Insecure Equality: Louis Marshall, Henry Ford, and the Problem of Defamatory Antisemitism, 1920–1929

During the 1920s, Henry Ford gained as much fame for his antisemitic views as for his cars. His newspaper, the Dearborn Independent, published dozens of articles between 1920 and 1925 naming prominent Jewish Americans as conspirators in a plot to overthrow governments all over the world. Though hardly the first of their kind, the accusations in the Dearborn Independent represented the broadest, most sustained published attack on individual Jews and Jews as a group in the nation’s history. The articles created clear grounds for defamation and libel actions against Ford and the newspaper, and several were filed. In 1927 one lawsuit, Sapiro v. Ford, made it into court, generating international headlines, only to end in mistrial. Ford then disposed of the distasteful affair by signing a statement in which he apologized for the wrongs he had “unintentionally” done to Jews.[1]

Ford’s campaign against the Jews, as historians have recognized, reflected the renewed racial tribalism that characterized post–World War I American society. A rising tide of private social discrimination spilled into the public realm after the armistice, affecting the racial, religious, and ethnic dimensions of Jewish identity. As much as American Jews believed that they had fully embraced American civic ideals and saw themselves as distinct from nonwhite minorities, the dominant culture regarded them as “the white other,” neither clearly marked by color as a subordinate class nor fully welcomed as citizens. The antisemitic articles in the Independent, coupled with Ford’s public avowal of his intent—to prove the influence of the “International Jew” on American government, politics, and finance—gave dangerous credibility to racist thinking and amplified the prejudices that threatened the civic equality of minorities.[2]

The Independent campaign, which intensified the postwar climate of hate and intolerance, both appalled Jews and placed them in an awkward position. Though deeply involved in fighting for civil rights for nonwhite racial minorities, most leading Jewish lawyers and activists were unwilling to bring the fight against antisemitic defamation and discrimination to the courts.[3] Defying that careful, long-standing strategy, a prominent California lawyer, Aaron Sapiro, brought his libel case against Ford without the sanction or encouragement of Jewish leaders or organizations. The lawsuit brought Ford’s antisemitic diatribe into the public forum of the federal courts and put the substance of his allegations on national display. The trial accentuated the divergent views of those interested in combating antisemitism on how best to contain and discourage group defamation. As the trial unfolded, events moved beyond the control of the parties to the suit. Circumventing the legal process, Ford secretly commissioned an interested observer, the constitutional lawyer and Jewish activist Louis Marshall, to write his apology. In doing so, Marshall ended the public controversy and foreclosed further legal action in the case. Ironically, contemporary observers greeted Ford’s statement as a historic act of repentance, and historians have viewed it uncritically ever since.[4]

While both popular and scholarly biographers of Ford have recognized the centrality of the Sapiro libel case to Ford’s public career, the relationship of the controversy to the histories of modern hate speech, American antisemitism, and Jewish civil rights activism remains less well understood. The lawsuit, historians of antisemitism agree, embarrassed Ford and ended his political ambitions. His apology, which temporarily restored his iconic status, has since obscured the damage the Independent inflicted on American Jews. In recent historical work on antisemitism, for example, Ford is described merely as representing “an expanded, 1920s version of pseudo-agrarianism,” rather than as mounting an unprecedented and for a time legally unstoppable antisemitic campaign.[5] Ford was able to stage his broad attack because he deviously used corporate resources to hide from the legal process and because the American legal system gave wide latitude to hateful publications. Biographers occupied with trying to explain Ford’s views have not considered how Ford’s publication shaped the contemporary politics and legal strategies of the national Jewish defense organizations, including the American Jewish Committee (AJC), the country’s oldest and most influential Jewish activist organization. Two books entitled Henry Ford and the Jews, for example, focus more on the inscrutable thinking of the former than on the manifold reactions of the latter. Yet the actions of Jewish lawyers and activists during the Ford episode attest to the difficulty involved in mounting a public response that would not further jeopardize their social status, group identity, or civic equality.[6]

Scholars tracing the beginnings of the law of group libel—what today is called hate speech—regard the Sapiro case as a test of incipient efforts to criminalize the published defamation of persons who are identified as belonging to certain ethnic, racial, or religious groups. They conclude that the Sapiro case failed to assert group rights and group identity in the law because Ford’s apology did not carry the force of a jury verdict and because the weak group libel statutes then in existence did not prevent the continued publication and circulation of Ford’s defamatory publications. To be sure, group libel has been slow to gain acceptance in U.S. legal culture. Not until 1952, after the Holocaust, did the U.S. Supreme Court uphold a state group libel statute for the first time, but since that ruling, the Court has given speech expressing racial hatred essentially the same protection as “other speech that causes ordinary offense or anger.” In view of this reading of the First Amendment, legal scholars find it unsurprising that the national Jewish defense organizations declined to take the initiative on group libel during the twentieth century.[7]

The legal strategies that shaped the Independent controversy, however, represented a formidable, and nearly successful, attempt to oppose group libel using existing legal remedies. The interplay of personalities and conflicting visions of how to attain full equality, rather than the undeveloped law of group libel, determined the outcome in the Sapiro case. More than any other character in the controversy, Louis Marshall understood and struggled with the broader constitutional and political issues that constrained the fight against defamatory antisemitism. While serving as the president of the AJC from 1916 to 1929, Marshall largely determined which manifestations of antisemitism called for a collective response and what form that response would take. When the Independent’s antisemitic series began, Marshall tangled with Ford and seriously contemplated litigation. After other AJC officers persuaded him to adhere to the group’s long-standing policy of not litigating antisemitism, he sought to discourage Herman Bernstein, a journalist and author, from filing suit against Ford and publicly criticized Sapiro for doing so. In writing Ford’s apology, Marshall disregarded the legal interests of Sapiro and Bernstein and overrode the protests of his law partner, who was Bernstein’s attorney. He kept his intervention a secret from all but a few close friends, preferring to let the public believe that the apology represented Ford’s thinking. In fact, it represented Marshall’s vision of Jewish acceptance in mainstream society. How he came to write it, a story told here for the first time, reveals that Marshall disregarded the ethical obligations of his profession in the hope of accomplishing an important political end.[8]

For Marshall and other Jewish activists, convictions about law, equality, and citizenship led to conflicts over how best to manage the menace posed by Ford and his newspaper. Bernstein filed his case in New York, which had the nation’s first group libel law on its books. Marshall had written that law and lobbied for its enactment, but he declined to represent Bernstein because he thought a weak individual libel case would undermine the AJC’s more discreet activism. Tried in Detroit, Michigan, a jurisdiction without a group libel law, Sapiro’s suit against Ford was airtight in individual libel, but Marshall never saw that case as a civil rights vehicle. In the end, the opportunity to win a lasting victory over Ford’s defamatory libel went unrealized for two reasons: Ford so brilliantly manipulated the court, the lawyers, and the legal process that he succeeded in exiting the litigation without paying much of a price, while Marshall declined to exploit opportunities offered by law just when they might have benefited the greater cause he served.

Post–World War I American society was a wasp’s nest of xenophobia, restrictive immigration policies, and racial divisions. Yet in some ways it was possible to avoid the sting: American Jews were attaining higher levels of professional prominence and accomplishment than ever before and becoming increasingly active in politics and philanthropy. Jews were deeply concerned about the rise in legal discrimination against Jews in Europe, and the leading Jewish defense organizations raised money for relief efforts and pressed for a Jewish homeland in Palestine as promised by the British government in the Balfour Declaration of 1917. There was little consensus among American Jews about how to deal with the threats facing them. Zionism was undoubtedly the least stable fault line in the American Jewish community after the war; Jewish leaders were also profoundly divided on the subject of domestic antisemitism. Those divisions surfaced when antisemitism spilled out of relatively private contexts and infected public life.[9]

In 1918 the Dearborn Independent was a small weekly in a sleepy town outside Detroit. That year, Henry Ford, in search of a medium that could directly reach thousands of ordinary Americans, purchased the newspaper and converted it into his version of a mass-circulation periodical. Accepting no advertisements, the paper was sold by street vendors and distributed through Ford dealerships, which were required to sell subscriptions along with automobiles. Every week the paper was also sent unbidden to schools and libraries all over the country. Some dealers groused that the money would be better spent improving the Model T, whose sales dropped precipitously in the mid-1920s. By 1927 the Independent was doing as badly as the car, losing more than $2 million in all, but Ford did not care. He intended to make the Independent the common folks’ primer on American culture, literature, and political philosophy, filtered through his small-minded dogmatism.[10]

In reconfiguring the Independent, Ford created a media voice that he alone controlled, one that both spoke in the vernacular of his limited ken and ignored his increasingly unflattering press coverage. The paper created a nostalgic picture of the late nineteenth-century America in which he had come of age. The family farm, the one-room school, and racial and ethnic homogeneity all dovetailed with a profoundly conservative and Christian Fundamentalism. Independent articles extolled the virtues of Thomas Jefferson and Abraham Lincoln, superimposing anachronistic aspects of their political ideas on postwar culture. The paper attacked the modernist impulses of its time, inveighing against new cultural trends that Ford personally abhorred: smoking, drinking, jazz, newfangled dancing styles, and what he believed was the disproportionate influence of Jews on politics, culture, entertainment, diplomacy, industrial capitalism, and the state. As it soon demonstrated, the paper’s most important mission, which made it eternally inglorious, was to disseminate Ford’s antisemitic beliefs. In the words of the historian Howard Sachar, “the Ford assault represented the single profoundest shock [Jews] had encountered in twentieth-century America.”[11]

On May 22, 1920, the Independent launched its first antisemitic series, purporting to reveal the role of the “International Jew” in world affairs. In ninety articles, the Independent excerpted and recapitulated The Protocols of the Elders of Zion, an author-less document purporting to be an actual, secret Jewish plan for world domination. The first article staked out familiar antisemitic beliefs: “The Jew is the world’s enigma. Poor in his masses, he yet controls the world’s finances…. he has become the power behind many a throne.” In publishing the articles, the Independent and Ford indulged in what Deborah Lipstadt called “the age-old inclination to find a Jewish conspirator behind a country’s problems.” Ford’s newspaper spread this “conspiratorial delusion” to some six hundred thousand readers at the peak of its circulation in the mid-1920s. The articles singled out Bernard Baruch, Eugene Meyer, Paul Warburg, Oscar Straus, Felix Warburg, Albert Lasker, Otto Kahn, Julius Rosenwald, and Louis Marshall. All had distinguished themselves in public service, banking, law, or commerce. By associating them with the Protocols’ critique of modern state building and by giving antisemitism a national platform for the first time, the Independent carried on the ignoble tradition, developed in nineteenth-century Europe, of demonizing Jews in an effort to pressure the state to disavow its relationship with them.[12]

