Minnis Minute

By John Minnis
Legal News

Michigan Legal Milestones

Having had the privilege of attending several Michigan Legal Milestones presentations by the State Bar of Michigan, I am constantly on the lookout for possible candidates for the award.

I have two cases in mind: Schenck v. United States and Glover v. Johnson. The first is the U.S. Supreme Court case made famous by Associate Justice Oliver Wendell Holmes Jr.’s “fire-in-a-theater” analogy. The latter case paved the way for women prisoners’ rights in Michigan.

In the 1919 case, Charles T. Schenck was general secretary of the Socialist Party in Philadelphia during World War I. He and fellow Socialists had printed a pamphlet denouncing the draft as unconstitutional. As a consequence, Schenck and four others were arrested and charged with “causing and attempting to cause insubordination … in the military and naval forces of the United States, and to obstruct the recruiting and enlistment services of the United States.” Schenck and another party leader were found guilty.

Schenk’s case was argued before the high court in January 1919, and the court’s unanimous decision upholding the verdict was written by Holmes. In his six-paragraph opinion, Holmes wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

However, it was Ernst Freund, condemning the decision in “The New Republic,” who paraphrased Holmes’ words in the manner etched into the public’s memory: “…Justice Holmes would make us believe that the relation of the speech to obstruction is like that of the shout of Fire! in a crowded theatre….” (Emphasis mine.)

Leaving aside Holmes’ faulty reasoning in Schenck v. U.S., which was fortunately overturned by the court in Brandenburg v. Ohio in 1969, scholars have long wondered where the analogy of fire in a theater — crowded or otherwise — came from.

While apologists have tried to link Schenck with a series of decisions by Holmes, beginning with an arson fraud case before Holmes while he served on the Massachusetts Supreme Court, Lucas A. Powe Jr., a U.S. Supreme Court historian who once clerked for Associate Justice William O. Douglas, wrote in “Searching for the False Shout of ‘Fire’” (Constitutional Commentary, Summer 2002) that Occam’s Razor required a simpler explanation.

“In searching for a better and more economical answer,” Powe wrote, “I have found two major incidents in the decade prior to Schenck of an actual false shout of fire causing a real panic. Both received national publicity because both involved lots of deaths….”

One incident was a mistaken call of “Fire!” on Aug. 26, 1911, in the Morgan Opera House in Canonsburg, Penn., southwest of Pittsburgh. In the scramble to escape down a narrow stairway, 26 of the 800 in attendance were killed, half of them children.

However, almost three times that number were killed the following year in the Italian Hall Disaster in Calumet, Mich., a turn-of-the-century mining boomtown in the Upper Peninsula. The incident occurred on Christmas Eve, 1913, when someone falsely yelled fire while miners and their families were exchanging gifts in their second-floor meeting hall. In the crush to escape, again down a narrow stairway, 73 people were killed, including 58 children.

It is unknown who made the false cry of “Fire!”; however the miners, who had been on strike since summer, and their families remained convinced that it was a “company man” who did the deed.

Holmes scholars argue that the justice eschewed newspapers and proudly professed ignorance of current events and would not have known of the fires when writing his opinion. Yet Holmes biographer Liva Baker observed that Holmes “knew down to the final dot over the final ‘i’ what they [newspapers] said about his opinions.” And Francis Biddle, Holmes’ private secretary at the court, noted that the justice liked “odd rarities,” especially when they could be used to make a point.

Another Holmes tidbit is that he loved fires. He was a self-acknowledged fire chaser. Charles Henry Butler, Holmes’ friend and neighbor, said, “Whenever there was a fire in any direction he would be glad to go to it with me even if he had to be routed out of bed. In fact it would not have surprised me had he left the Bench to witness a fire while the Court was in session. He also told me that Mrs. Holmes was equally fond of such spectacles.”

“A man who is so excited by fires,” Powe asserts, “might allow evidence of an intentional false alarm into his consciousness.”

Based on Powe’s research, I would think a Michigan Legal Milestones marker, “False Shout of ‘Fire!,’” might be appropriate at the site of the Italian Hall Disaster in Calumet, which already contains an arch and state historical plaque. The Legal Milestones marker could say something like, “The Italian Hall Disaster is believed by legal scholars to be one of the inspirations for U.S. Supreme Court Associate Justice Oliver Wendell Holmes Jr.’s famous ‘fire in a theatre’ opinion in Schenck v. United States, from whence ‘shouting fire in a crowded theater’ entered the public consciousness.”

The Glover v. Johnson case in important in that it gave female prisoners in Michigan’s penal system a voice, according to Ann Arbor civil rights attorney Deborah Labelle, who worked on the case for 10 years. “The Glover case emboldened women prisoners,” she said. “Women learned a sense of self, a willingness to stand up.”

In 1977, five female prisoners at the Women’s Huron Valley Correctional Facility near Ypsilanti filed a class action lawsuit in the U.S. District Court for the Eastern District of Michigan against the Michigan Department of Corrections. The women complained that while male prisoners received secondary and vocational training, women inmates were relegated to parenting and “home ec” classes.

By the time Labelle got involved with Glover, the female inmates had already won the case with U.S. District Judge John Feikens granting declaratory and injunctive relief to the plaintiffs. All that was left was working out the details.

The Glover case paved the way for Nunn v. Michigan Department of Corrections and Neal v. MDOC, both filed in 1996.

In Nunn, female inmates sought to prevent male guards from conducting “pat downs” at will. Guards would regularly pick out which women they wanted to pat down (grope) and how many times a day they would do it. They also were allowed to supervise women in showers and living areas. The case, settled in Washtenaw County Circuit in 2000, stopped cross-gender supervision and required changes to stop sexual assaults by male staff members.

The Neal case was brought by more than 800 female prisoners who were sexually assaulted, including rape, by male guards. A $100 million settlement was reached in July 2009 before Washtenaw County Circuit Judge Timothy P. Connors.

The “Neal Legal Team” — Labelle, Shannon Dunn, Cary McGehee, Michael Pitt, Peggy Goldberg Pitt, Molly Reno, Ronald Reosti, Ralph Sirlin, Richard Soble and Patricia Streeter — was recognized with the prestigious Wade H. McCree Jr. Award for the Advancement of Social Justice from the Federal Bar Association, Eastern District of Michigan Chapter.

While the Nunn and Neal cases are milestones in their own right, I believe it is Glover v. Johnson that should be the case cited on the marker outside the Women’s Huron Valley Correctional Facility in Pittsfield Township.

As Labelle says, “Without Glover, there would never have been a Neal case.”

The Michigan Legal Milestone marker could say something like, “Glover v. Johnson gave women in Michigan’s prison system a voice.”

Heck, even if these cases don’t make the cut for Michigan Legal Milestones, they do make good stories.

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