9-1
Chapter 9. Enforcement without law
Now that Ford has been disposed of we have reached a propitious moment for dealing on a large scale with the crime of anti-Semitism. . . . so long as I live I shall remain in the arena armed for the destruction of the hideous monster with which the Jews have had to contend for so many centuries.
Louis Marshall, 1927[1]
Louis Marshall’s protestations notwithstanding, Henry Ford’s apology effectively scuttled the two pending libel lawsuits. The apology then became the foundation for a continuing relationship not between Ford and his libel opponents, but between Ford and Marshall. Ford made several promises that Marshall keenly hoped he would perform. As it turned out, Ford kept only one promise without help; he shut down the Independent. For the rest, he would require prodding.
In writing the apology, Marshall’s transcendent concern was to remove The International Jew (TIJ)from circulation in the U.S. and Europe. TIJ was “the ‘Anti-Semites’ Bible,’” he told a fellow lawyer in July, and Ford’s apology would now “neutraliz[e] its effect.”[2] Scrubbing the world clean of that particular scourge would prove even more difficult than discrediting its literary ancestor, The Protocols of the Elders of Zion. Securing Ford’s cooperation in this endeavor drew Marshall into prolonged communications with Ford’s staff, which treated Marshall with professionalism and sincerity, at least outwardly. For months, Marshallbelieved he was making headway andthat Ford was helping him with the obdurate European publishers who insisted on selling TIJ.
The situation put Marshall in the position of personally enforcing the apology’s provisions. That document, however, had all the legal force of an unwitnessed will. Without a jury verdict or court order to give it the backing of law, the apology represented only a voluntary expression of Ford’s wishes. To prevail upon publishers to refrain from marketing a book Ford disavowed, Marshall had to create and implement his own system of private regulation of published speech. The system worked as long as Ford and his staff gave the appearance of wishing to enforce it. German and South American antisemitic publishers, who never renounced their beliefs, challenged both the terms of Ford’s apology and the arguments Marshall constructed to substitute the apology for law.
* * *
Even before the domestic reverberations instigated by Ford’s statement began to register,Marshall realized he could use the document to great effect abroad. Because of the constitutional protections accorded to American citizens, he believed that antisemitism had more pernicious effects outside the United States than within. Particularly in Eastern Europe, Jews were subject to vicious official acts of discrimination and violence; during the late 1920s, Rumania increasingly ignored protections for the rights of minorities guaranteed by the 1919 Treaty of Paris. On the day the apology was released to the press, Marshall saw to it that Ford’s disavowal of antisemitism was circulated to the Rumanian government “under the most favorable auspices.”[3]
The more Marshall thought about it, the more he became convinced that the real value of Ford’s apology lay in the impact it would have in places where Jews still lived in fear of their safety. “[T]he subject is one of life and death to the millions of Jews abroad,” he told theNew York Sun. “The International Jew has been translated into the various European languages and has made a deep impression because of Ford’s fabulous wealth and the myth that has become prevalent that he is a leader of human thought and a man of high principles.” The prospect that Ford would separate his industrial leadership from his antisemitic literature gave Marshall “more happiness than any action in which I have ever been engaged because I feel that its effect will be far-reaching, especially in Eastern Europe, where anti-Semitism is raging today worse than at any time during this century.”[4]
Withdrawing TIJfrom circulationwas therefore critical not only at home but also in Europe and elsewhere. The book “has become the Bible of European anti-Semites,” Marshall told Rabbi Emmanuel Schreiber. “I was officially informed yesterday that Ford had burned five truckloads of this book and intends to carry out in every way his understanding with me that the book shall be withdrawn from circulation. The good effects of this action are already being felt in Roumania [sic] and adjoining countries.” Word of the book-burning came from Joseph Palma, who witnessed the event in Dearborn in mid-August. Marshall took the act as a sign of Ford’s commitment to “do whatever lies in his power to suppress that publication everywhere.”[5]