The Protocols’ debut in the Independent was the fruit of the avid propaganda-collecting campaign of Ford’s secretary, Ernest Liebold. Allegedly a German sympathizer during World War I, Liebold was a rabid antisemite who encouraged his boss’s latent bigotry. Sometime in early 1920, Liebold procured a copy of the Protocols in New York and promptly handed it to the Independent’s editor, William Cameron, to rewrite. Even before the “International Jew” series began, several journalists, including Herman Bernstein, editor of the New York Jewish Tribune, had been working to discredit the Protocols. In 1921 the London Times reported the true origins of the literary forgery: Russian nationalists wrote it around 1900 hoping to inspire pogroms and to deflect pressure to reform the tsarist government. Undeterred, the Independent continued its series, goading its targets with personal defamation and daring them to sue.[13]

The Independent was not the first such screed to appear in the United States, only the most widely distributed. Before World War I, nativist writings echoing similar themes appeared in such mainstream journals as McClure’s Magazine, Harper’s Weekly, and the North American Review. Their common purpose was to whip up opposition to eastern European Jews—as well as Catholics, the Greek Orthodox, and other non-Protestants—by casting aspersions on their qualifications for citizenship. Together, this propaganda and the ongoing nativist crusade to restrict immigration imbued American culture with explicitly racialized views of Jews. To contemporary progressives, the antisemitic articles in the Independent marked Ford as an ordinary racist with extraordinary resources. By linking Ford’s influence and cultural importance to the nativist crusade, the newspaper gave a patina of legitimacy to assumptions about Jewish unfitness and racial inferiority. Expanding on nativist concerns, Ford was just as intent on vilifying naturalized and native-born Jews as he was in excluding newcomers aspiring to citizenship.[14]

These racial tensions spurred the formation of activist organizations with differing legal and political strategies for responding to antisemitism, and the differences became more pronounced after the war. The AJC was established in 1906 to fight “continuing popular misconceptions about Jews” appearing in the mainstream press. Under Marshall, the AJC sought to deploy influence discreetly rather than to engage in confrontational politics or lawsuits. The group was often criticized as elitist and unrepresentative of the majority of American Jews, particularly after the wave of Jewish immigration from southern and eastern Europe. The AJC’s critics formed the rival American Jewish Congress in 1918 to be more broadly representative of Jews, whatever their ethnic origins. Though the congress was critical of what it characterized as the AJC’s passivity, it was no more willing than the AJC to use test case litigation to challenge antisemitic discrimination. That approach was more typical of the Anti-Defamation League (ADL) of B’nai B’rith, which was organized in 1913 in response to the arrest and conviction of Leo Frank, a Jew, for the murder of a girl in Georgia. Neither Marshall’s work on Frank’s legal appeals nor the ADL’s direct public advocacy saved Frank, who was lynched in 1915 after his death sentence was commuted to life in prison. Frank’s case was a rare exception to the general pattern of American antisemitism, which remained a localized phenomenon that did not lead to widespread physical violence against Jews. It was Ford’s newspaper that amplified the discourse of nativism and racism after 1920, and it was Ford who embodied the rejection of “americanizing” newcomers, particularly Jews, in favor of a reinvigorated insistence on simply keeping them out.[15]

As the nativists’ message entered mainstream political debate, many Jews recognized that Ford’s campaign endangered their claim to social equality. Accordingly, they demanded a collective response. Rabbis were inundated with demands from their congregations that they publicly rebuke Ford. A Cincinnati rabbi urged that postal authorities be prevailed upon to keep the newspaper out of the mails. The Jewish defense organizations found themselves on the defensive. While New York–based organizations such as the AJC and ADL exercised considerable national influence, Jews across the country did not always follow their leadership. Any collective response to Ford’s propaganda campaign was going to require more than an agreement on strategy and tactics; it would be essential to develop a consensus on policy and priorities that more than a decade of activism had failed to produce.[16]

Local attempts to intervene with Ford conflicted with the AJC’s approach. Detroit, Ford’s hometown, remained an “Anglo-Saxon Protestant stronghold” until well past midcentury, yet by 1920 the local Jewish community had established a significant presence. Its unofficial leader, Rabbi Leo M. Franklin, stood at the epicenter of local reaction to the Independent. Franklin presided over the largest congregation in the city; he was also Ford’s friend and former neighbor. They remained on good terms even after the Fords built a grand estate in Dearborn, where Jews were barred from owning property. Each year, Ford presented Franklin with a new, custom-built car. If anyone believed it was possible to prevail on Ford through a personal appeal, it was Rabbi Franklin. Certainly no one in Detroit had greater reason to want to succeed in ending Ford’s campaign. Buttressed by hundreds of letters from all over the country urging him to intervene, Franklin met with Ford in early June 1920. The meeting was interrupted by the arrival of a furious telegram from Louis Marshall in New York; upon reading the wire, Ford abruptly ended the conversation. When Franklin blamed Marshall for spoiling his efforts to negotiate a cease-fire, Marshall dismissed Franklin as a naïve apologist who was too ready to accept the idea that Ford intended to attack only “unscrupulous” Jews.[17]

From then on, Marshall viewed Franklin as an obstacle. When Franklin published an article in the Detroit papers describing his meetings with Ford and declaring that but for the untimely arrival of Marshall’s telegram, he would have succeeded in persuading Ford to stop, Marshall dismissed him entirely. “The worst thing that could possibly be done,” he wrote to Franklin, “would be to let Mr. Ford act under the impression that there are any Jews who will excuse this kind of publication.” Throughout the decade, Franklin continued to believe that Ford did not harbor hate toward individual Jews or toward Jews as a race, but Marshall could never countenance that explanation. He saw antisemitism as an offense to all Jews everywhere and the “International Jew” series as “a libel upon an entire people.” As AJC president, Marshall was accustomed to taking the lead in Jewish affairs. He saw the Independent’s antisemitic campaign as yet another occasion to do so.[18]

The acrimonious exchange between Marshall and Franklin highlighted preexisting divisions within the Jewish community. Franklin and Marshall embodied the regional rivalry that had arisen in the late nineteenth and early twentieth centuries as the physical center of Jewish leadership moved from Cincinnati to New York. The relocation amplified a shift in the character of leadership. The new activist organizations, led by lawyers, supplanted the authority of Jewish religious figures. Marshall and Franklin stood on opposite sides of that divide, and their approaches to the Ford matter reflected their different institutional and cultural roles. While Franklin continued to be conciliatory, Marshall saw the problem as requiring an institutional and organizational response, not as one that could be dealt with, as Franklin urged, through social channels and personal entreaties. Franklin’s relationship with Ford and Marshall’s exchange with the automaker put them at odds at a critical point in the Independent’s activities. Neither one succeeded in ending the “International Jew” articles at that time. Even if they had been able to function as a team, they would probably have failed since Ford, with Liebold executing his every instruction—and perhaps supplying some of the initiative—then showed no inclination to stop publication. Still, Marshall and Franklin each believed that, but for the other’s interference, he would have achieved the desired result.[19]

The impasse was of little consequence to Marshall’s colleagues at the AJC, who were more concerned about what Marshall might do in the face of the continuing provocation. His telegram to Ford elicited only an insulting reply over the name of the Dearborn Publishing Company, the holding company that officially owned the paper. The letter disputed his characterization of the offensive articles and invited him to continue reading the series. Marshall responded with a terse message signaling that litigation would be his next step: “Your telegram in answer to my personal message to Henry Ford has just been received from which I infer that your answer is authorized by him and betokens his sanction of the articles in the Dearborn Independent to which I have taken exception in words that I shall be able to justify.” Others, such as the immigration lawyer Max Kohler, sought to cool this impulse: “Mr. Marshall talked about a possible prosecution but I think on sober thought, he will see the futility of such [a] course.” Kohler believed that Marshall would adhere to the AJC’s long-standing policy of refraining from litigating antisemitism unless it specifically denied Jews their civil rights. Though offensive, Ford’s libelous publication had no such effect, at least not directly. For the moment, though, Marshall was bent on swift retaliation. As he told Fred Butzel, a Detroit attorney and an AJC member, “It was my view from the beginning, that the only way to deal with an abuse of this kind was to come out into the open and hit it as hard as possible.” Such a sentiment led friends to express concern at his contribution to what they saw as an unfortunate escalation of tension during the summer of 1920.[20]

Marshall’s view of the Ford publication as “a libel upon an entire people” and his implicit threat to sue raised the issue of what legal remedy, if any, the Jewish defense organizations should pursue. He and his colleagues may have believed the Independent guilty of libelous defamation of Jews as a group and of individual Jews, yet they also knew that contemporary First Amendment doctrine and libel law protected the newspaper’s right to publish what it saw fit as long as what it published was true. After the war, controversies over free speech abounded, with the U.S. Supreme Court eventually embracing a civil libertarian position on unpopular or unpatriotic speech under federal espionage laws. Still, as David Rabban has insightfully argued, the contemporary debate over free speech concerned mainly political freedom of expression for individuals. As a result, the hateful, insulting, and defamatory speech appearing in the Independent fell outside the concerns of the courts and of such guardians of free speech as the American Civil Liberties Union. In most states the only way to challenge Ford’s newspaper was to sue, alleging individual libel; the only way to win was to prove the publication was both false and malicious.[21]

Yet, as Marshall knew, a remedy for published defamation of a group existed in New York at the time of Ford’s publication. In 1907, after friends were denied accommodations at upstate resorts, Marshall drafted an amendment to the state’s civil rights law. Finally enacted in 1913, the law did not require hoteliers to rent rooms to all comers; rather, it prohibited the publication and dissemination of statements that advocated the exclusion of anyone on the basis of race, creed, or national origin. That group libel statute thus offered a potential weapon in the fight against libelous antisemitism by threatening criminal punishment of anyone who “offended the reputation of American Jews as a group.” Throughout the 1910s the law remained untried, with Marshall apparently preferring to field inquiries from resort owners about the legalities of their advertisements rather than to file lawsuits. Seven states adopted versions of the New York statute before 1930, making group rights a nascent category in First Amendment law.[22]

If it ever occurred to Marshall to use the New York group libel law to challenge the Ford articles, he never urged such an approach on his colleagues. As Kohler predicted, Marshall abandoned the idea of suing Ford once it became apparent that no one else in the AJC supported such a move. Cyrus Adler, Jacob Schiff, and other executive committee members were reluctant to come out against Ford directly, though they found the Independent’s rehashing of the Protocols repugnant. The committee decided not to reply publicly to Ford “on the theory that … the bringing of the Jewish question into discussion throughout the country is exactly what Mr. Ford was aiming at.” Worried that a discussion about the fitness of Jews for citizenship—the meaning of the “Jewish question” in this context—might amplify accusations of conspiracy and warmongering, the AJC adopted a policy of public inaction consistent with the style of its prewar activism. Marshall was instructed to communicate privately with editors of the Jewish newspapers, urging restraint and advising them not to endorse any Jewish boycott of Ford because it “might act as a boomerang and produce a counter boycott in which the Jews would greatly suffer.”[23]

