of legal procedure here," Spivak warned Baldwin in his report. "There is not. You can't hold a meeting here, get pinched and then fight it out in the courts…[Y]ou'll never live to see the courts…The state is on the verge of civil war, due to the suppression of the Constitutional rights of free speech and free assemblage. That's where you come in - or are rather are supposed to come in, for the Union, besides sending me down, has not came in."4
The truth of Spivak's words became clear on May 19th, 1920, when a deadly firefight erupted in the town of Matewan, West Virginia. That morning, Baldwin-Felts detectives - among them Albert and Lee Felts, younger brothers to founding partner Thomas Felts - arrived in Matewan to evict miners from a nearby camp owned by the Red Jacket Coal Company. On the way back to the train station after this deed, the Baldwin-Felts boys were stopped by the chief of police Sid Hatfield, who sided with the miners. (The Felts had tried to buy off Hatfield earlier to the tune of $300, but the sheriff -- who bragged of being a descendant of those Hatfields -- was not for sale.) Sheriff Hatfield told the detectives that their agency had no authority for these actions, and that he held a warrant for Felts' arrest. Albert Felts pulled out his own warrant for Hatfield's arrest, and as words were exchanged, Mayor Cabell Testerman -- who supported Hatfield and the strikers -- stepped in to defuse the situation. Surrounding this increasingly escalating episode were a contingent of armed miners, there to back Hatfield and get the interlopers out of Matewan. Eventually, shots were fired, and within two minutes, ten men lay dead, including Mayor Testerman, two miners and seven Baldwin-Felts operatives, among them Albert and Lee Felts.5
One man who survived the carnage of Matewan was the 27-year-old Sheriff Hatfield, who, already well-liked, now became an instant folk hero. Miners spoke of "Two-Gun Sid," the "Terror of the Tug," the man who had stood up to the mining interests and not only walked out unscathed, but killed two Felts for good measure. While the ACLU tried unsuccessfully to secure assistance for the miners from state or federal authorities, the UMW made a silent film about "Smilin' Sid" -- mainly Hatfield walking around the mining camps and looking like a leader -- which was then shown at recruiting drives. Thousands more miners answered the call, including 90% of the nearby Stone Mountain Coal Company, swelling the number of union miners to 6000 and giving the UMW enough leverage to declare a coal strike in the region on July 1st, 1920. At which point, what had begun in a firefight became a protracted war.6
When UMW officials called for the same 27-cent increase enjoyed by miners on the other side of the state, coal operators in the Tug Valley turned a strike into a lockout, quickly replacing the strikers with immigrant and African-American labor. Even though the strike would effectively stop coal production in the area over the summer and last two full years, the mines were running back at normal efficiency by the end of 1920. In the meantime, 3000 miners, their movements sharply circumscribed by state police, lived in a ramshackle tent city, relying on food from the UMW. Violence flared up routinely between the sides, as in August 1920 when a three-hour firefight resulted in seven more deaths and dozens injured -- prompting Woodrow Wilson, against the protests of the ACLU, to send in federal troops that would remain in the area until February 1921. That July, union official Frank Keeney stated that there had been over one hundred deaths since the strike began.7
In January 1921, once the streets had been cleared of miners and Baldwin-Felts agents spoiling for a fight, the trial of Sid Hatfield for the Matewan massacre deaths began in nearby Williamson, West Virginia. The UMW organized the defense, while Roger Baldwin and the ACLU conducted publicity for the trial -- but neither was particularly needed. Still a folk hero in the region, Hatfield was acquitted by a jury of his (admiring or frightened) peers in March 1921, after a nine week trial. Thomas Felts, still seething after the death of his two brothers, vowed vengeance on the young sheriff. Four months later, Hatfield and his friend Ed Chambers were told to report to a different courthouse in Welch, West Virginia to answer to separate violence-related charges. There, on August 1st, 1921, Hatfield and Chambers, climbing the courthouse stairs with their wives in tow, were gunned down by assassins.8
The murders of Hatfield and Chambers further inflamed a situation that was already spiraling out of control. In May 1921, union forces had surrounded and besieged strikebreakers in the town of Merrimack, who eventually began firing back. After this "Three Days Battle," which resulted in an estimated twenty deaths per side, Ephraim Morgan, the new Governor of West Virginia, declared martial law in Mingo County on the first anniversary of the Matewan massacre. Morgan then began using state police and deputized private agents to break up potential union meetings, halt distribution of the UMW's newspaper, The West Virginia Federationist, and arrest any troublemakers. Two months later, on July 8, 1921, state police raided the union's main office and arrested the UMW officials there for unlawful assemblage. The ACLU promptly protested these arrests and, expecting no favorable reply from Harding, urged the Senate to look into the situation.9
With the assassination of Hatfield, meanwhile, talk began circulating among the miners of a march on nearby Logan County, where the sheriff, Don Chafin, was as anti-union as Hatfield had been pro-miner. (It helped that he was on retainer from the Logan Coal Operators Association.) Fearing a bloodbath, 91-year-old Mother Jones urged the miners to stand down, claiming she had a telegram from President Harding decreeing "that my good offices will be used to forever eliminate the gunmen system from the state of West Virginia." But her gambit was exposed within hours by a telegram to Harding's secretary at the White House, and Mother Jones -- deemed a "sellout" and a "traitor" by the angry miners -- was sidelined. She promptly left West Virginia for Washington to try to stave off federal intervention instead.10
On August 24th, a contingent of over 10,000 miners, wearing red bandannas and, often, uniforms from the World War, began a 65-mile march toward Logan. There, Sheriff Chafin -- promising that "no armed mob will cross the Logan county line" -- had deputized a private army of around 3000 strikebreakers, all of whom were now strategically deployed around Blair Mountain along the path of the march. He also had at his disposal cars, machine guns, landmines, and reconnaissance biplanes to monitor the marchers as they drew near. The board was set for what would become known as the Battle of Blair Mountain, the largest armed labor conflict in American history.11
