Henry John Nelson

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Henry John Nelson was a radical attorney who represented many prominent figures in the American Anarchist and socialist movements in free speech cases during the early 20th century. Nelson represented Emma Goldman and Voltairine de Cleyre[1] in free-speech cases in Philadelphia in 1908 and 1909. In 1919, Nelson represented Socialist Party pamphleteer Charles Schenck in the landmark free-speech case, Schenck v. United States.[2]

Contents

Works

Sources: Representation of Emma Goldman

Emma Goldman: A Documentary History of the American Years, Volume 2 (1909/2008)

From "Emma Goldman to Ben Reitman," letter, New York, 13 October 1909. In Candace Falk, Barry Pateman, and Jessica Moran (eds.), Emma Goldman: A Documentary History of the American Years, Volume 2: Making Speech Free, 1902-1909. University of Illinois Press (ISBN 0252075439), 459.

I am arranging a Ferrer meeting for Sunday, though my being here will be kept quiet. It will be announced, that I came from Phil. to speak. Could you hustle up the Radical Libary boys to arrange a Ferrer meeting and you do the press work? I think Nelson4 would get them the Labor Lyceum for $30 maybe and it ought not to be difficult, to have men like Earle White & Jackson speak. Such a meeting is more important than Voltairine on anarchism. She could speak a week later. I have also written to James F. Morton, asking if he would go to Phil. to speak.

From Candace Falk, Barry Pateman, and Jessica Moran (eds.), Emma Goldman: A Documentary History of the American Years, Volume 2: Making Speech Free, 1902-1909. University of Illinois Press (ISBN 0252075439), 459n.

Henry Nelson was the lawyer representing EG in the 1909 free speech case in Philadelphia.

From "Chronology: 1909," in Candace Falk, Barry Pateman, and Jessica Moran (eds.), Emma Goldman: A Documentary History of the American Years, Volume 2: Making Speech Free, 1902-1909. University of Illinois Press (ISBN 0252075439), 503.

SEPTEMBER 29 [1909]
EG met with single-taxers, freethinkers, and other radicals at 1502 Arch Street in Philadelphia to discuss her free speech fight. Attorney Henry John Nelson drafted an injunction restraining the mayor, director of public safety, and police from further interference with EG's lectures.

From "Chronology: 1909," in Candace Falk, Barry Pateman, and Jessica Moran (eds.), Emma Goldman: A Documentary History of the American Years, Volume 2: Making Speech Free, 1902-1909. University of Illinois Press (ISBN 0252075439), 504.

OCTOBER 6 [1909]
EG's attorney Henry John Nelson and assistant city solicitor Alcorn appeared before Judges Wilson and Audenried to schedule a rehearsing of her case in Philadelphia. Her citizenship status prevented the judges from making a decision.
OCTOBER 7
EG's case was scheduled for rehearing; when questions about her citizenship status were raised by the judge, the hearing was continued without a formal decision.

Roger A. Bruns, The DAMNDEST RADICAL (2001)

From Roger A. Bruns, The DAMNDEST RADICAL: The Life and World of Ben Reitman, Chicago's Celebrated Social Reformer, Hobo King, and Whorehouse Physician (2001, University of Illinois Press), pp. 101-103

True to their word the anarchists, accompanied by attorney John Henry Nelson [sic], marched to Common Pleas Court No. 3 on September 30 [1909] and filed an injunction to restrain city hall and the police department from interfering with free speech. In the days following, Emma and Ben hosted several small gatherings of radicals to raise money for what they assumed would be a protracted legal struggle. "Emma Goldman will address a public meeting in this town," Ben told a reporter at one of the gatherings, "unless death prevents. You are skeptical? Well, the sun may not rise tomorrow, and in the same parallel Emma Goldman may not speak."
[...]
The anarchists certainly were under no illusions that the courts of Philadelphia were likely to leap to their rescue against the city leadership. In appealing to the legal system, however, the radicals had made an adroit move. A court ruling in their favor would be an eye-popping victory and vindication; a defeat would add fuel to anarchist charges about public harassment, censorship, and denial of constitutional rights.
The court acted as expected. On October 15 it upheld the right of public officers to deny free speech when they suspected "that dangerous and disturbing sentiments, tending to disturb the peace, would be uttered." The court said that all anarchists, believing as they did in the right of individuals to regulate their own conduct according to their own notions of right and wrong, stood for the overthrow of the government, presumably by force. Public pronouncement of such a philosophy would likely inflame the populace and lead to civil unrest, the court claimed. In denying free speech in Philadelphia, the government and its agents had acted in a necessary posture of self-defense.