Marshall continued to search for some active response to Ford that other AJC members could endorse. Since he could not persuade them to attack Ford directly, he took aim at Ford’s source, the Protocols, to which the Independent was giving its widest ever circulation in the United States. At a meeting of the AJC executive committee in October 1920, Marshall outlined the relationship between the Protocols and the Independent articles. As he intended, the group decided to commission a refutation of the Protocols. The idea of responding to Ford by attacking the Protocols also won support at a meeting of national Jewish organizations later that month, momentarily uniting Jews against their nemesis. A statement written by Marshall and Oscar Straus was released to the press in December and mass-mailed in pamphlet form. For the next six years, that statement would constitute the AJC’s sole public comment on the Independent’s relentless campaign.[24]

That result was in keeping with Marshall’s long-established view of how the AJC and, implicitly, Jews everywhere should handle public controversies involving antisemitism. Years of constitutional litigation over civil rights had convinced him that “the Jewish position in America was sound” as long as Jews embraced the secular ideals of American law and citizenship. His characteristic approach of working behind the scenes rather than provoking “great public controversies” had guided both his work as a lawyer and the policies of the AJC. By furnishing a living example of good citizenship and refraining from retaliation when attacked, he believed, Jews would earn the respect of their fellow citizens. Marshall’s initial impulse to go after Ford in court faded by the end of 1920. When an Independent article devoted entirely to him appeared a year later, he refused to take the bait and both publicly and privately stuck to his renewed resolve to deny Ford the dignity of a response.[25]

That resolve was sorely tested that year. Marshall was obliged to observe as the Dearborn Independent challenged municipal regulations aimed at curtailing its sales on city streets. Newsboys’ practice of crying out the headlines had caused melees in Toledo, Cleveland, Cincinnati, Chicago, and other cities during the winter and spring of 1921. Citing the well-established authority of the government to protect public safety, police responded by promptly arresting newsboys, and city councils passed ordinances banning on-street sales. Just as swiftly, the Independent’s attorneys obtained injunctions to end such practices, and by mid-1921 the paper resumed on-street distribution. The ban on on-street sales, an Ohio federal court ruled, violated the First Amendment. The cities and the Independent then compromised, agreeing that on-street sales would continue but that newsboys would not shout the insults in the paper’s headlines that had provoked the riots. Marshall and the AJC kept a studied distance from those events.[26]

Later that year, when an opportunity arose to test the New York group libel statute, Marshall wanted no part of it. The journalist Herman Bernstein, whom the AJC employed to investigate antisemitic propaganda, took offense when the Independent named him as Ford’s source for the “International Jew” articles. Bernstein issued vigorous denials. When Ford repeated the allegation in an interview, Bernstein decided to file suit. He asked Marshall to represent him, but Marshall refused, noting that Bernstein had no case in individual libel: “The fact that [Ford] lied about you and that he attributed to you opinions which you never expressed or harbored does not in and of itself constitute slander or libel,” he advised. When Bernstein insisted, Marshall discouraged his partner, Samuel Untermyer, from taking the case, believing that Bernstein should choose “a non-Jewish lawyer.” Bernstein and Untermyer disregarded Marshall’s advice, filing suit in a New York State court in 1923.[27]

The Bernstein case represented the first public break with the resolve of Marshall and the AJC to avoid litigation. As the suit got under way, Marshall remained publicly silent, while privately reminding friends that he opposed it. Yet he carefully monitored the case, even advising Untermyer on such material questions as whether to sue in Michigan—”enemy territory”—or in New York, where it would be difficult to serve the nonresident Ford with a summons to appear. Untermyer pursued the action vigorously, but as Marshall foresaw, attaining personal jurisdiction over Ford proved impossible. The case languished in discovery proceedings for more than four years.[28]

Though the AJC had declined to sue Ford and Bernstein’s suit had stalled, the Independent stopped its attack on Jews in early 1922. The antisemitic campaign had generated widespread adverse publicity for Ford. In July 1921, after reading newspaper reports that President Warren G. Harding had joined Ford on a summer holiday, Marshall sent the president a letter pleading for him to intervene: “The Jews of this country…. cannot understand why they should be dragged through the mire, why in this land of liberty there should be a recrudescence of that same persecution from which their ancestors had suffered in lands whence they had come to America as a haven of refuge.” Harding complied, sending a personal emissary to Ford a few months later. The following January, Ford announced that the Independent was going to suspend the “International Jew” series. He neither alluded to President Harding’s intercession nor credited the influence of public opinion. Instead, he declared publicly that the paper would address other urgent issues, a statement that fanned rumors of his presidential aspirations.[29]

Meanwhile, the Independent articles lived on in another form. In November 1920 the Dearborn Publishing Company had begun to issue the articles in pamphlets sold in sets of four volumes and priced at one dollar per set. This collection, titled The International Jew, put the Ford name—and the stamp of approval of American industrialism’s towering figure—on the Protocols. Liebold did not copyright the work, thereby permitting all comers to translate and publish it. In short order it appeared in twelve languages on three continents. Aghast at the rising circulation of the Protocols and The International Jew, Marshall authorized the AJC to finance the 1921 publication of Bernstein’s The History of a Lie, one of the first American contributions to the literature discrediting the Protocols. The cessation of the Independent articles pleased Marshall; before The International Jew became readily available, he commented publicly that antisemitic agitation had decreased in the U.S. and that few citizens found the articles credible.[30]

The hatred and intolerance of the “tribal twenties,” however, had hardly abated. The Ku Klux Klan was sowing terror, liberally fertilized by anti-Catholicism and antisemitism. The 1924 federal immigration restrictions slammed the doors on many newcomers. That year, the Independent resumed its attacks on Jews. This time it focused on a new target: Aaron Sapiro, a California lawyer unconnected to the East Coast Jews who had hitherto managed the Ford problem. Sapiro was formidable, and when the Independent attacked his character and professional conduct, he fought back. He was determined, as Marshall had been initially, to use the law to hold Henry Ford responsible for the attacks in the Independent. Though based on the narrow ground of individual libel, Sapiro’s legal strategy for stopping the newspaper and holding Ford accountable was more potent than anything the Jewish defense organizations had yet tried.[31]

The Independent’s attacks on Sapiro came at a time of professional vulnerability for him. As leader of the farm cooperative movement in the United States and Canada during the 1920s, he organized farmers on a massive scale, but by mid-decade many of his cooperatives had collapsed. Advocating a turn away from the grass-roots approach of traditional cooperation, Sapiro believed that cooperatives should monopolize the processing and marketing of entire commodities, thus creating industrywide combinations designed to put control of agricultural profits in farmers’ hands. The farm press and lobbying organizations were deeply divided over his approach, which critics believed imposed corporate structures on farmers and gave them little voice in management. His use of horizontal combinations and collective bargaining in the marketing of farm commodities made advocates of traditional cooperative marketing uneasy.[32]

The Independent went far beyond a mere critique of Sapiro’s economic model of cooperation. The paper proclaimed that Jewish involvement in farming conformed to a pattern foretold in the Protocols. It claimed that Jews sought to control agriculture, enslave individual farmers, and undermine the state and all democratic institutions. “Jewish Exploitation of Farmers’ Organizations,” shrieked one headline. “Does the American farmer never pause to ask himself why his only ‘friends’ should be an interlocking group of Jews?” The articles made two essential allegations. The first was that behind the “front” of the cooperative movement, Sapiro headed a conspiracy of Jewish bankers, financiers, and speculators. The conspiracy aimed to impoverish American farmers and keep them subservient to financial and marketing systems. Second, the newspaper charged that Sapiro had committed legal malpractice, fraud, and misrepresentation. Not even Sapiro’s fiercest critics had suggested such a thing. Unlike Marshall and the AJC, Sapiro could not stand idly by. Perhaps because the cooperative movement was in trouble and his career as its promoter had passed its peak, he could not let Ford’s publications shape the public’s perceptions of either one. Publicly answering Ford’s accusations gave Sapiro the opportunity to restore his standing with farmers, while emphasizing that Ford, by attacking cooperation, was no friend of agriculture.[33]

During the summer of 1924, Sapiro spoke out about Ford’s attacks and demanded a full retraction. Friends, clients, cooperative leaders, and political supporters wrote to Ford and the Independent protesting its accounts of Sapiro’s role in cooperative organizing and of the fate of agricultural industries that followed his model. “We regard Mr. Ford as responsible for the policy of the Dearborn Independent,” the agricultural leader Walton Peteet informed Ernest Liebold. After waiting months for the Independent to heed his plea, Sapiro composed his own epistle. Issued in January 1925, Sapiro’s demand for retraction was a harbinger of the litigation that followed three months later. He could not, however, count on Marshall’s support. The AJC president publicly dismissed Sapiro’s threat to sue with the comment that a lawsuit only gave Ford “the publicity which he has craved ever since he embarked upon his attack [on] the Jews.”[34]

There is no evidence to suggest that Ford’s lawyers took Sapiro’s case any more seriously than Marshall did. A prudent libel lawyer surely would have. Though newspapers could expect that courts would protect them from state-imposed prior restraints on circulation, contemporary libel law generally tolerated little defamation of public figures. Sapiro could easily defeat any attempt by the newspaper to use truth as a defense. His demand for retraction contradicted numerous assertions by the newspaper that he was associated with particular agricultural industries and organizations. He had never worked for any of them. The paper’s refusal to acknowledge the errors after many individuals and organizations had pointed them out demonstrated the malice required for a damage award. Confronted with such a conclusive refutation, a publisher with less resolve and fewer resources might have backed down. But the Ford forces were determined to fight and confident they would prevail.[35]

Sapiro adopted a more indirect strategy for dealing with the antisemitic implications of the Independent’s articles. At this point, in early 1925, Sapiro viewed his case as an individual grievance; he did not see himself as staging an action on behalf of all Jews or as defending Jews in general. His intent was to protect his professional reputation, not to refute the irrational logic of antisemitism. Press reports emphasized Sapiro’s claims of individual injury: “Mr. Sapiro accuses Mr. Ford of approving ‘an attempt to destroy my participation in the cooperative marketing movement.'” The demand for retraction set out the strengths of Sapiro’s individual libel case while avoiding extended discussion of the explicit antisemitism of the articles. This was no group libel claim; it was a straightforward defamation dispute. Sapiro noted that if Ford refused to retract, the automaker would find himself in “the open tribunal of justice” where he would be forced to submit to the authority and rules of the legal process.[36]

When Ford and the Independent answered Sapiro’s demand by printing several more defamatory articles, he filed suit, going his own way on the issues of venue, damages, and representation. With the Bernstein case going nowhere in New York, Sapiro in April 1925 chose to sue in federal court in Detroit, Ford’s hometown. More than anything else, Sapiro wanted to “force [Ford] to appear as a witness.” He sought damages of $1 million, a sum that riveted the attention of the national press. Finally, Sapiro hired a flamboyant Irish Catholic Detroit trial lawyer named William Henry Gallagher. The selection of Gallagher, known to be “tiger-fierce on cross-examination,” surprised Ford, who expected Sapiro to retain “a Jew lawyer from New York,” in the words of Ford’s right-hand man, Harry Bennett. Apparently Sapiro shared Marshall’s belief that representation by a lawyer who was not Jewish would effectively contradict the conspiratorial assumptions of Ford’s antisemitism. Overall, Sapiro’s litigation strategy took a middle course, neither pushing for Jewish vindication under group libel law nor silently absorbing personal defamation.[37]