Putting a match to copies of the book in the U.S. was a good first step, but it carried little weight with publishers overseas. On August 17, Marshall received a disquieting delivery in the mail: an advertisement for a new German edition of TIJ. The advertisement’s sponsor was Theodor Fritsch, with whom Marshall was well familiar. As the largest circulator of antisemitic literature in Germany, Fritsch had taken the lead in translating TIJinto German and selling the book there through his Leipzig-based publishing company, Hammer-Verlag. Fritsch’s investment in TIJ was not confined to his German edition; earlier in 1927, he prepared a Spanish edition. When the apology appeared, Fritsch had a ready explanation for it: “[T]he Jewish bankers had conspired to ruin Mr. Ford and had practically gotten him into such a position that his business was being destroyed and 60,000 employees were on the verge of being impoverished, and that in order to avoid that result he was forced to make the retraction and apology.” As Marshall noted to Rabbi Schreiber, Ford’s book was a veritable cash cow for the antisemitism industry: “Ford has been regarded as the mainstay of such men as Fritsch and his confreres in their efforts to destroy the Jew.”[6]
It was all the more alarming to Marshall to discover that many U.S. newspapers did not print Ford’s apology in full and that the paragraph most often omitted contained his pledge to take TIJ out of circulation. Marshall hurriedly distributed copies of the AJC’s pamphlet with the apology’s entire text. But that was not the worst of it, as he told Palma. Fritsch “recently stated that he did not believe that Mr. Ford had made a retraction or apology because he had not interfered with his circulating the [TIJ].” In other words, if Ford had been serious, Fritsch’s “rights of publication would have been taken away.” It was therefore necessary, in view of the impending publication of the Spanish edition in Spain and elsewhere, to “put an end to any supposed relations between Fritsch and his publishing company and Mr. Ford, whose name is still being used to the injury of Jews and in contravention of world peace.” The first order of business was to prevail on Ford to dispose of Fritsch’s publication rights, and here Marshall was certain: “[I]f they have not already been withdrawn they will be.” Marshall asked Earl J. Davis to prevail on Ford “to induce action which will neutralize the efforts of Fritsch to continue his unholy warfare upon the Jews.” Davis came to New York in mid-September, but, unable to see Marshall in the short time he was in the city, he left some letters for him with Palma.[7]
The letters consisted of an exchange between Fritsch and the Dearborn Publishing Company. Fritsch’s letter, dated July 9, cited a report from that day’s Leipziger Neuesten Nachrichten (Leipzig Latest News) about Ford’s “solemn retraction” and the withdrawal of TIJ from bookstores: “We would be grateful for a statement from you of the facts,” Fritsch asked Ford, “in order to discontinue the dissemination of the untruthful assertions.” In reply, Fred Black confirmed that the German news report “is substantially correct.” He observed rather than inquired, “it is your intention to discontinue the dissemination of these articles in European countries.”[8]This important correspondence raised the issue that most concerned Marshall: were Ford and the DPC prepared for resistance to Ford’s new position?
Black’s answer to Fritsch, Marshall felt, failed to meet the task laid out for it. It was vague; it failed to deliver a “correct idea of the document signed by Mr. Ford,” and it should have included the full text of Ford’s apology so as to leave no doubts as to Ford’s intention. “What should have been done was to have demanded in unmeasured terms that Hammer-Verlag and Fritsch should no longer publish or circulate ‘The International Jew,’” Marshall advised, “that all existing copies were to be withdrawn, that no further publication was to be made, and that any attempt to do so would be regarded by Mr. Ford as unauthorized and unlawful.” Three months after the apology, much to Marshall’s consternation, TIJ remained readily available in Germany. Marshall implored Ford’s staff to secure a letter from Ford that could be circulated to the Jewish press in Europe “showing the facts” of how Ford desired to withdraw his book from booksellers worldwide.[9]
Two weeks later, Palma took Marshall’s recommendations to Detroit, where he met with Frank Campsall. As the Sapiro lawsuit collapsed, Campsall replaced Ernest Liebold at Ford’s elbow. Liebold and William Cameron remained on the Ford payroll, although the apology called for both to have been dismissed. Campsall authorized Palma to have Marshall draft a plan explaining “just what you want us to do regarding the European situation on the International Jew.”[10]
Marshall seized the commission as another chance to summarize, as he had been doing all summer and fall, Ford’s legal position regarding his now-discredited publication. Quoting verbatim from the apology, “which was forwarded to me at the instance of Mr. Ford on June 30, 1927,” Marshall invoked Ford’s pledge to withdraw the TIJ pamphlets as binding contractual language that required no elaboration. The next step, Marshall indicated, was to “allay” the anxiety of “the Jewish press and the Jews generally throughout the world who, have accepted unreservedly Mr. Ford’s retraction.” Ford needed to take “active measures” to stop “the misuse of his name” as evidenced by continued distribution of the title “Henry Ford’s International Jew.”Marshall then attached a plan for suppressing TIJ and ending further republication of the book. The plan urged Ford and the DPC to meet Fritsch’s objections to the June 30 statement head-on.
