On March 15, 1927, the civil trial between Aaron Sapiro, a leading Jewish American activist, and Henry Ford, America’s legendary industrialist, officially began. The trial concerned a libel lawsuit Sapiro had filed against Ford’s newspaper, The Dearborn Independent. The newspaper, Sapiro claimed, had made false accusations against him while covering his cooperative farming movement in California. The next morning, the New York Times summarized the accusations: “Mr. Sapiro was accused in the articles of being a cheat, a faker and a fraud, and there were animadversions against the Jewish people.” Though Sapiro took issue with both the attacks made against himself and his religion, the court refused to entertain any discussion of anti-Semitism. About a month after it began, the case concluded in a mistrial, and a new trial was set for that September. But it never came. Louis Marshall, a leading Jewish American lawyer, engineered the conclusion to Sapiro vs. Ford by persuading Ford to publicly apologize for his anti-Semitism.
During the 1927 episode, Ford, who had felt uneasy about his chances in court and manufactured the mistrial through devious means, realized that a second trial would further damage his reputation (Woeste “Suing Henry Ford”). To avoid further embarrassment, Ford reached out to Louis Marshall for help. Marshall realized that if Ford took steps to redress past hateful actions, Sapiro would settle to save him the headache of more time in court. After their negotiations, Marshall convinced Ford to agree to his terms, which included a full recantation of charges against Jews, coupled with a public apology written by Marshall and signed by Ford (Rosenstock 190). Within two weeks of Ford’s public apology in early July, Sapiro announced his settlement with Ford, as Marshall had planned (“Ford and Sapiro Settle Libel Suit").
Historian Victoria Woeste, the most prominent scholar on the case, considers Marshall’s decision to resolve the dispute using extra legal means a lost opportunity. Woeste, the only author of a book on Sapiro vs. Ford, writes, “Marshall unwittingly ensured that his ultimate goal—withdrawing hateful speech from the marketplace of ideas—would not be attainted” (Woeste 9). Woeste contrasts her viewpoint with other historians, who consider Marshall’s stratagem a momentous accomplishment. According to Woeste, these historians point to the sincerity of Ford’s remorse as the marker of Marshall’s triumph (Woeste 9). A close review of the case, however, suggests neither conclusion appropriate. Marshall’s gambit was the most effective option available for fighting anti-Semitism and hate speech in America. But this was not because he convinced Ford to provide a genuine apology, as many historians believe. Louis Marshall transformed what would have been an inconsequential verdict in a libel case into a resolution with much broader implications. Based on press coverage and the public’s reactions, Marshall’s success stemmed from his pragmatic decision to use extra legal means. Marshall curbed the most famous, affluent, and active American anti-Semite of his century, while helping Americans understand that hate speech could and should be held accountable.
Though Ford’s Dearborn Independent attacked Aaron Sapiro because he was Jewish, mention of Sapiro’s religion never entered the courtroom, and therefore a legal verdict would have been inconsequential. In his opening statement on behalf of Ford, U.S. Senator James Reed, “announced,” according to the Chicago Tribune on March 17, “that no race could be libeled.” “He denied that the Jewish people were on trial here,” the Tribune continued, “and said that only Aaron Sapiro figured in the litigation.” Once testimony began, Judge Fred Raymond agreed with Reed. An article from the New York Times on March 26 titled “Defense Lawyers Again Succeed in Keeping Out Ford’s Views on Jews in General” detailed an instance in which Judge Raymond excluded “the Jewish question” despite the best attempts of Sapiro’s legal team to bring religion into the courtroom. When William Gallagher, Sapiro’s chief counsel, asked newspaperman James Miller about a conversation with Ford, Miller responded, “He said he was going to expose [the Jews]…and upset their apple cart.” Gallagher then asked him about “Mr. Ford’s views on Jews as a race.” Upholding Reed’s objection to this question, Judge Raymond explained that Mr. Gallagher “could not question the witness on Mr. Ford’s views on Jews” and that “the automobile maker’s views on the race or religion” were not admissible.