To head his legal defense, Ford retained a sitting U.S. senator, James A. Reed, a Missouri Democrat and prominent Kansas City corporate lawyer. It was a hiring decision that prized star power over legal expertise. Reed had no reputation in libel law, but he was a masterful litigation strategist. The Ford legal team immediately embarked on a campaign of evasion and delay. The discovery proceedings stretched out over two years, the objective being, as Reed wrote in a note to himself in early 1926, to “harass and impoverish the plaintiff.” Ford employed a small army of private investigators and lawyers to retrace Sapiro’s entire career. They took depositions and interviewed witnesses in nearly every state. Sapiro had to pay his lawyer to attend all those sessions. The Ford team delayed the trial through much of 1926 and even secured the recusal of the presiding judge that summer when he threatened to set an immediate trial date. The next judge assigned to the case granted the defense another six months.[38]

Having found no evidence to support the Independent’s conspiracy theories, Ford’s lawyers sought to divert the case to mundane issues at a pretrial hearing in March 1927. Reed argued that the case had nothing to do with antisemitism; it concerned only the truth of the Independent’s characterization of Sapiro’s professional conduct. As Reed proclaimed, “This is the same kind of case as it would be if Mr. Sapiro happened to belong to some other race than the Jewish race, and I am casting no reflections upon him because he belongs to that race.” In short, the Ford defense contended that it could simply ignore the articles’ plainly antisemitic language and implications. It would be up to the plaintiff and his attorney to demolish this argument before the jury. The press had already drawn its own conclusions, heralding the trial in group libel terms. “The Jews Try Ford!” read a banner headline in the New York Evening Graphic.[39]

When the highly publicized trial finally began on March 15, 1927, Sapiro and his attorney made the Independent’s antisemitism and Ford’s responsibility for it the central issues of their case. In his opening statement, Gallagher ridiculed the defense’s implausible interpretation of the articles. The defense’s denial of the Independent’s antisemitism meant that the plaintiff and his lawyer would have to emphasize it at every turn; their pretrial focus on personal defamation now had to include group libel claims as well. The Independent’s attack against Sapiro, Gallagher argued, was profoundly and thoroughly antisemitic: “[Ford and the Independent] claim that he dominates American agriculture not for his own selfish purposes, not in the interests of the farmers, but merely as the instrument and tool of this international body of Jews who have taken him as the instrument of bringing the American farmer under subjection and control.” In other words, it was only because he was Jewish that Sapiro was vulnerable to such insinuations. Though he had resisted stating his grievance in group libel terms until the trial began, thereafter Sapiro no longer separated his individual libel claims from the Independent’s broader slurs against all Jews.[40]

Just as Sapiro and Gallagher began to connect the Independent’s libels of Sapiro to its disparaging characterizations of Jews, they hit a roadblock. Reed objected to Gallagher’s assertion that Sapiro could claim damages for Ford’s libels against all Jews. The presiding judge, Fred Raymond, ruled that in the absence of any federal law on the subject, Michigan libel law, which made no provision for group libel, governed the case. That left the jury with only one issue to consider: whether the Independent had defamed and damaged Sapiro. The ruling pushed Gallagher back to the basics of his case; he needed to prove the newspaper’s malice and Ford’s personal liability.[41]

More than four weeks of testimony established a strong case for the plaintiff, just as Sapiro’s demand for retraction had predicted. The editor of the Independent, William Cameron, claimed he alone was responsible for everything published in the newspaper, even the column titled “Mr. Ford’s Page.” Cameron declared that the paper expressed his views, not Ford’s, and that he discussed the articles only with their author, Harry Dunn, and with other subordinates. Gallagher urged the jury not to believe Cameron. The Independent, he said, “is merely a means of expression for Henry Ford.” Cameron claimed that Ford did not even know who Aaron Sapiro was, but that testimony was swiftly impeached by the former Independent employee James Martin Miller, who recalled that Ford had said, “We are going to expose [Sapiro].”[42]

Even before Sapiro took the stand, press coverage had turned decidedly in his favor. Cameron’s testimony generated widespread skepticism, while Miller’s seemed credible. Ford’s lawyers could only hope that Reed’s cross-examination would break Sapiro. In the meantime, Judge Raymond gave the defense several favorable rulings. He routinely sustained Reed’s objections when Gallagher tried to elicit testimony from Cameron, Miller, and Fred Black, the Independent’s business manager, on Ford’s involvement with the newspaper, and he excluded as irrelevant much of the evidence Gallagher sought to introduce to prove harm. Sapiro found a frustrating pattern in the judge’s rulings: “They let Senator Reed get in all of that sort of stuff [alleging that Sapiro suborned corruption in his cooperatives] to the jury without interruption from the judge; but … we couldn’t even bring in a legitimate war record to offset the charge that I was trying to subvert the U.S. government with the aid of the Industrial Workers of the World.”[43]

Proving his mettle as a witness, Sapiro withstood three weeks of Reed’s cross-examination. Reed focused his inquiry on Sapiro’s legal representation of his clients and the fees he received. Seeking to discredit Sapiro, Reed questioned him for days about the arcane and trivial details of his law practice. But Reed’s command of such things as the dates of meetings, agreements, services performed, and other particulars of Sapiro’s work in cooperative marketing could not compare to Sapiro’s own. The strain of the prolonged cross-examination took its toll on the lead defense lawyer. On April 18, Reed was reported confined to his hotel bed, a development that abruptly halted the proceedings.[44]

The delay focused the attention of the press and the public on the central drama of the case: Would Ford take the witness stand? It had taken nearly sixteen months to serve Ford with a witness subpoena, a task finally accomplished in September 1926, yet Ford’s lawyers insisted that the wrong man had been served. During the trial Ford did not deign to set foot in Detroit’s federal courthouse; during the recess he set events in motion to guarantee he never would. Early in Sapiro’s testimony, on the evening of March 28, Ford was apparently driving alone in Dearborn when he was involved in an accident, hospitalized, and declared indefinitely unavailable. This sensational news broke April 1, and when Reed’s illness forced the recess, the matter of Ford’s availability remained unresolved. Gallagher told the press he intended to seek a court order for an independent medical examination to confirm Ford’s condition.[45]

Before he could argue his motion, Ford’s bodyguard, Harry Bennett, engineered the declaration of a mistrial. First, he produced affidavits from fourteen witnesses alleging that Sapiro had attempted to bribe one of the jurors with a box of candy. Furious at such tactics, Gallagher implored the court to instruct the defense to keep Ford’s private security force, which had been “very greatly represented in the courtroom and the corridors of this building,” away from the proceedings. Judge Raymond ordered the Bureau of Investigation (what later became the Federal Bureau of Investigation, or FBI) to investigate—Sapiro was eventually exonerated—but refused to grant the defense a mistrial. Bennett then arranged for an acquaintance, a Detroit News reporter, to interview the juror in question. The juror, a Detroit housewife named Clara Hoffman, indignantly denied accepting anything from the plaintiff; the box of candy, she said, represented her winnings in a card game with other jurors. In a burst of indiscretion, she confirmed the defense’s fear that it had lost. The affidavits, she declared, were proof that “certain people were trying to get ahold of something to have the case thrown out of court.” That comment made a mistrial unavoidable; Hoffman had publicly expressed a prejudiced opinion about the case before the jury began its deliberations. The defense may have lost the jury, but it got what it wanted from the judge.[46]

Sapiro came tantalizingly close to winning in court. He proved he had been professionally injured and substantially damaged by the Independent’s false allegations. Discrediting the Independent’s attacks on him would have brought the paper and its anti-Jewish campaign into official disrepute. Had the jury rendered a formal verdict—which, judging by the evidence, might well have been in his favor—Sapiro could have rightfully claimed a legal as well as a moral victory over the forces of hate. Such a victory eluded him, however, for at this point Ford and Marshall worked out an agreement that gave away the strengths of Sapiro’s case and weakened his bargaining position in settlement negotiations.

While the lawyers met with the judge to discuss the starting date for a new trial, Ford took matters into his own hands. At his behest, Bennett sought out the former assistant U.S. attorney Earl J. Davis, who then contacted Joseph Palma, former head of the U.S. Secret Service’s New York office. Palma in turn tapped a former congressman from New York, Nathan Perlman, an official with the American Jewish Congress. Palma knew Perlman through government contacts and told him that Ford wanted to settle. Perlman decided that both major Jewish defense organizations should be involved in the denouement of the Ford matter. He telephoned Marshall at his office, described the contact from Ford’s people, and asked whether Marshall would be willing to write a settlement agreement. Marshall, who had already told the Detroit attorney Fred Butzel he was eager to assist with a settlement, jumped at the chance, drafted a statement, and sent it to Dearborn. By telephone, Bennett read the statement to Ford, who instructed Bennett to sign Ford’s name and release it without changing a word. Ford’s oblique handling of the end game demonstrated his skill at manipulating the parties, the lawyers, and the legal process. He literally left no fingerprints on the case; he neither took the witness stand nor ever touched the apology written for him and published over his ersatz signature.[47]

Marshall had much to gain by collaborating with Ford on the apology. He sought to write a fitting end to the ugly episode; to dictate the terms of Ford’s surrender gave him enormous personal and professional satisfaction. But he surrendered what Sapiro and Gallagher had painstakingly established in the trial: Ford’s personal responsibility. In the apology, Marshall had Ford confess to having delegated the responsibility of running his newspaper to trusted subordinates who betrayed him by publishing articles and editorials that in no way represented his views. “It goes without saying,” Ford claimed in the statement, “that in the multitude of my activities it has been impossible for me to devote personal attention to their management or to keep informed as to their contents. It has therefore inevitably followed that the conduct and policies of these publications had to be delegated to men whom I placed in charge of them and upon whom I relied implicitly.” Having discovered the paper’s actual contents by finally reading it, Ford was supposedly chastened to discover that Jews attributed the paper’s content to him and believed that the publication represented his views: “Trusted friends” believed that the “righteous indignation entertained by Jews everywhere toward me” is “justifie[d] … because of the mental anguish occasioned by the unprovoked reflections made upon them.” He repudiated the Protocols and pledged to recall all editions of The International Jew. He authorized a full retraction in the Independent and offered sincere and heartfelt contrition: “I deem it to be my duty as an honorable man to make amends for the wrong done to the Jews as fellow-men and brothers, by asking their forgiveness for the harm that I have unintentionally committed … and by giving them the unqualified assurance that henceforth they may look to me for friendship and goodwill.”[48]