In order that there may be no misunderstanding as to my wishes in this regard, you are accordingly notified that whatever rights you have or claim to have to publish “The International Jew” anywhere or in any language whatsoever, are hereby revoked and terminated, and that the publication, sale or other distribution of “The International Jew” and the use of the name of Henry Ford or of the Dearborn Publishing Company in connection therewith, by you or by any person or corporation claiming under you or acting by your authority as agent, licensee or otherwise, are hereby forbidden.[11]
Marshall, an able and experienced lawyer, counted on the fact that Fritsch was not. This language swept the question of legal rights into a category defined solely by Ford’s wishes. The fact that TIJ was never copyrighted and that anyone was free to publish it in any form did not count in this reckoning of rights. Marshall wanted Fritsch to believe that publication rights, just like the use of Ford’s name, flowed from a grant of permission that Ford now explicitly revoked. Palma thought that Marshall’s wording came across strongly; his cover note to Campsall, to whom he sent Marshall’s plan on October 17, suggested he revise the statement.[12]
Campsall saw no need. Marshall’s letters to Fritsch and Hammer-Verlag were retyped on company letterhead, signed by Ford, and mailed to Germany on November 1 as originally written. Marshall released the text to the press two weeks later at the AJC’s annual meeting. He explained that rumors abounded in eastern Europe that Ford’s signature on his apology—as well as Marshall’s on his letter of acceptance—had been faked, in an ominous sign of “the power of the ‘International Jew.’” Having received press reports of Ford’s June statement and Ford’s revocation of the publication rights, Fritsch should not have been under any illusions about Ford’s intent. But he was not about to go quietly. His next actions signaled an intent to assert law in defense of his own rights. In late November, Hammer-Verlag announced to the European press that it intended to continue sales of TIJ “in accordance with legal rights already held.” Fritsch denied receiving Ford’s November 1 letter and dismissed press reports that he had as “not reliable.”[13]
That bluff could only be maintained for so long, and Fritsch knew it. On December 1, he wrote a long, impassioned letter to Ford, asking him to reconsider and pleading the case for the logic and truth of the antisemitic convictions he believed they both held:
Your decision of November 1st, whereby you forbid me any further distribution of the book “The International Jew,” is deeply regrettable. Not so much because a considerable trade-value is being destroyed thereby (as about 9400 copies of the German and Spanish publications are depreciated), but because inestimable mental goods are lost for mankind by this fact. It is not so that the book published under your name shows ‘unjustified contents’, on the contrary it contains facts and truths that offer very sharp weapons in the conflict of the honourable mankind against the tyranny of a formidable might of money and lies.
The book, he continued, “is a most valiant action and a battle-axe of the truth against the bulwark of lies of a shameless and brutal society of conspirators.” Its publication “remains the most important action of your life,” outstripping “your great economical works.” Then Fritsch launched into an extended attack on those who “want to see the book suppressed,” “the financial might of the Jews” and those who secretly harbored the “real soul of the Judaism.” The true mission of Jews, Fritsch believed, was to destroy the state in any society in which they lived: “The Jewish law isn’t a moral doctrine of ideas, but in truth it is a political constitution which joins all Jews of the world to a uniform State, and therefore hindering the Jew to sincerely belong to any other foreign State.”[14]
Fritsch’s conception of the danger Jews posed to the nation-state made him “a pioneer of the [Nazi] movement” as well as “one of the few successful antisemitic publishers of the imperial and Weimar eras.” But he was “a lonely prophet,” in the words of historian Richard Levy, because at the time few were willing to follow the implications of his ideology to the ends Fritsch preached: a constitutional dictatorship that eliminated all “‘left-wing criminals and Jews.’” His entreaty to Ford bears the ring of one who thought he had found his soul mate only to experience cruel and inexplicable rejection: “There was a time when all thinking and honest men throughout the world full of expectation had looked up to you, Mr. Ford, as a Redeemer. Ford the highly-gifted and mighty spirit of enterprise, he who is invincible by finance—will break the chains, he will bring the liberty to all men!Such was the expectation!And now this catastrophe!” Fritsch believed Ford had not pushed his antisemitic convictions to their fullest. There was no point in appealing to the conscience of “good” Jews, Fritsch thought; instead, Ford betrayed himself and his followers by thinking all Jews could be reformed. He had capitulated to “the core of the Jewish danger.”[15]
Hammer-Verlag responded to Ford with a formal assertion of its legal rights. The publishing company consulted a “recognized authority about the copyright questions involved,” and that authority rendered the following advice: “[N]o German copyright permits that a regular conferred right to distribute the book . . . in the German language and to have it translated into other languages can be withdrawn arbitrarily by a one-sided declaratory act of the author.” As a result, Fritsch and Hammer-Verlag stood on solid ground in German copyright law. They notified Ford that they “regret very much to be obliged to decline your order to withdraw from sale the German and Spanish translations we have made.” They were willing to make one concession: they would add Ford’s June 30 statement to future copies of the book so that every reader “will be in the position to know the altered position of the author.” Should this course not satisfy Ford, he was free, according to German law, to compensate Fritsch and Hammer-Verlag for the destruction of all 9660 German and Spanish copies and for the withdrawal of French and Italian manuscripts from publication. Hammer-Verlag pegged the total value of these books at 40060 German marks and supplied the name of Fritsch’s bank and account number to facilitate the transaction. Upon receipt of the money, Hammer-Verlag would immediately cease selling the book and give wide public notice of that fact.[16]