In anticipation of Henry Ford’s day on the witness stand, the New York Times further revealed that Judge Raymond had made his message clear: Sapiro vs. Ford was to be adjudicated as a dispute between two men over what one had said about the other. “Mr. Gallagher,” the Times wrote, “appears to be barred from asking Mr. Ford to expound his views on the Jewish race generally.” The Times continued that “under previous rulings by the Court,” Ford could only be asked about “his attitude on Mr. Sapiro and the others of his coreligionists who were actually identified in the [Dearborn Independent]” (“Ford and Sapiro Testify”). Since the press clearly understood that Judge Raymond precluded anti-Semitism from entering the trial and that the jurors were not to make their decision based on Ford’s religious views, it is only reasonable to conclude that the public held the same understanding. Indeed, the press was the only source of information about the trial for virtually all Americans. As far as the country was concerned, the verdict would be limited to one man’s victory over the other. Though the jury never had a chance to reach this verdict, we can conclude that the public would have interpreted a decision in Sapiro’s favor only as an official affirmation that Ford’s newspaper had sought to defame the Jewish activist.
We must acknowledge that because Judaism entered the court in a limited capacity, whether it was during jury selection or during the trial before Judge Raymond could keep it out, Ford’s anti-Semitism entered the minds of the jury and the public. A headline from the New York Times read “Plaintiff Rejects Ex-Klansman and Defense Declines to Accept Two Jews.” The article went on to report that Judge Raymond asked the jurors, “Are any of you, by blood or by marriage, connected with the Jewish race?” and that Gallagher asked them if they “belong to the organization known as the Klu Klux Klan” during the voir dire process. Given such a thorough attempt to excuse jurors who either had a tendency in favor or against anti-Semitism, the jurors who heard the trial surely knew that Ford was anti-Semitic and that Ford’s anti-Semitism led him to make false accusations against Sapiro. Given the press’ coverage of how Jews and anti-Semites were kept out of the jury and how Judge Raymond had prevented Judaism from entering the courtroom, the public must have also known that Ford’s anti-Semitism led him to make false accusations against Sapiro.
But even if the jurors and the public knew about Ford’s religious views, we cannot say that a verdict against Ford would have been a verdict against anti-Semitism. First off, without the interviews of the jurors we must assume that they would have based their decision on Judge Raymond’s instructions to exclude religion from consideration. More importantly, had the jurors made the unlikely choice to disregard Judge Raymond’s explicit jury instructions, ruling against Ford because they thought he had attacked all Jews, the public would have had no idea. The newspapers informed them that the jurors would be disregarding religion. Even if the jurors ignored their legal duties, the public would have had no reason to suspect them of the offense.
Having established that a courtroom victory for Sapiro would not have translated to a victory for advocates of tolerance in either the eyes of the law or the public, we begin to see why Louis Marshall’s maneuver had more significant implications than a jury’s verdict ever could have brought about. Most notably, Marshall convinced Ford to recant all anti-Semitic articles the Dearborn Independent published and release an apology to the press. To ensure the apology’s completeness, Marshall wrote it himself in the guise of Ford. “The Dearborn Independent,” ‘Ford’ declared, “will be conducted under such auspices that articles reflecting upon the Jews will never again appear in its columns.” Adopting a regretful tone, ‘Ford’ continued, “The character of the charges and insinuations made against the Jews…justifies the righteous indignation entertained by Jews everywhere toward me because of the mental anguish occasioned by the unprovoked reflections made upon them.” Towards the end of the apology, ‘Ford’ concluded with a repudiation of not just anti-Semitism, but all hate speech: “It is wrong…to judge a people by a few individuals and I therefore join in condemning unreservedly all wholesale denunciations and attacks” (qtd. in “Ford Apologizes”).