The press reacted to the apology with mingled skepticism and hope. The explanation for the paper’s attacks elicited scorn; the expression of goodwill, the desire that it was heartfelt. As Marshall observed, “The public press has given ample evidence that it does not believe his explanation but is content to accept his retraction and prayer for forgiveness, as sincere.” The Nation bluntly commented, “In any other man such naivete would be impossible…. Has even an absentee owner of a magazine no responsibility whatever for its contents? That, certainly, would be carrying the doctrine of editorial freedom to lengths which even The Nation would hardly indorse.” Parodies of the statement abounded in newspapers and magazines; within weeks a satiric song, “Since Henry Ford Apologized to Me,” was recorded. Yet people wanted to believe that Ford’s gesture might expunge the ugliness of racism from the national conscience. The Pittsburgh Sun editorialized, “Let the ugly chapter now be closed. Mr. Ford’s retraction is complete and earnestly sincere on its face.” In ending the trial and the lawsuit as he did, Ford proved a master at exploiting such idealism.[49]

At the time, few Americans knew the authorship of Ford’s statement. Marshall kept his role out of the press, leaving Americans to read the text as an earnest attempt by the wealthy but bumbling Ford to clear the slate and reestablish himself as the cultural leader they had long believed him to be. The apology expressed contrition to the Jewish community in general and no one in particular. Indeed, Aaron Sapiro, whose lawsuit had precipitated the mission of Ford’s representatives to New York, did not rate a single mention. In effect, Ford apologized for the one thing the trial had established that he would never lose on: group libel, the only offense that mattered to Marshall. Accordingly, both mainstream and Jewish newspapers construed the apology as a victory for Jews and as Ford’s admission of defeat.[50]

For Marshall, writing the apology created a difficult ethical dilemma, one that he kept private and sought to minimize. He first tried to obtain Sapiro’s authorization to represent him in the negotiations, a necessary step since Sapiro was already represented by counsel. Sapiro rebuffed the offer and directed Marshall to defer to Gallagher, who “stood by [me] throughout the fight and is entitled to any prestige of settlement which his courage has earned.” Not only did Marshall disregard Sapiro’s instructions, but he also ignored the wishes of his law partner, Samuel Untermyer. As counsel for Herman Bernstein, Untermyer had a direct interest in Marshall’s negotiations with Ford.[51]

Before the apology became public, Untermyer caught wind of the secret talks and sent Marshall increasingly urgent wires demanding to be consulted. Untermyer heard that Marshall was going to incorporate into Ford’s statement the idea that Ford was ignorant of what his subordinates at the newspaper were doing. He protested the plan because it contradicted the evidence in the Sapiro trial and, more critically, because it might compromise both of them professionally since as partners they shared an obligation to Bernstein, Untermyer’s client. “By insisting, as usual, on ‘going it alone,’ I think you have made a mistake. However, if you can arrange so that our statement commenting on this will not be understood [as] and not regarded as a breach of faith by you or me I do not see that I have any right to object. Otherwise I do object—decidedly.”[52]

Anxious to get Ford’s signature on a historic confession of wrongdoing, Marshall snapped at Untermyer: “For once I must insist that you not interfere. This is a matter affecting the destinies and honor of hundreds of thousands infinitely more important than anybody’s lawsuit and there should be no cross-purposes.” Untermyer fired back: “[I b]itterly resent your amazing intolerant attitude. It is you who are wantonly inconsiderately interfering in my affairs…. While I agree this is more important than anybody’s lawsuit, I have and you should have obligations in [Bernstein’s] lawsuit which I will not sacrifice.” Suspecting that Marshall might shirk his professional obligations to their firm’s client, Untermyer tried again: “Our first duty here is to … Bernstein and nothing must be done until he is satisfied nor while Sapiro is [un]satisfied, for to them belongs the sole credit of bringing this thing to a head and I object to anything being done that does not accord them this credit.” Clearly unmoved, Marshall wrapped up the Ford apology without consulting anyone about its terms.[53]

After the apology was published on July 8, 1927, Untermyer settled the Bernstein case. The AJC publicly credited his client for the welcome development of Ford’s apology, while downplaying the effect of the Sapiro trial. No allegation of conflict of interest or professional misconduct was ever made against Marshall, but then no one in a position to know the inside story would have dreamed of airing such differences publicly. Untermyer had good cause to be angry, but he kept it all in the family; he and Marshall, in addition to being law partners, were related by marriage. Unlike Sapiro’s case, which had come close to victory in court, Bernstein’s was nowhere near going to trial. The apology, which opened the door to a favorable settlement that otherwise might have taken years to accomplish, was a providential development for Bernstein and Untermyer.[54]

The apology also paved the way for Sapiro to settle his case. Telling friends that he had no intention of accepting damages, he accepted a $140,000 settlement that left him with actual losses of around $70,000. In addition to office overhead, which he pegged at some $30,000, Sapiro had spent “a great deal of money” on secret investigators to check up on potential Ford witnesses. The money did not matter, he declared, because he had obtained the victory he sought: “This trial actually forced Ford to his knees; and the pathetic retraction is a direct result of his dread of facing us under oath on the witness stand. I feel amply repaid for all that this has cost in time, money, and work.” By forgoing the opportunity to get rich from the case, Sapiro believed he had placed himself beyond all possible reproach: “I feel that I have done all that I should have done, both for my own people and cooperation.” Privately, however, he fumed at Marshall for stealing a victory he had done nothing to earn. Within months, Sapiro criticized the AJC president at a public event in New York, cementing a permanent rift between the two.[55]

The satisfactory settlements in both cases did not absolve Marshall from his ethical difficulties. However laudable his goal—to extract from Ford the broadest possible apology for the wrongs done to the Jewish people without appearing to interfere with ongoing litigation—the apology was inextricably related to both lawsuits; indeed, it is unlikely that Ford would have apologized had he not faced the real prospect of testifying in court. Marshall saw the matter differently. First, he maintained that his actions had not affected the litigation, telling the Sears retailing magnate Julius Rosenwald, “In my opinion, except remotely, neither the Sapiro nor the Bernstein cases had anything to do with the retraction…. the retraction, on the other hand, contributed largely to the settlement of the Sapiro case, and will result in a settlement of the Bernstein case.” As he had earlier explained to Untermyer, the apology transcended any lawsuit in importance:
I did not desire to have the document intended to set the Jews right in the public mind made a subsidiary to any settlement of a law suit, because it would cheapen the whole matter, but on the contrary that the settlement of the law suits would be subsidiary to the execution of a statement exonerating the Jews from the libels which had been published in the Independent.
Once he became a player in the negotiations, Marshall acted as if his judgment alone mattered. In his view, obtaining Ford’s apology at the expense of the lawsuits served both justice and the politics of Jewish civil rights activism as he understood them. He believed the lawsuits could do nothing to protect the group identity of Jews.[56]

Second, he distanced himself from his law partner in order to diminish the appearance of any conflict of interest. Reminding Rosenwald of his opposition to the Bernstein suit, Marshall casually remarked, “For your information I may say that I have never had anything to do with that suit. I refused to bring it. It is Mr. Untermyer’s action. As you probably know, he and I have not been partners for more than ten years.” If that were true, the two had done little to manifest the end of their partnership. All the signs of partnership spring from the records of the Bernstein case; every paper Untermyer filed bore the name Guggenheimer, Untermyer and Marshall. The firm was so listed in national law directories until after Marshall’s death in 1929. For Marshall to engage in such rhetorical disguise seems uncharacteristic of the distinguished lawyer, even in an unprecedented situation. Only if they were not partners could Marshall construe his exchange with Untermyer as an informal conflict between friends rather than a violation of his fiduciary responsibilities to his firm’s client. One might grant Marshall the benefit of the doubt but for one damning piece of evidence: he accepted his share of Untermyer’s fee in the Bernstein case, telling Bernstein “he would not use a single cent of that money” but would hold it to finance Bernstein’s revision of The History of a Lie. Bernstein reissued his book after Marshall’s death, but he never received the money. It is difficult to avoid the conclusion that Marshall violated the ethical canons of his profession with impunity. [57]

Events subsequent to the settlement of both libel cases revealed how much Marshall had invested in playing his self-assigned role. Beneath the surface of the triumph that he had just won, Marshall exchanged recriminations with Perlman and Rabbi Franklin. Though he claimed no desire for public recognition, Marshall quickly rebuked them for claiming credit in press interviews for what he believed he alone had brought about. For Perlman he reserved particular scorn: “Perlman merely introduced Davis and Palma, Ford’s representatives, to me and then true to his political training sought to make capital of it for himself and the American Jewish Congress by lying.” Having achieved the only victory that mattered to him—the face-saving gentlemen’s agreement by which Ford disavowed the libels—Marshall expected everybody else to surrender their formal legal interests.[58]

Marshall’s consistent aim in his political work was to advance the assimilationist goals of elite American Jews. The apology he wrote sent the message to other Americans that Jews intended to claim full membership in the community of citizens, that Jews belonged to America, and that Jews made the United States a better nation. For the goal of full membership to be met, the legal interests of the libel plaintiffs had to be sacrificed. Marshall knowingly chose that sacrifice. The apology was meant to signal that the price of accepting Jews into mainstream society was lower than most people feared. Using Ford as his mouthpiece, Marshall staked out his position; his willingness to let Ford’s cover story stand made it clear that his approach—and that of many elite Jews—was to avoid confrontation and embarrassment and instead to focus on “friendship and goodwill.”[59]

Marshall’s interest was the reputation, character, and future of the Jewish people, not the damage done to Aaron Sapiro or any other person. That interest led him to transform Sapiro’s case from a libel action into a negotiation in which he secured Ford’s disavowal of The International Jew. Marshall’s goal was to have Ford apologize publicly for his antisemitism and to restrain the ability of The International Jew, the pamphlet version of the articles, to monger hate. He sidestepped the questions of money damages for Sapiro or a personal apology from Ford to Sapiro. Marshall assumed the formal settlement of the case would see to those tasks; ironically, he then criticized Sapiro for accepting a settlement he thought inadequate.[60]

To Marshall, such issues as Sapiro’s right to a new trial and the credit for the apology due to others distracted attention from his foremost concern. In 1927 Marshall saw the Protocols as a grave danger to the future of the Jewish people because discrediting the book in 1921 had failed to stop its dissemination. The Dearborn Publishing Company printed half a million copies of The International Jew between 1922 and 1929. European and South American publishers churned out new editions of the pamphlets regularly during the 1930s and 1940s. The book became particularly popular in Germany after 1933. The continuing accessibility of the Protocols and The International Jew on the Internet feeds the apparently widespread psychological demand for ideological certainty in uncertain times and maintains their literary authority despite their repeated repudiation. The Protocols—and Ford’s endorsement of them—have validated every fear that Marshall expressed about them.[61]