Hoping to prevent a catastrophe and warning of miners "inflamed and irritated by speeches of radical officers and leaders," Governor Morgan implored President Harding to send 1000 federal troops and aircraft to defuse the situation. Harding and Secretary of War John Weeks instead sent Brigadier General Harry Bandholtz to West Virginia, who promptly met with union leaders Frank Keeney and Fred Mooney and warned them to stop the attack. Meanwhile, the War Department also sent General William "Billy" Mitchell to Kanawaha Field near Charleston, West Virginia in case air operations were needed. At the time, Mitchell was working hard to make the case for a strong national air force, and he saw a potential test case in the Blair Mountain situation. "All this could be left to the air service," Mitchell told the press, "[i]f I can get orders I can move in the necessary forces in three hours." His plan? Mustard gas. "You'd understand we wouldn't try to kill people at first. We'd drop gas all over the place. If they refused to disperse then we'd open up with artillery preparation and everything."12
While Mitchell plotted his dramatic air raid, Keeney and Mooney finally caught up with the main pack of marchers and told them about Bandholtz's threat of federal intervention. Once it was determined that this particular telegram, unlike Mother Jones's earlier missive, was real - one of the miners had fortunately happened to serve under Bandholtz in the Philippine War -- the miners decided to stand down. "Boys, we can't fight Uncle Sam, you know that as well as I do," one union man noted. And, so, on Saturday, August 27th, the miners broke off their march and began to head back.13
Sheriff Chafin was still spoiling for a fight, however, and on that same day, he sent a contingent of deputies to the nearby town of Clothier to arrest a group of union men there. A firefight soon erupted that claimed two lives and, by the following day, rumors of a bloodbath in Clothier had become a casus belli. As marchers turned back around and started heading for Logan again and Chafin's anti-union forces -- now wearing white armbands to differentiate themselves from the red bandannas -- were buttressed by volunteers organized by the American Legion, Governor Morgan frantically wired the White House for aid. On Tuesday, Harding issued a proclamation calling for "all persons engaged in said unlawful and insurrectionary proceedings to disperse and retire peaceably," or federal troops would follow.14
Over the next several days, Harding's proclamation would be air-dropped all over the region surrounding Blair Mountain, and mostly ignored. Instead, union forces, estimated at around 9000 strong, attempted several incursions into Chafin's defenses around the mountain, mostly to no avail for the same reason the World War had turned into a stalemate of bloody trenches only a few years before -- the suppressing fire of defenders' machine guns discouraged forward progress. Meanwhile, Chafin's three biplanes dropped tear gas and pipe bombs on the encroaching miners, although to surprisingly little effect. By Thursday, the Army Air Service was flying over the battles in West Virginia, although, since the bloodthirsty Billy Mitchell had been replaced by the more conservative Major General Charles T. Menoher, the Army restricted their sorties to reconnaissance only. The fighting on the ground continued until Saturday, when 2100 federal troops appeared under the command of Brigadier General Bandholtz to break up the fighting. The precise death toll of the Battle of Blair Mountain was never ascertained, but estimates range between 20 and 50.15
"An army of miners," TNR reported about the incident after the dust had settled, "had learned to believe, from the example of coal operators who employ private gunmen and pay a county $32,700 a year to help it maintain deputy sheriffs, that the best answer to violence is violence. And this they will continue to believe until the coal operators themselves have been reduced to a state of civilization." After the Battle, however, the coal operators got the best of the situation. With the union army disbanded, Governor Morgan quickly convened grand juries and issued indictments against the UMW leadership for treason and conspiracy to riot, among other crimes.16
By the time the Senate Education and Labor Committee, under Chairman William Kenyon, finally began looking into the situation in West Virginia, Don Chafin had disappeared for an extended vacation and the mine wars had begun to taper off. The Committee's final report on the subject was an indecisive document that blamed labor and capital equally for the recent unpleasantness. They were "two determined bodies trying to enforce what they believe are rights, which rights are diametrically opposed to one another, and we have the situation of an irresistible force meeting an immovable body. In such case," the Kenyon Committee concluded, "there can be nothing but trouble." In the months and years to come, even as the ACLU successfully procured acquittals for UMW leaders indicted for treason, operators consolidated their hold over the mines of West Virginia and the strike was, eventually, broken.17
While the West Virginia coals wars were petering out, the troubles for coal elsewhere around the country were just beginning. As Herbert Hoover put it in his memoirs, "the coal industry was filled with grief, woe, and waste." Overexpansion during the war and the rise of oil and electrical power meant, to Hoover, "too many mines and too many men in the industry." The next campaign began eight months after the Battle of Blair Mountain, in April 1922, as the two-year deal to end the 1919 coal strike was set to expire. Operators -- looking to reduce production for the peacetime era -- wanted the UMW to accept a 20 percent wage cut. Instead, the Mine Workers called for a nationwide coal strike in both the bituminous and anthracite fields. (Anthracite, or "hard coal," has a higher carbon percentage than the more abundant bituminous, or "soft coal". It also burns hotter or cleaner.). Over 400,000 bituminous and 150,000 anthracite coal miners in the US and Canada walked off the job.18
The UMW faced an uphill PR battle in any event, but the union, and labor in general, soon lost an enormous amount of public goodwill after the June 1922 Herrin Massacre, which the St. Louis Globe-Democrat deemed "the most brutal and horrifying crime that has ever stained the garment of organized labor."19
The trouble had begun a few months earlier in September, 1921, when a Cornell-trained civil engineer named William Lester, owner of the Southern Illinois Coal Company, purchased a strip mine in the union town of Herrin, Illinois. Opening in November, the mine was yet to turn back a profit by the time the coal strike began in 1922, so Lester - still deeply in debt from the transaction - appealed to local union officials to work out a deal to keep the mine running. It was agreed, possibly on account of money changing hands, that Lester could continue to extract bituminous coal from the mine, so long as he didn't ship it or sell it. But the strike itself had drastically increased the price of coal, and when Lester discovered he could make a quick $250,000 from the newly-extracted coal, he broke his word and started selling.20