A plausible counterargument to the value in Marshall’s maneuver holds that since Ford’s apology was not sincere, it was not effective. The reaction to Ford’s apology, especially from the Jewish community, disproves such an argument . The persuasiveness of Marshall’s writing and the promise of its authenticity led the public to believe the statement in its entirety. “Ford’s” last sentence delivered a final blow to any skeptics: “Finally, let me add that this statement is made on my own initiative and wholly in the interest of right and justice and in accordance with what I regard as my solemn duty as a man and as a citizen” (qtd. in “Ford Apologizes”). Press coverage demonstrated that newspaper editors also believed in Ford’s sincerity, passing on their approval to the public. In a July 9 article titled “Jewish Leaders Glad to Accept Ford’s Apology,” the Atlanta Constitution reported, “Ford’s sudden and unexpected retraction of all the anti-Jewish articles that have appeared in The Dearborn Independent, his weekly magazine, brought words of praise from all sides.” The same day, the New York Herald Tribune conveyed similar sentiments: “Jewry was pleased today with Henry Ford’s retraction of the insults, charges and indignities which he had heaped on Jews of the world in the last seven of more years.” The Herald Tribune went on to detail the reactions of leading Jews, such as Judge Harry Fisher, who declared, “In making his retraction, Henry Ford shows himself to be a man of real character.” Those who did criticize Ford’s apology only did so because they believed it had come too late. Also speaking to the Herald Tribune, Chicago businessman Julius Rosenwald commented, “Mr. Ford’s statement is greatly belated…But it is never too late to make amends, and I congratulate Mr. Ford that he has at last seen the light.” One Jewish newspaper even remarked that Ford’s statement was “another span in the erection of the bridge of better understanding and good will” (Rosenstock 194).
In addition to eliciting a public apology from Ford retracting his anti-Semitism, the efficacy of Marshall’s maneuver lies in the public apology and settlement he precipitated between Ford and Sapiro. Though the apology had no legal backing, the more consequential court of public opinion interpreted Ford’s apology to Sapiro as a victory for the Jewish activist. Newspapers throughout the country also covered Ford’s second apology, which Ford actually wrote. In their July 17th edition, the New York Times reprinted the whole apology. Ford explained that “the suit was based upon statements appearing in a series of articles published in 1925 and 1926,” and that “it has since been found that inaccuracies of fact were present in the articles and that erroneous conclusions were drawn from these inaccuracies by the writer.” In his next line, Ford admitted, “As a result of this, Mr. Sapiro may have been injured and reflections cast upon him unjustly.” Coupled with his initial apology to the entire Jewish community, Ford’s second apology stated that the Dearborn Independent’s remarks had been “unjust” to both Sapiro and all Jews. Unlike a verdict that would have remedied a personal dispute, the fact that Marshall’s maneuver drove Ford to apologize to the entire Jewish community twice and do it in such a public manner revealed Marshall’s genius. Aaron Sapiro’s radio address further assured an already convinced public that Ford genuinely felt remorse. “Ford did the square and manly thing, and I believe he meant every word of the public apology,” Sapiro told his audience (qtd. in “Sapiro Praises Ford”). Since the person who had brought the lawsuit against Ford believed “every word” the industrialist had to offer, the public had no reason not to follow.
Despite the two public apologies Marshall got Ford to make, scholar Victoria Woeste writes that Marshall “handled the end game with surprising ineptitude” (Woeste “Suing Henry Ford”). Though Marshall did much to thwart Henry Ford’s mouthpiece, the Dearborn Independent, and curb anti-Semitism in America, Woeste argues in her 2012 book Henry Ford’s War on Jews and the Legal Battle Against Hate Speech that Marshall failed to achieve his goal of “withdrawing hateful speech from the marketplace of ideas,” characterizing Marshall’s move as a lost opportunity to clarify hate speech laws in America (Woeste 9). “The case’s resolution outside the arena of formal law prevented it from clarifying the confusion it generated over group and individual libel,” Woeste contends (Woeste 331).
The logical problem with the argument Woeste makes is that it rests on the notion that there were laws to be clarified. Laws against group libel had only first emerged in the prior decade. Sure, they had yet to be tested in the seven states that had them (Woeste 8). But Michigan was not one of these states. Consequently, it is unreasonable to think that Sapiro vs. Ford could have clarified a law that did not exist. As Judge Raymond highlighted throughout the trial, the only laws concerning libel in the court’s eyes were those that had to do with false accusations made against an individual. Once we understand that a resolution within the courtroom would have only clarified that Sapiro had been wronged by Ford, not that all Jews had been wronged by Ford, we realize the efficacy of Marshall’s decision to use extra legal means. Marshall knew that an out of court settlement and a public apology would not legally abolish hate speech. Only the legislature could do that. So, he took the best option he had available. He got the most powerful and vocal proponent of hate speech to condemn its use. Serendipitously, this also meant the Dearborn Independent would stop spreading Ford’s hateful message. By December of 1927, having lost its ability to serve its original anti-Semitic purpose, the Dearborn Independent announced that it had ceased publication (Rosenstock 199).