The irony is that despite Marshall’s perspicacity, his efforts to destroy The International Jew came to nothing. Ford’s 1927 promise to do all he could to revoke permission for antisemitic publishers to continue printing the book proved empty. His lawyers wrote desultory letters protesting publication of the tract only as long as Marshall prodded them to do so. Marshall’s death in 1929 ended serious efforts by the Ford Motor Company to make good on Ford’s promise, which, unsecured by law, he and his lawyers thereafter disregarded. Ford’s strategy of evasion continued to be as effective as it had been in the Sapiro case. He hid behind subordinates who assumed responsibility for the injuries his newspaper inflicted, and, during the end game of the Sapiro case, he exploited the divisions among Jews to escape the authority of the legal process. Ford’s request that Marshall write his apology presented the lawyer with what he believed was the chance to rewrite the master narrative of American antisemitism, but Ford never lost control of the outcome.[62]

During the 1920s, Louis Marshall stood at the intersection of law, politics, and Jews’ fight for full inclusion. He knew that other Americans of European descent regarded Jews as racially inferior to themselves and, more critically, that Ford’s publication made the racialization of Jewish identity explicit and inseparable from the issue of Jews’ status as citizens. The AJC’s policy of not litigating antisemitic insults was predicated on the assumption that the best way for Jews to demonstrate their fitness for citizenship was to avoid the instrumental use of law to challenge antisemitic defamation; to do so was to attack freedom of expression, an integral aspect of constitutional democracy. In this view full acceptance would come only after Jews consistently demonstrated their allegiance to American liberal individualism, however poorly it protected group identity and group rights. No one has received greater credit than Marshall for walking the public tightrope that stretched between the conflicting principles of his activism and the constitutional ideals of citizenship he so revered. To recognize that he lost his balance in the Ford episode does not diminish his life of principled service; rather, it clarifies the nature of the obstacles he faced.[63]

Ford’s apology left intact the obstacles that stood between American Jews and a more secure equality. Antisemitism was not merely a matter of social relations; insofar as the state sanctioned racial prejudice and reinforced barriers to equality, it bore responsibility for the secondary status forced on Jews. Yet in the decades after Marshall’s death, the Jewish defense organizations remained unwilling to support legislation criminalizing group libel. This was not, however, as Evan Schultz has argued, because the Ford episode “showed that the courts would look upon group libel laws unfavorably.” The politics of antisemitism, the litigation strategies, and the out-of-court settlements that determined the outcome in the Ford libel cases deprived courts and juries of an opportunity to examine and rule on the issues that group libel raised. No better chance to weigh the competing interests of group rights and individual expression under the First Amendment arose during the 1920s. By believing, as Louis Marshall did, that “we are all American citizens, of equal rank, character and quality, equal in right and equal in duty and obligation,” American Jews expressed a broad faith in individual equality. Ironically, it was their fealty to an individualized conception of equal rights that came between them and a forward-looking remedy to the persistent problem of group defamation.[64]

Notes

Victoria Saker Woeste is senior research fellow, American Bar Foundation, Chicago, Illinois.
For assistance of all kinds, I gratefully acknowledge Ken Alder, the Honorable Avern Cohn, Barry Cushman, Marc Galanter, Bryant Garth, Sarah Barringer Gordon, Bonnie Honig, Laura Kalman, Richard S. Levy, Charles McCurdy, Betsy Mendelsohn, Robert O’Neil, Susan Radomsky, Leo Ribuffo, Norman Rosenberg, Joyce Sterling, Christopher Tomlins, Julian Webb, Mary Buck Young, Henry Yu, and Gary Zola. Joanne Meyerowitz, David Nord, and the production staff at the JAH exemplified professionalism at every turn. Frederic Cople Jaher, Michael E. Staub, and two other JAH reviewers supplied generous and helpful criticism. Members of the Sapiro and Gallagher families, particularly Linda Sapiro Moon, Gail Nebenzahl, Patricia Gallagher Wooten, and Connie Bookmyer, shared stories and memorabilia with me. The research was generously supported by the American Bar Foundation and fellowships from the Princeton University Library and the Jacob Rader Marcus Center of the American Jewish Archives.
Readers may contact Woeste at <[email protected]>.

1 Henry Ford statement, June 30, 1927, Small Collections 3515 (Jacob Rader Marcus Center, American Jewish Archives, Cincinnati, Ohio). See also New York Times, July 8, 1927, p. 1; and Charles Reznikoff, ed., Louis Marshall: Champion of Liberty: Selected Papers and Addresses (2 vols., Philadelphia, 1957), I, 376–79. Many Judaic scholars argue that the term antisemitism is linguistically and historically misleading. I use the term as it is commonly understood, as a description of acts and words that convey hatred of Jews. I follow those who prefer the unhypenated, uncapitalized word form, although it only imperfectly resolves the semantic problem of grouping all Semitic peoples under the term “anti-Semitism.” See David A. Gerber, “Anti-Semitism and Jewish-Gentile Relations in American Historiography and the American Past,” in Anti-Semitism in American History, ed. David A. Gerber (Urbana, 1986), 3–54, esp. 3n1.

2 On tribalism in the 1920s, see John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (New Brunswick, 1955). On postwar antisemitism, see Leonard Dinnerstein, Antisemitism in America (New York, 1994); and Nathan C. Belth, A Promise to Keep: A Narrative of the American Encounter with Anti-Semitism (New York, 1979), 58–114. On Jews as the “white other,” see Matthew Frye Jacobson, Whiteness of Another Color: European Immigrants and the Alchemy of Race (Cambridge, Mass., 1998), 52–90. For Henry Ford’s public statements about the Independent, see New York Times, Dec. 5, 1921, p. 33.

3 On Jewish civil rights activism, see David Levering Lewis, “Parallels and Divergences: Assimilationist Strategies of Afro-American and Jewish Elites from 1910 to the Early 1930s,” Journal of American History, 71 (Dec. 1984), 543–64.

4 David L. Lewis, The Public Image of Henry Ford: An American Folk Hero and His Company (Detroit, 1976), 145; Albert Lee, Henry Ford and the Jews (New York, 1980), 78; Carol W. Gelderman, Henry Ford: The Wayward Capitalist (New York, 1981), 233. Some biographers of Ford seem unaware that Louis Marshall wrote the apology. See, for example, Rudolph Alvarado and Sonya Alvarado, Drawing Conclusions on Henry Ford (Ann Arbor, 2001), 151–60; Belth, Promise to Keep, 81–83; and Allan Nevins and Frank Ernest Hill, Ford: Expansion and Challenge, 1915–1933 (New York, 1957), 320. For the assertion, unsupported by evidence, that Marshall could not have written the apology, see Max Wallace, The American Axis: Henry Ford, Charles Lindbergh, and the Rise of the Third Reich (New York, 2003), 33n24.

5 Gerber, “Anti-Semitism and Jewish-Gentile Relations in American Historiography,” 8–10, 30. See also John Higham, Send These to Me: Immigrants in Urban America (Baltimore, 1984); Howard M. Sachar, A History of the Jews in America (New York, 1992); Dinnerstein, Antisemitism in America; and Leo P. Ribuffo, “Henry Ford and The International Jew,”American Jewish History, 69 (June 1980), 437–77.

6 Celebratory biographies include Samuel Simpson Marquis, Henry Ford: An Interpretation (Boston, 1923); and Nevins and Hill, Ford. The books were commissioned by Ford and the Ford Motor Company, respectively. More critical treatments include Keith Sward, The Legend of Henry Ford (New York, 1948); Anne Jardim, The First Henry Ford: A Study in Personality and Business Leadership (Cambridge, Mass., 1970); Gelderman, Henry Ford; Peter Collier and David Horowitz, The Fords: An American Epic (New York, 1987); Lee, Henry Ford and the Jews; and Douglas Brinkley, Wheels for the World: Henry Ford, His Company, and a Century of Progress, 1903–2003 (New York, 2003). Those writers attribute Ford’s antisemitism to his coming of age during the Populist era. One writer traces it to his early exposure to William Holmes McGuffey’s Eclectic Readers. See Neil Baldwin, Henry Ford and the Jews: The Mass Production of Hate (New York, 2001), 2–7. For the argument that antisemitism was not the driving force behind Populism and that it is misguided to associate Ford’s hysterical suspicion of bankers and financiers with Populism’s broader political crusade, see Arthur Liebman, “Anti-Semitism in the Left?,” in Anti-Semitism in American History, ed. Gerber, 329–59, esp. 336–37. The most sophisticated assessment of Ford’s antisemitism locates him in early twentieth-century Protestant religious Fundamentalism and political conservatism. See Ribuffo, “Henry Ford and The International Jew.”

7 The U.S. Supreme Court case upheld an Illinois statute criminalizing group libel in a dispute involving African Americans; see Beauharnais v. Illinois, 343 U.S. 250 (1952). On the legal theory of group rights, see Cass R. Sunstein, Democracy and the Problem of Free Speech (New York, 1993), 185; and Evan P. Schultz, “Group Rights, American Jews, and the Failure of Group Libel Laws, 1913–1952,” Brooklyn Law Review, 66 (Spring 2000), 71–145. The Supreme Court reopened the group libel debate during the 1990s in mixed rulings on campus hate speech codes, bans on pornography, and cross burning. See R.A.V. v. St. Paul, 505 U.S. 377 (1992); Virginia v. Black, 538 U.S. 343 (2003); Nicholas Wolfson, Hate Speech, Sex Speech, Free Speech (Westport, 1997); and Samuel Walker, Hate Speech: The History of an American Controversy (Lincoln, 1994), 127–58. Evan P. Schultz is the only legal scholar to link the Sapiro libel case to defamation and group libel law in the 1920s, but he argues that the case demonstrated the flaws of the early approach. See Schultz, “Group Rights, American Jews, and the Failure of Group Libel Laws,” 99–112.

8 Louis Marshall was the acknowledged leader of Jewish civil rights activism; as a member of the board of the National Association for the Advancement of Colored People (NAACP), he litigated many of the benchmark civil rights cases of his generation. Morton Rosenstock, Louis Marshall: Defender of Jewish Rights (Detroit, 1965), 71–97; Gregg Ivers, To Build a Wall: American Jews and the Separation of Church and State (Charlottesville, 1995), 40–41.

9 On Zionism, see Melvin I. Urofsky, American Zionism from Herzl to the Holocaust (Garden City, 1974); Naomi W. Cohen, The Americanization of Zionism, 1897–1948 (Hanover, 2003); and Rafael Medoff, “Felix War-burg and the Palestinian Arabs: A Reassessment,” American Jewish Archives Journal, 54 (no. 1, 2002), 11–38. On postwar immigration, see Mai M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, 2003), 21–55.

10 Ford Motor Company circular letter, date redacted [c. 1922–1923], file 5, box 138, Louis Marshall Papers (Marcus Center); Jardim, First Henry Ford, 139–40; Gelderman, Henry Ford, 218–20; Lewis, Public Image of Henry Ford, 140.