William Lester was playing a dangerous game in a town as heavily unionized as Herrin. But when the local union officials complained, he fired all of his union miners and brought in strikebreakers and private guards to keep the mine running. Even the insult of the broken pledge notwithstanding, miners were worried Lester's actions would initiate a race to the bottom that would have all the surrounding mines re-staffing with scabs in short order. When miners asked the head office what the status of these new strikebreaking workers was, John L. Lewis replied via telegram that "[r]epresentatives of our organization are justified in treating this crowd as an outlaw organization and in viewing its members in the same light as any other strikebreaker."21
On June 21st, after reading the Lewis telegram aloud, several hundred miners gathered in Herrin's cemetery marched on the Lester mine. A firefight ensued, with mine guards killing two union miners and mortally wounding a third before they retreated in to the mine with the strikebreakers. After an all-night siege, the mine superintendent and strikebreakers, realizing they were trapped, raised a white flag the next day and agreed to a truce. But, as the defeated mine employees were being marched to the county line, a second promise was broken. "The only way to free the county of strikebreakers is to kill them all off and stop the breed," declared one embittered old-timer. "I've lost my sleep four or five nights watching these scab sons-of-bitches and I'm going to see them taken care of."22
Soon thereafter, the union miners degenerated into a lynch mob. They killed the wounded mine superintendent, C.K. McDowell, first. ("There goes your goddamned superintendent," one miner boasted. "That's what we are going to do to you fellows too.") Then they brought the rest of the prisoners to a barbed wire fence off the beaten path and released them as shooting practice. ("Here's where you run the gauntlet. Now, damn you, let's see how fast you can run between here and Chicago, you damn stumblebums!") As guards and strikebreakers ran like hell, bloodying themselves as they tried to clamber over the barbwire fence, the union men commenced the slaughter. Many were shot to death along the fence, another one was grabbed and lynched. Even making it past the barbed wire was no guarantee of safety. Six of the Lester men were captured and told to crawl on hands and knees to Herrin cemetery as children screamed "Scab!" at them. There, before a crowd of roughly two hundred, they were tied together, beaten, tortured, urinated upon, and eventually had their throats slit. When one man begged for water in this final stage of the massacre, a woman with a baby declared, "I'll see you in Hell before you get any water." She then stepped down hard on his bloody wound.23
Counting the three dead union miners, twenty-three were murdered in the Herrin Massacre. In terms of legal and community repercussions, there were few. The funerals of the slain miners were attended by thousands, while the strikebreakers were interred in a potter's field. Those ultimately tried for the murders were all acquitted by a local jury. A coroner's jury blamed the murders on "acts direct and indirect of officials of the Southern Illinois Coal Company."24
But, in terms of public relations, the Herrin massacre was an absolute disaster. Newspapers across the country called massacre a symphony of "bestial horrors" and an "archdeed of savagery." President Harding decried the "Herrin butchery." "No crime ever committed could be more inhuman or revolting in its nature," thundered a Republican Congressman from West Virginia on the house floor. "I doubt if any German atrocities were perpetrated…that were more horrible, more shocking, more inexcusable than the atrocities of which I just read," argued Democratic Senator Henry Lee Myers of Montana. This was "anarchy, pure and simple…defiance of all constitutional law and authority." The National Coal Association spread lurid thirty-eight page pamphlets recounting the massacre all across the country, while the Chicago Journal of Commerce began a running count on its front page of "Days Since Herrin." The Associated Employers of Indianapolis, with a day of the massacre, urged all of its members to write the Governor of Illinois "urging him to afford the fullest possible protection to life and property in the legitimate mining of coal, notwithstanding the miner's union."25
Even notwithstanding the public opprobrium that followed the Herrin massacre, the UMW faced heavy obstacles in their 1922 strike. For one, since work stoppages tended to increase the price of coal in an industry that was grappling with overproduction anyway, the UMW's strikes did not cause the operators nearly as much grief as they would in normal circumstances. For another, the long-entrenched mine operators enjoyed considerable power in crucial coal-producing states like Pennsylvania - where they held the advantage of being able to deputize a privatized Coal and Iron Police since the end of the Civil War. The operators also had a crucial ally in the president of the United States. Harding originally thought capital's intransigence brought on the strike, but by the summer of 1922, he sent telegrams to state governors endorsing the use of strikebreakers around the country and promising "the assurance of the prompt and full support of the Federal Government whenever and wherever you find your own agencies of law and order inadequate to meet the situation." Despite all these obstacles, after five months out, John L. Lewis and the UMW did manage to secure a one-year contract that maintained 1920 wage levels, as well as promises of constructive legislation that would emerge from a newly-formed United States Coal Commission.26
Although announced by President Harding in mid-August of 1922, the Coal Commission had originally been the idea of the new Chair of the Senate's Education and Labor Committee, William Borah. (As noted earlier, William Kenyon accepted the federal judgeship that had been offered him to break the power of the Senate farm bloc.) When the strike had first been called, Borah announced that "the government must take over in some way the management and control of the coal fields of the United States." But the Idaho Senator had been a critic of the government control of railroads during the war, and, as he admitted later in the decade, he did not where to find "the constitutional power to do effectively what we want to do." Over in the Commerce Department, Herbert Hoover wanted coal operators to come together in voluntary association to agree on a fair price and handle the problems of production. The Committee of '48, meanwhile, urged Borah and the administration to launch a congressional investigation into depredations by the coal industry. In the end, Borah and Harding both settled upon the usual, time-honored path of least resistance to a tough political problem, and established a bipartisan, seven member commission, chaired by conservative mining engineer John Hays Hammond, to assess the problem and recommend legislation.27