Woeste’s book suggests that she would respond to this criticism by claiming that the press construed the case as a trial between Ford and the Jewish community. Following this logic, the public would have received a verdict against Ford as a verdict against hate speech. Indeed, Woeste writes, “The national press, having covered every word Ford uttered on his obsession with Jews since 1915, elided the technical distinction between individual and group libel and proclaimed the case a fight between Henry Ford and ‘the Jews.’” (Woeste 9) Woeste is correct that the press did not limit its coverage to the dispute between Sapiro and Ford. From pre-trial, where Jews and KKK members were excluded, to every objection James Reed made to William Gallagher’s questions about Henry Ford’s anti-Semitism, the press made it clear that Sapiro vs. Ford remained significant for more than the men involved. Woeste’s claim that the press “elided” the distinction between individual and group libel, however, is incorrect. As revealed earlier in articles from major outlets like the New York Times and Chicago Tribune, the press fully grasped the crucial point from James Reed’s opening for Ford: “no race could be libeled” (“Sapiro Sought” March 17, 1927). As a result, Woeste can hardly argue that a courtroom verdict would have created any precedent that group libel or hate speech was against the law.
In an attempt to deepen her argument that Marshall’s maneuver served as a lost opportunity, Woeste argues that once Marshall decided to use extra legal means, he still could have done more to address hate speech in America. “Having gotten the nation’s foremost purveyor of group libel to recognize his offense—and repent—gave Marshall a potent weapon of his own,” Woeste writes, “Why did he do so little with it?” (Woeste 331). In making this claim, Woeste is being unreasonable in what she expects of seventy-year-old Marshall. Only two years after the conclusion of the Ford vs. Sapiro saga, Marshall died. Had he enjoyed a decade to use Ford’s apology to push for new laws against hate speech, Woeste may have had a case for Marshall’s shortcomings. Using the lack of landmark legislation between 1927 and 1929 to cast Marshall’s entire stratagem as an “ineptitude,” as Woeste does, simply asks too much of the man. 15. While underdeveloped, much of the historiography on Sapiro vs. Ford takes a contrary view to Woeste, insisting that Ford’s apology served as a monumental achievement because of its “historic repudiation” of anti-Semitism (Woeste 9). As much as Woeste’s analysis undervalues Marshall’s role, the rest of the Sapiro vs. Ford historiography overvalues it. Marshall allowed Ford to plead ignorance even though his common sense told him Ford was behind the Dearborn Independent’s anti-Semitism. Marshall let “Ford” claim in his initial apology, “in the multitude of my activities it has been impossible for me to devote my personal attention to [the Dearborn Independent’s] management or to keep informed as to their contents” (“Ford Apologizes July 8, 1927). Proving this claim blatantly false, E.G. Liebold, Ford’s personal secretary later stated that the newspaper’s articles “were prompted largely by Mr. Ford” and that “he kept in touch with every phrase” (Baldwin 222). Ford, who received a prize from Adolf Hitler in 1938, never changed his mind on how he felt about Jews (Pool 129). As a result, historians cannot call Ford’s apology a “historic repudiation” of anti-Semitism because it was never really a repudiation.
Ultimately, Marshall’s maneuver demonstrated the power of pragmatism to effect social change and perhaps even legal change. As Victoria Woeste misunderstands, had Marshall let Sapiro vs. Ford conclude in court, the case would not have had the same impact on public opinion. At the same time, Marshall maintained no delusion that he led Ford to actually change his mind on Jews, and historians should not credit him with such. Part of the significance of Marshall’s maneuver surely rested in the fact that Ford could no longer communicate his anti-Semitic ideas to the American public. Since Marshall got Ford to make such a public apology, Ford could not speak out against Jews for the rest of his life if he wanted to maintain any credibility in Americans’ eyes. Marshall imposed a de facto hate speech ban on the most prominent industrialist and anti-Semite of his decade.