11 Lewis, Public Image of Henry Ford, 135–41; Collier and Horowitz, Fords, 79–83; Jardim, First Henry Ford, 137–47; Sachar, History of the Jews in America, 310–15, esp. 315.

12 Dearborn Independent, May 22, 1920, p. 1; Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (New York, 1994), 37; Fred L. Black, trial testimony, March 24, 1927, Transcript of Proceedings, Sapiro v. Ford, p. 997, file 4, box 43, Accession 48: Aaron Sapiro Case (Benson Ford Research Center, The Henry Ford, Dearborn, Mich.). On the demonization of Jewish participation in state building and public governance in Europe and the United States, see Benjamin Ginsberg, The Fatal Embrace: Jews and the State (Chicago, 1993); and Sander L. Gilman, Difference and Pathology: Stereotypes of Sexuality, Race, and Madness (Ithaca, 1985).

13 Nevins and Hill, Ford, 312, 314; Jardim, First Henry Ford, 143–46; Herman Bernstein, The History of a Lie: “The Protocols of the Wise Men of Zion”; A Study (New York, 1921), 3–15; Richard S. Levy, “Introduction,” in A Lie and a Libel: The History of the Protocols of the Elders of Zion, by Binjamin W. Segel, ed. and trans. Richard S. Levy (Lincoln, 1995), 14–17, 55–56.

14 Higham, Strangers in the Land, 270.

15 Dinnerstein, Antisemitism in America, 59, 60–61, 73–77; Ivers, To Build a Wall, 37; Naomi W. Cohen, Not Free to Desist: The American Jewish Committee, 1906–1966 (Philadelphia, 1972); Judith S. Goldstein, The Politics of Ethnic Pressure: The American Jewish Committee Fight against Immigration Restriction, 1907–1917 (New York, 1990), 9–10. On the Ford Motor Company’s “Americanization” programs in the Progressive Era, see Higham, Strangers in the Land, 247–48, 262–63.

16 Louis Wolsey to Leo M. Franklin, June 4, 1920, file 4, box 4, Temple Mss./Congregation Temple Beth El Correspondence, Leo M. Franklin Papers (Rabbi Leo M. Franklin Archives, Temple Beth El, Bloomfield Hills, Mich.); Martin Zielonka to Franklin, June 6, 1920, ibid.; David Philipson to Franklin, June 8, 1920, ibid.; Lewis, “Parallels and Divergences,” 543–44. On regional divisions among Jewish leaders, see ibid., 549–50; and Michael A. Meyer, Hebrew Union College–Jewish Institute of Religion: A Centennial History, 1875–1975 (Cincinnati, 1992), 31, 51, 53–54.

17 Robert A. Rockaway, The Jews of Detroit: From the Beginning, 1762–1914 (Detroit, 1986), 140; Louis Marshall to Henry Ford, telegram, June 3, 1920, file 5, box 4, Marshall Papers; Franklin to Marshall, June 4, 1920, file 1, box 4, Franklin Papers; Marshall to Franklin, June 7, 1920, file 5, box 4, Marshall Papers.

18 Marshall to Franklin, June 7, 1920, file 1, box 4, Franklin Papers; Marshall to Ford, June 3, 1920, file 5, box 4, Marshall Papers.

19 Meyer, Hebrew Union College, 53–54; Marshall to Julius Rosenwald, July 22, 1927, in Louis Marshall, ed. Reznikoff, I, 381–82; Judson C. Welliver to Marshall, Sept. 12, 1923, ibid., 364; Lewis, Public Image of Henry Ford, 141.

20 Dearborn Publishing Company to Marshall, telegram, June 5, 1920, file 5, box 4, Marshall Papers; Marshall to Dearborn Publishing Company, telegram, June 5, 1920, ibid.; Max J. Kohler to Simon Wolf, June 10, 1920, file 4, box 4, Franklin Papers; Marshall to Fred Butzel, Sept. 20, 1920, file 5, box 4, Marshall Papers.

21 Marshall to Ford, June 3, 1920, file 5, box 4, Marshall Papers; David Rabban, Free Speech in Its Forgotten Years (New York, 1997), 1–9; David Riesman, “Democracy and Defamation: Control of Group Libel,” Columbia Law Review, 42 (May 1942), 727–80. Despite David Riesman’s call for broad restrictions on “offensive racial and religious speech,” group libel laws have never furnished the basis for a widespread movement against discriminatory or defamatory publications. Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (Chapel Hill, 1986), 230, 245n18; Walker, Hate Speech, 79.

22 Act of April 11, 1913, ch. 265, sec. 40, 1913 N.Y. Laws 481; Schultz, “Group Rights, American Jews, and the Failure of Group Libel Laws,” 96; Dinnerstein, Antisemitism in America, 73–74; Belth, Promise to Keep, 23–26. The New York group libel law was easily circumvented by the use of code words to signal a selective clientele and thus may not have effectively banned “public insults.” Schultz, “Group Rights, American Jews, and the Failure of Group Libel Laws,” 90–100, esp. 99.

23 Cyrus Adler to Jacob Schiff, June 15, 1920, file 1, box 55, Marshall Papers; Minutes of the Executive Committee, American Jewish Committee, June 23, 1920, file 5, ibid.; Marshall to David Brown, July 30, 1920, file 5, box 4, ibid.

24 Marshall to Butzel, Sept. 20, 1920, file 5, box 4, ibid.; Minutes of the Executive Committee, American Jewish Committee, Oct. 15, 1920, file 5, box 55, ibid.; Dinnerstein, Antisemitism in America, 102; Minutes of the Executive Committee, American Jewish Committee, Dec. 12, 1920, file 5, box 55, Marshall Papers; Louis Marshall, “The ‘Protocols,’ Bolshevism, and the Jews,” in Louis Marshall, ed. Reznikoff, I, 343–50.

25 Dinnerstein, Antisemitism in America, 104 (quoting Rosenstock, Louis Marshall, 277); Dearborn Independent, Nov. 26, 1921, pp. 8–9.

26 New York Times, March 20, 1921, sec. 1, p. 5; ibid., March 24, 1921, p. 10; ibid., March 25, 1921, p. 25; ibid., March 27, 1921, sec. 1, p. 4; Dearborn Publishing Co. v. Fitzgerald, 271 F. 479 (N.D. Ohio 1921).

27 Minutes of the Executive Committee, American Jewish Committee, Dec. 12, 1920, file 5, box 55, Marshall Papers; Bernstein, History of a Lie, 3–4; Herman Bernstein, The Truth about “The Protocols of Zion”: A Complete Exposure (New York, 1935), xiii; Herman Bernstein to Marshall, Feb. 4, April 4, 1921, file 5, box 60, Marshall Papers; Allan L. Benson, interview with Henry Ford, Jan. 5, 1922, file 413, box 14, Herman Bernstein Papers (YIVO Institute for Jewish Research, New York, N.Y.); Marshall to Bernstein, Jan. 14, 1922, ibid.; Bernstein to Marshall, Jan. 12, April 22, 1922, file 5, box 63, Marshall Papers; “Statement by Herman Bernstein In Answer to Henry Ford’s Accusation,” [Jan. 1922], ibid.

28 Marshall to Bernstein, Jan. 14, 1922, file 413, box 14, Bernstein Papers; Marshall to Bernstein, July 8, 1923, file 332, box 11, ibid. Samuel Untermyer won a court order freezing $115,000 of Ford’s money in a New York investment bank, but the attachment failed to secure Ford’s appearance in the New York courts and was vacated in 1924. Attachment Order, Bernstein v. Ford, Aug. 30, 1923, file 413, box 14, ibid.; New York Times, Feb. 24, 1924, sec. 2, p. 14; Nevins and Hill, Ford, 315.

29 Marshall to Warren G. Harding, July 25, 1921, in Louis Marshall, ed. Reznikoff, I, 361–64, esp. 363; Schultz, “Group Rights, American Jews, and the Failure of Group Libel Laws,” 100–112; Walker, Hate Speech, 19–21. Ford apparently ended the series to bolster his prospects in the 1924 presidential campaign, which then became embroiled in his bid to purchase the government’s nitrate plant at Muscle Shoals, Alabama. Ford withdrew from the race after President Calvin Coolidge promised to support his Muscle Shoals offer, which he retracted after Congress criticized it as insultingly low. Lee, Henry Ford and the Jews, 43–44, 67–68.

30 Lee, Henry Ford and the Jews, 14, 70; Jardim, First Henry Ford, 144–45; Nevins and Hill, Ford, 316; The International Jew: The World’s Foremost Problem (4 vols., Detroit, 1920–22); Bernstein, History of a Lie; New York Times, Nov. 13, 1922, p. 11.

31 Higham, Strangers in the Land, 264; Nancy MacLean, Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan (New York, 1994), 23–51; Declaration, April 22, 1925, Sapiro v. Ford, case No. 7522, Records of the U.S. District Court, Eastern District of Michigan, RG 21 (National Archives, Chicago, Ill.); also in file 1, box 33, Accession 48: Sapiro Case.

32 The system of monopolizing marketing that Aaron Sapiro promoted did not enable cooperatives to restrict production, and the surpluses of the 1920s proved catastrophic. Many farmers blamed Sapiro for their losses. Victoria Saker Woeste, The Farmer’s Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865–1945 (Chapel Hill, 1998), 196–202.

33 Dearborn Independent, April 12, 1924, p. 4; ibid., April 19, 1924, pp. 4–5; ibid., July 19, 1924, p. 14; ibid., Aug. 16, 1924, p. 5; ibid., April 19, 1924, pp. 4–5. In one of the lionizing biographies he commissioned, Ford claimed he supported agricultural cooperation in principle but criticized Sapiro-style cooperation as unnecessary in a free market. Henry Ford with Samuel Crowther, Today and Tomorrow (Garden City, 1926), 220–22.

34 Walton Peteet to Ernest Liebold, April 26, 1924, file 7, box 122, Accession 1: Henry and Clara Ford Personal Papers (Benson Ford Research Center); A. C. Cherry to Dearborn Independent, Aug. 21, 1924, ibid.; Cherry to Ford, Aug. 21, 1924, ibid.; Aaron Sapiro, “Demand for Retraction,” Jan. 6, 1925, file 6, ibid.; Lee, Henry Ford and the Jews, 71.

35 [Clifford B. Longley], “What We Can Prove,” memo, n.d., file 2, box 1, Accession 48: Sapiro Case; Sapiro, “Demand for Retraction,” 15, 20, 22–28, 31–32; Harry H. Bennett, We Never Called Him Henry (New York, 1951), 49. On the requirements for winning damages under libel law in the 1920s, see “Direct Proof of General Damage by Defamation,” New York Law Review, 2 (Aug. 1924), 305–16; and William G. Hale, Law of the Press: Text, Statutes, and Cases (St. Paul, 1923).

36 Owensboro Messenger, Jan. 8, 1925, clipping, file 2, box 32, Accession 48: Sapiro Case; Sapiro, “Demand for Retraction,” 7. The demand did not avoid mentioning the paper’s racism and antisemitism, referring to Ford as a “malicious bigot,” but its primary purpose was to refute the attacks on Sapiro’s professional integrity. See ibid., 8.