True to form, the Coal Commission was, in the words of one historian, a "harmless, vaguely constituted, and ultimately almost forgotten body." Its final report, issued a year later, argued that the government should continue investigating the problem. "[I]f no constructive program is to result, if no statute is to be enacted or no legislation and control to be had," Borah said in disgust, "I myself do not care to have any interest in it." Working with the League for Industrial Democracy, a socialist organization, the ACLU took the opportunity of the Commission to create a Committee of Inquiry on Coal and Civil Liberties, which included Father John Ryan, Kate Claghorn, and Zechariah Chafee. The Committee's final report, The Denial of Civil Liberties in the Coal Fields, was proffered to the government commission, but had little more than a rhetorical impact on its conclusions.28
Since the Commission was at best a stalling action, coal faced the same industry-wide problems when the one-year contract expired in September 1923, and both signs began gearing up for another wave of strikes, violence, and repression. But, after initiating a strike in August, the UMW caught a lucky break when America's new president, Calvin Coolidge -- uneager to grapple with such a political hot potato a year before an election -- effectively threw the coal problem into the lap of Pennsylvania's new governor, Gifford Pinchot. (Pinchot had written Coolidge imploring him to take action. The president instead suggested Pinchot act as his mediator, then promised the nation it would all be worked out before the winter.)29
Coolidge had created a win-win political situation for himself -- either Pinchot managed to solve the seemingly intractable coal crisis, or the blame of failure redounded on the upstart progressive from Pennsylvania. As it happened, Pinchot rose to the occasion and negotiated a deal with operators that included for miners an eight hour day, a ten percent wage increase, and an official recognition of the UMW and the right to bargain collectively. (In return, the UMW abandoned their attempt to automatically deduct union dues from members' wages through a "check-off system.") The successful deal propelled Pinchot back to national recognition overnight. To his proud brother Amos, Pinchot was now "the only person in the country that stands a show of taking the nomination away from Coolidge."30
"Uncle Gifford…did a real statesmanlike thing in the matter of the coal strike, a thing that required good nerve and true vision," Hiram Johnson wrote Harold Ickes after the deal was announced. "[T]he politicians in Washington were laughing in their sleeves, and saying they had handed him a lemon. He did mighty well." After spending a weekend with the governor and his wife, Ickes reported to Johnson that "Gifford was entirely wise to President Coolidge whom he holds in even less esteem than do you and I…He realized fully that he was being handled a brick that was too hot for those who were holding it. The national administration had a patient on his hands which it preferred to see die in someone else's hospital. Apparently the settlement of the strike, in the manner which it was settled, hasn't brought any joy to the national administration."31
But one observer who saw Coolidge's shrewd handoff of the coal situation to Pinchot for what it was was the Sage of Baltimore. "The coal strike was shoved off on Pinchot," Mencken wrote "who will remain a hero until the coal bills come in, i.e. until about the time the Coolidge campaign really gets under weight." William Allen White also wrote Pinchot to applaud his "righteous act and…fine service to your country," but similarly warned the Governor that he "certainly did put the trimmings on your presidential boom if you had any." "I was pleased beyond words with what you did in every detail, but the country wasn't," White explained:
Big newspaper people soft-pedaled it, they didn't like your wage increase and the eight-hour-day. The country is reactionary - against labor, middle-class conscious. The red-baiters have so thoroughly scared the people, with the bogie of Bolshevism, that any public man who takes any public attitude in favor of organized labor, or any other kind of labor as far as that is concerned, does so at his tremendous peril politically. A dozen or fifteen years ago your actions would have made you a heroic figure in American politics. Idealism, altruism, or whatever you want to call it, was on an ascendant wave. Now, the tide is washing out. 32"I thought we had reached the nadir last year," White sighed, but "there is no sane, strong progressive undercurrent out here." Instead, there "is rural rage, and a sort of fascists' hatred and suspicion and a paralyzing poison of super-national patriotism which responds to the touch of the scoundrel in the Ku Klux Klan, and makes it rather difficult to get ideas of constructive progressive change into the hearts of the folks."33
White, as we shall see, had recently been forced to come to terms with the costs of being publicly pro-labor. As for Governor Pinchot, he made a yeoman's effort during his gubernatorial term to level the playing field for the coal miners' union, including halving his state's Coal and Iron Police Force and initiating formal inquiries into continued suppression of civil liberties in the Pennsylvania coal fields. But he and mine laborers were facing a losing battle. Even as John L. Lewis and the UMW, working with Herbert Hoover behind the scenes, agreed to the three-year "Jacksonville agreement" establishing a détente in the coal wars in 1924, the open shop gained headway in the coal industry in Pennsylvania and nationwide, and the union began to bleed membership.34
And when Governor Pinchot was replaced by a Mellon conservative, John S. Fisher, in 1927, the keystone state soon returned to the old ways of doing business with a vengeance. That year, the Pittsburgh Coal Company, the Bethlehem Mines Corporation, and other powerful Pennsylvania mining businesses broke the Jacksonville agreement, substantially reduced wages, broke off contact with the UMW, and brought in as many as 175,000 strikebreakers from afar, all protected by a newly revived and expanded Coal and Iron Police. Initiating another strike in retaliation, John L. Lewis complained in Pennsylvania of "a reign of terror and intimidation inaugurated that excelled for brutality and lawlessness any union-busting endeavor this nation has witnessed in recent years."35