But Ford, regardless of his power, was still only one man. The real mastermind of the Marshall’s maneuver is that he helped implant in Americans’ minds the notion that hate speech could inflict harm on certain communities and that the perpetrators of that harm could be held accountable. This was not a “historic repudiation” of hate speech as much as it was the first example of real consequences to hate speech. The former would have required mass sentiment against anti-Semitism and a new law. Before Sapiro vs. Ford, the idea that perpetrators of hateful speech should be prosecuted had yet to reach critical mass, especially since the small minority of states that had group libel laws never punished anyone for not following them. After Sapiro vs. Ford, the ground for actual laws against hate speech became fertile. We can never know how subsequent hate speech laws, such as the groundbreaking 1935 New Jersey statute against propaganda inciting religious or racist hatred, would have turned out if Ford had never appeared to condemn anti-Semitism (Woeste 332). Regardless, having weighed the potential of a legal finish in Sapiro vs. Ford against an extra legal conclusion, we can only assume that Marshall may have had some role in easing the passage of future hate speech laws.
Baldwin, Neil. Henry Ford and the Jews. New York: Public Affairs, 2001.
Balkin, J.M. “Review of History of Hate Speech in America.” Organization of American Historians, June 1995. http://www.jstor.org/stable/2082134.
Blanchard, Margaret. “Hate Speech: The History of an American Controversy by Samuel Walker.” The American Journal of Legal History 40, no. 2 (April 1996). http://www.jstor.org/stable/845572.
Cortese, Anthony. Opposing Hate Speech. Westport, CT: Praeger, 2006.
Delgado, Richard, and Jean Stefanic. Must We Defend Nazis. New York: New York University Press, 1997.
“Ford and Sapiro Settle Libel Suit.” New York Times, July 17, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/docview/103913413/3....
“Ford and Sapiro Testify This Week.” New York Times, March 27, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/hnpnewyorktimes/doc....
“Ford Apologizes to Jews and Halts Magazine Attacks.” New York Herald Tribune, July 8, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/hnpnewyorktribunefu....
“Ford Will Testify as Sapiro Witnesses; Six Women on Jury.” New York Times, March 16, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/docview/104209557/3....
“Ford’s Apology Wins Acclaim of Chicago Jewry.” New York Herald Tribune (1926-1962), July 9, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/docview/1131258786/....
Hernandez, Tanya. “The Legal Challenges of Diversity.” The Fordham Law Archive of Scholarship and History, 2014. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1518&context=fa....
“Jewish Leaders Glad to Accept Ford’s Apology.” The Atlanta Constitution (1881-1945), July 9, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/docview/499999314/8....
Lewis, Anthony. Freedom for the Thought That We Hate. New York: Perseus Books Group, n.d.
MacKinnon, Catharine. Only Words. Cambridge, Mass: Harvard University Press, 1993.
Pool, James, and Suzanne Pool. Who Financed Hitler. New York: The Dial Press, 1978.
Rosenstock, Morton. Louis Marshall, Defender of Jewish Rights. Detroit: Wayne State University Press, 1965.
“Sapiro Praises Ford; Attacks Senator Reed.” New York Times, July 21, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/hnpnewyorktimes/doc....
“Sapiro Sought World Empire, Libel Jury Told.” Chicago Daily Tribune (1923-1963), March 17, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/hnpchicagotribune/d....
“Witness Links Ford with Sapiro Attack.” New York Times, March 26, 1927. http://search.proquest.com.ezp-prod1.hul.harvard.edu/docview/103925440/3....
Woeste, Victoria. Henry Ford’s War on Jews and the Legal Battle Against Hate Speech. Stanford, California: Stanford University Press, 2012.
———. “Insecure Equality: Louis Marshall, Henry Ford, and the Problem of Defamatory Antisemitism, 1920-1929.” Organization of American Historians 91, no. 3 (December 2004). http://www.jstor.org/stable/3662859.
———. “Suing Henry Ford: America’s First Hate Speech Case.” American Bar Foundation. Accessed April 15, 2015. http://www.americanbarfoundation.org/research/project/19.
Wolfson, Nicholas. Hate Speech, Sex Speech, Free Speech. Westport, CT: Praeger, 1997.