37 Aaron Sapiro was able to sue in federal court because the Constitution granted that right to a citizen of one state who sued a citizen of another. See U.S. Const. art. III, sec. 2. Philadelphia Jewish Times, Jan. 20, 1928, clipping, file 2, box 155, Marshall Papers; Aaron Sapiro, “An Experience with American Justice,” Free Synagogue Pulpit, 8 (no. 5, 1927–1928), 11–12; Brown to Bernstein, April 27, 1922, file 413, box 14, Bernstein Papers; Bennett, We Never Called Him Henry, 49; Detroit News, Feb. 23, 1964, clippings file, William Henry Gallagher Papers (privately held, Battle Creek, Mich.); Marshall to Bernstein, July 8, 1923, file 332, box 11, Bernstein Papers.

38 James A. Reed to Clifford B. Longley, Jan. 2, 1926, file 6, box 122, Accession 1: Ford Personal Papers; Reed case notes, [early 1926], file 1, box 34, James A. Reed Papers (Western History Center, University of Missouri, Kansas City); Aaron Sapiro to Lewis Strauss, July 18, 1927, file 5, box 70, Lewis Lichtenstein Strauss Papers (American Jewish Historical Society, New York, N.Y.). On the recusal of Judge Arthur Tuttle, whom Reed accused of bias when Tuttle ordered Ford to pay Sapiro’s pretrial expenses, see “Petition Alleging the Disqualification of Honorable Arthur J. Tuttle,” July 28, 1926, Sapiro v. Ford, file 7522, box 28, Arthur Tuttle Papers (Bentley Historical Library, Ann Arbor, Mich.); Entry, Aug. 9, 1926, Sapiro v. Ford, ibid.; William Henry Gallagher, affidavit, [March 1927], file 1, box 1, Accession 48: Sapiro Case.

39 James A. Reed, opening statement, Transcript of Proceedings, Sapiro v. Ford, 155, file 3, box 43, Accession 48: Sapiro Case; Preliminary Motions on Pleadings, Feb. 28, 1927, ibid., 107–19, 128; “The Jews Try Ford!,” New York Evening Graphic, [March 1927], clippings file, Gallagher Papers.

40 Transcript of Proceedings, Sapiro v. Ford, 12–13, 15, 28. Everyone writing about the Sapiro case has assumed it was a group libel action from the outset, and the distinction between ordinary libel and group libel has eluded historians writing about the case. See Ribuffo, “Henry Ford and The International Jew,” 465. For echoes of Ribuffo’s interpretation, see Dinnerstein, Antisemitism in America, 102; Sachar, History of the Jews in America, 317; and Baldwin, Henry Ford and the Jews, 211.

41 New York Daily Mirror, March 17, 1927, p. 1, clippings file, Gallagher Papers; New York Times, March 17, 1927, p. 1; Transcript of Proceedings, Sapiro v. Ford, 37–48. The Michigan legislature had considered a group libel statute in 1921, as Ford was winning injunctions to force resumption of street sales of the Independent, but the bill failed to pass the upper house when opponents charged that by its terms anyone could be prosecuted for publishing excerpts from the Bible. New York Times, April 13, 1921, p. 19; ibid., April 22, 1921, p. 19; ibid., April 30, 1921, p. 4.

42 Transcript of Proceedings, Sapiro v. Ford, 338–44, 378–91, 489–90, 15, 993; Sachar, History of the Jews in America, 317–18. Harry Dunn, a free-lance writer, used the pseudonym Robert Morgan.

43 Sapiro, “Experience with American Justice,” 20.

44 Transcript of Proceedings, Sapiro v. Ford, 1282–1624, 2786, 2792–2928, 1166–67, 1625–3044; New York Times, April 19, 1927, p. 12.

45 Longley to Liebold, Sept. 22, 1926, file 6, box 122, Accession 1: Ford Personal Papers; Longley to U.S. District Court, Sept. 11, 1926, ibid.; New York Times, March 31, 1927, p. 1; ibid., April 1, 1927, p. 1.

46 Transcript of Proceedings, Sapiro v. Ford, 3038, 3041–44, 3090–98; Detroit Times, April 19, 1927, p. 1; ibid., April 22, 1927, pp. 1–2; New York Times, April 22, 1927, p. 1. The products of the investigation into the jury-tampering charges are in Henry Ford’s Federal Bureau of Investigation file. See, for example, “Affidavit, Hilton Johnson,” April 29, 1927, in U.S. Department of Justice, Freedom of Information Act < http://foia.fbi.gov/ford/ ford1a.pdf >, p. 79 (Oct. 15, 2002).

47 New York Times, July 8, 1927, p. 1; ibid., July 11, 1927, p. 8; ibid., July 12, 1927, p. 12; ibid., July 14, 1927, p. 26; Marshall to Butzel, June 27, 1927, file 7, box 1599, Marshall Papers; Marshall to Nathan Perlman, July 18, 1927, file 8, ibid.; Marshall to Arthur Brisbane, July 19, 1927, ibid.; Perlman to Marshall, July 27, 1927, file 2, box 155, ibid.; Bennett, We Never Called Him Henry, 56.

48 Henry Ford, statement, June 30, 1927, Small Collections 3515 (Marcus Center).

49 Marshall to Rosenwald, July 22, 1927, in Louis Marshall, ed. Reznikoff, I, 382; Nation, July 20, 1927, clipping, file 2, box 155, Marshall Papers; “In the Henry Ford Manner,” Life, July 28, 1927, p. 10; Billy Rose, “Since Henry Ford Apologized to Me,” [1927], performed by the Happiness Boys, [1927], From Avenue A to the Great White Way: Yiddish and American Folk Songs, 1914–1950 (compact disk; Sony Music Entertainment, W.144561-2; 2002); Detroit Jewish Chronicle, July 22, 1927, p. 8.

50 Detroit Jewish Chronicle, July 15, 1927, p. 1; Chicago Daily Tribune, July 9, 1927, p. 4; New York Times, July 8, 1927, p. 1; ibid., July 9, 1927, p. 1.

51 Sapiro to Strauss, June 29, 1927, file 5, box 70, Strauss Papers.

52 Samuel Untermyer to Marshall, July 3, 1927, Small Collections 3516 (Marcus Center).

53 Marshall to Untermyer, July 4, 1927, in Louis Marshall, ed. Reznikoff, I, 376; Untermyer to Marshall, July 4, 5, 1927, Small Collections 3516 (Marcus Center).

54 Henry Ford’s Retraction and Apology to the Jews (New York, [1927]), American Jewish Committee pamphlet, file 413A, box 14, Bernstein Papers; Rosenstock, Louis Marshall, 26.

55 Sapiro to Louis D. Gross, July 15, 1927, file 5, box 70, Strauss Papers; Sapiro to Strauss, July 18, 1927, ibid.; Sapiro, “Experience with American Justice,” 36; “Aaron Sapiro v. Henry Ford,” n.d., Sapiro Miscellaneous file, Small Collections 10835 (Marcus Center); Aaron Sapiro, “A Retrospective View of the Aaron Sapiro–Henry Ford Case,” Western States Jewish Historical Quarterly, 15 (Oct. 1982), 79–84; Marshall to Harry Schneiderman, Dec. 20, 1927, file 13, box 1599, Marshall Papers.

56 Marshall to Rosenwald, July 22, 1927, in Louis Marshall, ed. Reznikoff, I, 381; Marshall to Untermyer, July 1, 1927, ibid., 375. For an assessment of Marshall’s accustomed autonomy as the foremost Jewish activist of the time, see Jerold S. Auerbach, Rabbis and Lawyers: The Journey from Torah to Constitution (Bloomington, 1993), 94.

57 Marshall to Rosenwald, July 22, 1927, file 8, box 1599, Marshall Papers; motion, Bernstein v. Ford, file 413, box 14, Bernstein Papers; Martindale’s American Law Directory, 1925, p. 1214; ibid., 1927, p. 1287; ibid., 1928, p. 1364; ibid., 1929, p. 1405; ibid., 1930, p. 1347; Bernstein to Adler, [1933–1934], file 623, box 24, Bernstein Papers; Bernstein to Brown, Oct. 17, 1933, file 627, ibid. Though Marshall is sometimes compared to Louis Brandeis, who often acted as “counsel for the situation,” the comparison seems inapt in this case. Marshall compromised the valid interests of too many people to fulfill Brandeis’s ideal of representing the interests of justice in complex situations. See Clyde Spillenger, “Elusive Advocate: Reconsidering Brandeis as People’s Lawyer,” Yale Law Journal, 105 (April 1996), 1445–1535.

58 Marshall to Perlman, July 18, 1927, file 13, box 1599, Marshall Papers; Marshall to Isaac W. Frank, July 11, 1927, file 8, ibid.; Jacob Billikopf to Marshall, July 11, 1927, file 2, box 75, Bernstein Papers; Marshall to Franklin, July 31, 1927, file 4, box 14, Franklin Papers; Franklin to Marshall, Aug. 4, 1927, ibid.; Marshall to Rosenwald, July 22, 1927, file 8, box 1599, Marshall Papers.

59 Marshall to Rosenwald, July 22, 1927, file 8, box 1599, Marshall Papers; Samuel Fisher to Marshall, July 13, 1927, file 6, box 75, ibid.

60 Marshall to Strauss, July 22, 1927, file 11, box 68, Strauss Papers.

61 Levy, “Introduction,” 4–6, 35, 37; Segel, Lie and a Libel, ed. and trans. Levy, 63; Claire Spark, “Hitchens, Trachtenberg, and the Melting-Pot,” online posting, Sept. 1, 2002, H-Antisemitism discussion list < http://www.h-net.org/~antis/ > (Sept. 1, 2002); David I. Kirtzer, “The Modern Use of Ancient Lies,” New York Times, May 9, 2002, sec. A, p. 39, available online at New York Times Article Archive.

62 Marshall to Frank Campsall, Jan. 23, 1928, file 5, box 4, Marshall Papers; Marshall to Longley, April 3, 1928, file 14, box 122, Accession 1: Ford Personal Papers. On the relationship between Marshall and Ford’s staff after the apology, see, for example, Marshall to Ford, Oct. 14, 1927, file 13, ibid.; Campsall to Marshall, Jan. 5, 1928, ibid.; and Marshall to Longley, April 3, 1928, ibid.

63 Jerold Auerbach argues that Marshall accomplished the difficult feat of remaining Jewish while becoming American, but his celebratory treatment is tempered by the observation that Marshall “never eluded the tension between American nationality and Jewish particularity.” Auerbach, Rabbis and Lawyers, 113–14.

64 Schultz, “Group Rights, American Jews, and the Failure of Group Libel Laws,” 144; Marshall to the editor, New York Times, Jan. 17, 1916, in Louis Marshall, ed. Reznikoff, I, 275.

 

 

 

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