Sources: Representation of Charles Schenck

Historic U.S. Court Cases: An Encyclopedia (2001)

From John W. Johnson (2001), Historic U.S. Court Cases: An Encyclopedia, Volume II, 2nd edition. Routledge. 834-835.

After a September arraignment at which Schenck pleaded "not guilty," the trial began on December 17, 1917, before Judge J. Whitaker Thompson in the U.S. District Court for the Eastern District of Pennsylvania. The United States contended that Schenck and others had used the post to send materials considered non-mailable under the Espionage Act. The prosecution presented testimony from postal inspectors and a number of young men who had received copies of the circular. In cross-examination by defense attorney Henry John Nelson, several of these young men testified that the pamphlet had not made them feel insubordinate to the United States. Several of them had not even read it. Others indicated they had not received letters addressed to them; this raised the possibility of post office intervention.
Attorney Nelson also raised objections, which led to repeated discussion regarding the introduction of the minute book as evidence. He contended that presentation of this material violated the constitutional protection of his clients' rights against self-incrimination. After some deliberation, Judge Thompson overruled the objection. Later, the court held that the prosecution could not introduce the minute book because it constituted hearsay evidence, inadmissible in federal criminal conspiracy trials.
When Judge Thompson made his charge to the jury, he asked for a directed verdict of not guilty for three defendants, but he pursued the charges against Charles Schenck and Elizabeth Baer for conspiracy and willful use of the mail to commit an offense against the United States. The jury was not to determine the constitutionality of the law but to decide if the leaflets "advocate forcible resistance," which would make them nonmailable. The judge pointed out that committing a conspiracy required an agreement to do something, but conspiracy was not determined by whether the objective was achieved. The jury agreed that advocacy had occurred and convicted Schenck and Baer on December 20. The court sentenced Schenck to six months and Elizabeth Baer to ninety days.
After the court denied a motion for a new trial in March 1918, attorneys for Schenck and Baer requested an assignment of errors to the U.S. Supreme Court. The subsequent brief, filed in December 1918 (just after the armistice), questioned the constitutionality of the Espionage Act in relation to First Amendment protection of freedom of speech and petition. Attorneys Nelson and Henry Gibbons saw the act as an infringement upon necessary political discourse. "How can the citizens find out whether a war is just or unjust unless there is free and full discussion?" According to their analysis, the most critical statement in the Socialist circular contended that a "conscript is little more than a convict," a statement attributed to Missouri congressman Champ Clark in a speech on the floor of the House of Representatives. Such a statement hardly advocated interference with war aims.
Referring to the twelve hundred cases that had arisen under the Espionage Act, Schenck's attorneys contended that the law was out of step with English and American legal developments. In this tradition, a distinction had been drawn between (1) speech that involved sincere and honest communication of opinion and (2) speech that involved incitement of a "forbidden action." In their view, the Espionage Act destroyed this distinction and made honest discussion an indictable offense. Therefore, the statute violated the First Amendment.
Gibbons and Nelson challenged the trial procedures, questioning the conspiracy evidence and the seizure of the papers from the Socialist headquarters. They argued that the acts had been committed before the Supreme Court held the draft law to be constitutional and that the evidence introduced was insufficient to support conviction. Furthermore, they said the government presented no evidence that Schenck and Baer had mailed the leaflets, that the granting of the search warrant had not been based upon probable cause, and that the seizure of private papers violated Fifth Amendment protections against self-incrimination because private written words were introduced as evidence. They concluded that the case involved a political issue in which the law attempted to restrict a small group of citizens "steadfastly standing for what they honestly, conscientiously believe."

References

  1. De Cleyre, "The Philadelphia Farce," Mother Earth III.5 (July 1908)
  2. SCHENCK v. U.S., 249 U.S. 47 (1919): "Messrs. Henry John Nelson and Henry John Gibbons, both of Philadelphia, Pa., for plaintiffs in error."
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