Progressives on the scene agreed. "All day long," remarked Burton Wheeler after a visit to the fields, "I have listened to heartrending stories of women evicted from their homes by the coal companies. I heard pitiful pleas of little children crying for bread. I stood aghast as I heard most amazing stories from men brutally beaten by private policemen. It has been a shocking and nerve-racking experience." Congressman Fiorello La Guardia told reporters he had "never seen such thought-out, deliberate cruelty in my life…Imagine, gentlemen, a private army with its private jails, where the miners are unlawfully detained and viciously assaulted!...I have been preaching Americanism as I understand it, where justice and freedom and law and order prevail, but these miners and their families don't even get a shadow of it."36
The savagery in Pennsylvania was brought home to readers of The Nation by the February 1929 murder of John Bereski, a pro-union miner beaten to death by the Coal and Iron Police. When Bereski died, The Nation reported, "his hands were swollen to twice their size from warding off blows, his nose was fractured, his entire rib structure was broken, and his lungs were punctured in many places." That much-reported murder, along with calls for a Senate investigation by Hiram Johnson, continued pressure by the ACLU, and especially the return of Governor Pinchot in 1931, would begin to ease the labor wars in Pennsylvania. Nonetheless, the UMW had been thrust back on its heels over the course of the decade. By 1925, the amount of soft coal mined by union workers had dropped from 72 percent in 1919 to 40 percent. The union saw its membership fall from 400,000 in 1919 to under 100,000 in 1928.37
In the mines of the West, the IWW saw scarcely less violence or more success in the latter half of the decade. A Colorado strike action in 1927 had already garnered national press in part because of nineteen-year-old Amelia Milka Sablich, a.k.a. "Flaming Milka," a young woman in a red flannel dress who urged the strikers on ("They can't dig coal with bayonets!") and been forcibly arrested for her stand. When, in November of that year, six picketing IWW strikers were shot dead and twenty more injured by Colorado state police, what became known as the Columbine Mine Massacre drew further condemnation from across the country.38
The Colorado action would be one of the last gasps of a dying organization. Already grievously wounded by the repression of the Red Scare and its aftermath, including the 1921 flight of founder Big Bill Haywood to Russia, the Industrial Workers of the World saw much of its membership and many of its leading lights, like William Z. Foster, leave for the newly formed Communist Party. In early 1923, the IWW called for a general strike in Los Angeles, and soon 3000 longshoremen had walked off the job and closed down the port. Law enforcement - led by LA police chief Louis Oaks and his "Wobbly Squad" - responded with mass arrests, first of IWW leadership and later of 400 strikers, who were kept in specially constructed "bull pens" to hold them all.39
At this point, ACLU member Upton Sinclair and three others got themselves arrested by trying to read a crowd of policemen and prisoners the First Amendment and the Declaration of Independence. (The fourth ACLU man, Hugh Hardyman, only got out "This is a most delightful climate!" before being carried off with the others.) The ACLU immediately filed suit for unlawful arrest, and eventually managed to strike a deal that got Sinclair, his three accessories, and all but 28 of 600 IWW members released without charges. The ensuing media brouhaha also resulted in Chief Oaks being fired and the official establishment of a southern California branch of the ACLU. As for the IWW, a 1924 schism further divided the organization, and by 1928, it was functionally non-existent. At the official convention that year, seven unions sent along a total of eight delegates.40
The textile industry also witnessed its share of labor flare-ups in the 1920s. 1924 saw 6000 members of the Associated Silk Workers walk out in Paterson, New Jersey, a textiles town that had seen more than its fair share of strikes and repression over the previous two decades. Soon thereafter, fifty police, nightsticks at the ready, smashed up a meeting of 600 strikers and made eleven arrests, including ACLU head Roger Baldwin. In the ensuing legal fight, the New Jersey Supreme Court reversed the convictions of Baldwin and the others and disputed the relevance of the 1796 unlawful assembly law which police had relied upon.41
Over a year later, in January of 1926, 16,000 textiles workers in nearby Passaic, New Jersey responded to a ten percent wage cut by striking for, among other things, higher wages, a forty-four hour week, and recognition of their union. Led by Albert Weisbord, a recent Harvard Law graduate, the Passaic strike was the first major labor action organized by the Communist Party, paving the way for later efforts in New Bedford, Massachusetts in 1928 and Gastonia, North Carolina in 1929. And here too law enforcement, under the leadership of Chief Richard Zober, reacted with a heavy hand, including mass arrests, beatings, fire hoses, and tear gas. "Nearly all of the energy and resources of those who are aroused by the plight of the Passaic workers," commented The New Republic, "is absorbed in the struggle for civil liberties. And the greater part of the energies of the public officials who have concerned themselves with the strike is diverted away from any attempt to find a solution by the attempt to suppress the challenge."42
After three months of this well-publicized violence -- during which Senator Borah began calling for a Senate investigation -- authorities began reading strikers the Riot Act, an 1864 law prohibiting public assemblies. Among those arrested under the Act were Weisbord and ACLU member Norman Thomas, giving the organization the in it needed to pose a legal challenge to the police abuses. The ACLU eventually secured an injunction against the police to keep them from breaking up union meetings, but while the free speech battle was won, the overall war was lost. The Passaic strike, which eventually moved out of the hands of the Communists and into the realm of the more conservative AFL, ended in failure in 1927.43
After the coal strike, the largest labor action of the decade occurred in the summer and fall of 1922, when 400,000 railroad workers walked off the job to protest a seven cent (12.5%) wage cut decreed by the Railway Labor Board, the organization created as part of the 1920 Esch-Cummins Act to regulate labor disputes in the railroad industry. (This 12.5% cut followed a similar 12.5% cut, which railroad unions had agreed to, the previous year.) Railroad operators quickly began staffing trains with strikebreakers and preparing to break the railway shop unions for good. President Harding - believing that "[i]t is a very great menace to have two great nation-wide strikes on hand at one time" -- urged a settlement highly favorable to industry in July 1922. But management - sensing victory - turned it down by a vote of 265-2. Railroad workers, meanwhile, took revenge by leaving trains in the lurch. Along with coal and steel languishing in the stockyards and thousands of pounds of fruit left to perish in the summer heat, 2500 passengers were left stranded in the Arizona desert, 500 more found themselves stuck in Ogden, Utah, and others were left for four days in the 113-degree wasteland of Needles, California.44
Coupled with the Herrin Massacre the same summer, stories of senior citizens collapsing from the heat and babies being born on abandoned trains left the labor movement in a public relations bind. But, in September 1922, the administration responded with an overreach of its own when Attorney General Harry Daugherty had a sympathetic District Court judge, James H. Wilkerson, declare a sweeping injunction against the railroad shopmen. The injunction accused shopmen of 17,000 crimes and banned them from picketing, loitering or congregating near railroad property, or even communicating "in letters, circulars, telegrams, telephones, or word of mouth, or through interviews in the paper" about the strike.45
The railroad strike, Daugherty explained in his memoirs, was the "supreme test" of the Harding administration. "[T]his country, in my judgment," he wrote, "has never passed through a graver crisis. The principles involved were fundamental to our existence as a free people." To the Attorney General, both the railroad and the coal strikes were clearly concocted by "the Red agents of the Soviet Government." "Here indeed was a conspiracy worthy of Lenin and Zinoviev," he intoned. "The Red borers controlled the Shop Craft Unions." If they succeeded, "our time-tables and freight rates would be made out in Moscow. And the first step would be taken in a revolution to overthrow our government and substitute a Soviet regime. No more subtle and dangerous move was ever made by a group of American citizens since the foundation of the Republic."46
Among those not cognizant of this Red Menace, apparently, were Herbert Hoover, Charles Evans Hughes, and Albert Fall, all of whom openly assailed the injunction in a Cabinet meeting, with Hoover in particular "outraged by its obvious transgression of the most rudimentary rights of man." Samuel Gompers, who declared the injunction was in violation of "every constitutional guarantee of free speech, free press, and free assemblage," contemplated initiating a general strike in protest of the injunction, but instead encouraged a sympathetic congressman to launch an impeachment of Daugherty in the House. (It failed, 204-77.) As counsel for the railway unions, Donald Richberg argued before Judge Wilkerson that decisions by the Railway Labor Board had no binding power over unions, and that, regardless, Daugherty had no right to use his office to promote the open shop. Judge Wilkerson responded by extending the injunction.47
Both progressive and conservative constitutionalists in the Senate, as represented by William Borah and George Wharton Pepper respectively, decried the injunction as an executive overreach. Newspapers and magazines fearful of the new precedent, such as Editor and Publisher, thought "the constitutional guarantees of a free press and free citizenship…were taken away last Saturday when the First Amendment to the Constitution was abridged by federal injunction." Other progressives were also incensed. "On the face of it the order is in flat restraint of freedom of speech," summed up The New Republic.48
In the face of this criticism, Attorney General Daugherty doubled down. "It must be remembered," he declared in a fiery October 1922 speech in Canton, Ohio, "that freedom of speech guaranteed under the Constitution is NOT that freedom of speech which incites mob violence, destruction of life and property, and attacks on Government. That is NOT what our forefathers intended." Minority rights were fine, he contended, but "the minority has no right to promote civil war, impoverish a nation, deprive a people of those things to which they are entitled under the law, or to ignore and seek to withhold from the majority rights as equal as those enjoyed by the majority." As such, the injunction "protects the rights not only of government, but of all the people."49
Ten years later, in 1932, Senator George Norris and House member Fiorello LaGuardia would pass a legislative response to Daugherty's argument with the Norris-LaGuardia Act, barring injunctions and banning yellow-dog contracts, or contracts that mandated employees never join a union. For now, illegal or no, the injunction passed just as the railroad strike was beginning to break up regardless - Donald Richberg thought it more "an injunction to prevent the settlement of a strike." By November, most of the shopmen had returned to work. Richberg and Hoover, meanwhile, began working with labor and executives respectively on a successor to the Railway Labor Board, which culminated in the passage of the Railway Labor Act in 1926. It replaced the Board with a nonbinding Board of Mediation that guaranteed collective bargaining and cooling-off periods before a strike.50
One progressive who became personally entangled with the repression of civil liberties during the railroad strike was Emporia Gazette editor William Allen White. In July of 1922, White's friend - Governor Henry Allen of Kansas - banned strikers from picketing in his state. Believing this an "infamous infraction of the right of free press and free speech," White printed a series of pro-strike posters and put them up in his shop window, reading: "We are for the striking railroad men fifty per cent. We are for a living wage and fair working conditions." (White didn't go 100% for the strikers, he explained, "because I honestly believe that the strikers have a good cause but an unfortunate strike.") For this transgression, White was arrested, immediately drawing responses of aid from the ACLU, William Borah, and Felix Frankfurter.51
In response, White penned an editorial, called "To an Anxious Friend," which later won the Pulitzer Prize. "You tell me that law is above freedom of utterance," it argued:
And I reply that you can have no wise laws nor free entertainment of wise laws unless there is free expression of the wisdom of the people - and, alas, their folly with it. But if there is freedom, folly will die of its own poison, and the wisdom will survive. That is the history of the race. It is proof of man's kinship with God. You say that freedom of utterance is not for time of stress, and I reply with the sad truth that only in time of stress is freedom of utterance in danger. No one questions it in calm days, because it is not needed. And the reverse is true also; only when free utterance is suppressed is it needed, and when it is needed, it is most vital to justice…White was eager to get his case taken to the Supreme Court as a test case, and urged the Attorney General of Kansas to give him "a trial, an immediate trial…Don't dismiss this case. Don't fail to appear. Don't give the effect of laying down. Go to it. Try it with all your heart and let's see where the right and wrong is in this matter. If I am convicted, I'll appeal to the Supreme Court and there will have fairly able counsel." But, ultimately, White never got his test case - the Kansas Attorney General, not looking for any further publicity, dropped the charges.53
Earlier in 1922, William Allen White had told a friend that he saw "no reason why any boy over eighteen should be denied hearing the doctrine of Taft, of Debs, of Harding, of Wilson, of the Nation, of the reactionary New York Times, of the Appeal to Reason, or of the organ of the National Chamber of Commerce. In fact, I think the more he gets from all sides the better boy he will be. I should say that it is an open fight and a clear field and the fellow that convinces the boys and girls is entitled to them."54
These sorts of free-market arguments for civil liberties would make much more headway over the course of the Twenties than would the actual right to organize, which suffered grievously during the decade. The United Mine Workers and Wobblies were not the only unions to bleed members -- In total, union membership would decrease by 20 percent over the course of the decade, from one in every five workers to one in every eight. This was due to several reasons, among them being that the ACLU and progressives were not the only ones framing the labor issue in terms of personal liberty.55
The idea of the "open shop" had been percolating for decades, for as long as employers had fought to prevent the unionization of their workplaces. But after the strike wave of 1919 and early 1920, the open shop movement began to coalesce among employers across the country with renewed fervor. "American business men are preparing to take a definite and united stand on the labor question," reported the Chamber of Commerce that summer, announcing an alliance with the National Association of Manufacturers to establish "the right of an employer to deal with his own men without the interference of outside agents." (The Chamber's affiliates endorsed the ensuing open-shop measures by a vote of 1665 to 4.)56
"[O]nly through the principles of the open shop as distinguished from the dominance and arbitrary control of the union labor leaders," argued Judge Elbert Gary of US Steel, one of the movement's more prominent spokespersons, could the full promise of American industry would be realized In January of 1921, a convention of open-shop advocates in Chicago organized by Judge Gary redubbed the open shop "the American plan," declaring that employers had the responsibility to "protect all employees in the American right to earn a livelihood." Two months later, one journalist argued, the "open shop" had been endorsed by "23 national associations of industry, 540 employers' organizations in 247 cities of 44 states, and 1665 local chambers of commerce" - as well as the new president, who thought it "the right of every free American to labor without any other's leave."57
Public relations nightmares like the Herrin massacre and the abandoned railroad passengers also gave ammunition to those who aspired to make the open shop a civil liberties cause. "Where whole communities openly sympathize with ruthless murder of inoffensive people in the exercise of the right to earn a livelihood," argued General John J. Pershing on July 4th, "it is imperative that public opinion should demand that the strong arm of the law…take action." A Chicago Tribune reporter covering the Herrin trials wrote that "the murder charge will be lost sight of…the cause of the open shop versus union labor will be the central issue." "So long and to the extent that I can speak for the government of the United States," Attorney General Harry Daugherty told the nation in 1922, upon announcing his famous injunction, "I will use the power of the government to prevent the labor unions of the country from destroying the open shop."58
The open shop argument left some progressives, otherwise amenable to civil liberties issues, in a bind. Herbert Hoover thought the open shop an "obvious attempt to destroy union organization," while William Allen White called it a "conspiracy to put American laboring men into serfdom." White also thought that Abraham Lincoln would be against the open-shop movement, because "the unions have done more for labor than any other one force in the last hundred years, excepting perhaps, universal education" and that "the Christian view of Lincoln would try to encourage the unions to give them more and more power and make their membership more and more intelligent."59
But to acknowledge where the open shop idea broke down - on the issue of yellow-dog contracts - would be to concede that the reality of industrial power could and did overwhelm the rhetoric of the public interest. "I have always found," William Borah wrote one constituent, "that there were invariably two sides to a controversy between labor and capital, and in dealing with it I have endeavored not to be an advocate or attorney for either side. I may have failed but I did the best I could." Similarly, William Allen White argued to Secretary of Labor John Davis that "somewhere between forty and sixty per cent of the trouble with the workmen is in the boss." The average of fifty percent was not accidental. To stand successfully against the open shop movement, progressives would have had to abandon their notion of the public interest and fight fully on behalf of a class - labor. That was not a leap that all felt comfortable making.60
Return to the Table of Contents.
2. Murphy, The Meaning of Freedom of Speech, 133, 137-138. "Passaic - A Social Waste," The New Republic, May 5, 1926, 316. Robert H. Zieger, Republicans and Labor: 1919-1929 (Lexington: University of Kentucky Press, 1969), 109.
3. Murphy, The Meaning of Freedom of Speech, 138-139. Lon Savage, Thunder in the Mountains: The West Virginia Mine War, 1920-1921 (Pittsburgh: University of Pennsylvania Press, 1990), 14.
4. Ibid, 139. Robert Shogan, The Battle of Blair Mountain: The Story of America's Largest Labor Uprising (Boulder: Westview Press, 2004), 46-47, 66-67.
5. Robert Michael Smith, From Blackjacks to Briefcases: A History of Commercialized Strikebreaking (Athens: Ohio University Press, 2003), 31-32. Savage, 19-21. Seven years earlier, Albert Felts had been one of the hired guns for management that precipitated the 1914 Ludlow Massacre in Colorado.
6. Savage, 50. Murphy, Meaning of Freedom of Speech, 139. Smith, From Blackjacks to Briefcases, 31-32. "Matewan: Bloody Showdown on the Road to Union Rights," American Postal Worker Magazine, May/June 2010.
7. Murphy, Freedom of Speech, 140-141. Otis K. Rice and Stephen W. Brown, West Virginia: A History (Lexington: University of Kentucky Press, 1993), 231.
8. Smith, From Blackjacks to Briefcases, 33-35. Murphy, Freedom of Speech, 139-140.
9. Ibid. Shogan, 117, 123.
10. Shogan, 170-171, 178.
11. "The Battle of Blair Mountain," American Postal Worker Magazine, May/June 2010. Shogan, 167.
12. Shogan, 175, 179-180.
13. Shogan, 180-182.
14. Shogan, 183-187.
15. Shogan, 188-209.
16. The New Republic, September 7, 1921 (Vol. XXVIII, No. 353), 28. Murphy, Freedom of Speech, 141.
17. Murphy, Freedom of Speech, 141.Shogan, 212.
18. Hoover, 70. Murphy, Freedom of Speech, 144. Russell, 537.
19. Paul M. Angle, Bloody Williamson: A Chapter in American Lawlessness (New York: Alfred A. Knopf, 1952), 3.
20. Angle, 11-12.
21. Angle, 13-14, 19.
22. Angle, 21-23, 4-5.
23. Angle, 6-8.
24. Angle, 25-29.
25. Russell, 546.Angle, 30-32, 37. Carroll Binder, "Herrin - Murder Trial or Holy Cause?" The Nation, October 11, 1922 (Vol. 115, No. 2988), 357-358.
26. Hoover, 70. Murphy, Meaning of Freedom of Speech, 144-147. Ashby, 46. Melvyn Dubosky and Warren Van Tine, John L. Lewis: A Biography (Chicago: University of Illinois, 1986), 68-69. Zieger, 127. Russell, 544-545.
27. Ashby, 41-45.
28. Ashby, 45. Murphy, Meaning of Freedom of Speech, 145.
29. Murphy, Meaning of Freedom of Speech, 147. Miller, Gifford Pinchot, 264.
30. Ibid. Zieger, 155.
31. Zieger, 152-156. Ickes to Johnson, and September 24, 1923. HLI Box 33: Hiram Johnson. Johnson to Ickes, October 2, 1923. HLI Box 33: Hiram Johnson.
32. Mencken, 70. White to Gifford Pinchot, September 11, 1923. White, Selected Letters, 237-238.
34. Murphy, Meaning of Freedom of Speech, 147-148. Dubosky and Van Tine, 81-82. Zieger, 228-232. Hoover called the Jacksonville agreement, which secured a three-year promise of industrial peace for no drop in wages, "one of the most statesmanlike labor settlements in many years," while the UMW's official newspaper said its signing "will go down in history as one of the [UMW's] red letter days." Zieger, 232.
35. Ibid. "Labor Unsheathes the Sword," The New Republic, November 30, 1927, 31-33. The Nation, February 27th, 1929 (Vol. 128, No. 3321), 243. David Montgomery, Fall of the House of Labor: The Workplace, the State, and American Labor Activism 1865-1925 (New York: Cambridge University Press, 1991), 408. Dan Rottenberg, In the Kingdom of Coal: An American Family and the Rock that Changed the World (New York: Routledge, 2003), 142.
36. Zinn, La Guardia in Congress, 147-148.
37. Zinn, La Guardia in Congress, 148. Nation, February 27th, 1929 (Vol. 128, No. 3321), 243.
38. Melvyn Dubosky, We Shall Be All: A History of the International Workers of the World (Chicago: University of Illinois, 2000), 255-266. Murphy, Freedom of Speech, 158-159.
40. Dubosky, 266. Murphy, Freedom of Speech, 158-159.
41. Murphy, Freedom of Speech, 152-153.
42. Murphy, Freedom of Speech, 155-156. "Passaic - A Social Waste," The New Republic, May 5, 1926, 316.
44. Russell, 537, 544-546. Murphy, Freedom of Speech, 159. Zieger, 120. Colin John Davis, Power at Odds: The 1922 National Railroad Shopmen's Strike (Chicago: University of Illinois, 1997), 112-114.
45. Russell, 547. Leuchtenburg, Perils of Prosperity, 99. Davis, 130. Schlesinger, Crisis of the Old Order, 51.
46. Daugherty, 122-127.
47. Zieger, 140-142. Russell, 547-548. Burner, 177. Davis, 134.
48. Ibid. Murphy, Meaning of Freedom of Speech, 161. "The Week," The New Republic, September 20, 1922 (Vol. 32, No. 407), 81.
49. "Address at Canton Ohio," Harry Daugherty, October 21, 1922, 11-14. Murphy, Meaning of Freedom of Speech, 161.
50. Zieger, 139. Burner, 177-178.
51. Murphy, Meaning of Freedom of Speech, 162-163. William Allen White to William Borah, August 3, 1922. White, Selected Letters, 227-228.
52. William Allen White, "To an Anxious Friend," Emporia Gazette, July 27, 1922.
53. White to Richard Hopkins, November 7, 1922. White, Selected Letters, 230.
54. White to W.L. Huggins, March 30, 1922. White, Selected Letters, 222.
55. Brown, 13.
56. Allen M. Wakstein, "The Origins of the Open-Shop Movement, 1919-1920," The Journal of American History, Vol. 51, No. 3 (Dec., 1964), pp. 460-475. John Hennen, The Americanization of West Virginia: Creating a Modern Industrial State (Lexington: University Press of Kentucky, 1996), 109-112.
58. Angle, 30-32. Carroll Binder, "Herrin - Murder Trial or Holy Cause?" The Nation, October 11, 1922 (Vol. 115, No. 2988), 357-358.
59. Zieger, 75. White to C.H. Howard, February 10, 1921.
60. Borah to W.A. Heiss, January 9, 1920. WJB, Box 87: Railway Matters. White to James J. Davis, June 18, 1921. White, Selected Letters, 215, 218.
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