Essay: Filial Piety And The First Amendment

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As much as it depends on its paper and ink, this magazine, like all books and periodicals published in this country, owes its continuing existence to the First Amendment to the Constitution of the United States, which guarantees freedom of speech and the press, and to the Fourteenth, which requires the states to respect the same rights. Whenever a threat to these liberties arises, therefore, we must resist it. For this reason AMERICAN HERITAGE and its editor have become involved, together with a great many eminent historians, in one of the most curious legal cases in recent years, that of Frick v. Stevens.

The facts are a little complicated. The elderly plaintiff, Miss Helen Clay Frick, the only surviving child of Henry Clay Frick, the noted Pittsburgh steel master who died in 1919, nearly a half century ago, is angry about a book which in a few cursory references makes what she regards as defamatory remarks about her father. She wants either to alter it or to win an injunction halting further distribution. The defendant is Dr. Sylvester K. Stevens, a professional historian, executive director of the Pennsylvania Historical and Museum Commission; he is also a member of the editorial Advisory Board of AMERICAN HERITAGE. His book, Pennsylvania: Birthplace of a Nation, was published by Random House in 1964. Miss Frick received a copy as a Christmas present and apparently turned at once to the index for references to her father.

What she found displeased her enormously, especially these two passages:

“In the bituminous coal fields of western Pennsylvania Henry Clay Frick had built a similar monopoly of coal and coke production and was equally successful in beating down efforts at unionization. Frick also made extensive use of immigrant labor and cut wages to an average of about $1.60 a day while extracting the longest hours of work physically possible. Most mines of the time were without anything resembling modern safety appliances or practices, and serious accidents were common.

“Still another abuse was the company town with its company store. The coal companies owned the houses, shoddy wooden shacks without sanitary facilities, which they rented at a high rate to workers.”

* * *

“The power of the union was broken in the bloody and disastrous Homestead strike in 1892 by stern, brusque, autocratic Henry Clay Frick.”

It does seem preposterous at this point in history and scholarship to protest such a mild view of a well-known figure in the harsh era of Rockefeller, Morgan, Fisk, Gould, and Carnegie. Hear, for example, what other historians have said about him:

“At the Homestead steel mills, Henry Frick displayed capitalist management in its ugliest and most relentless light …”

Margaret Leech, In the Days of McKinley

“Frick was instrumental in establishing the anti-union policy of the Carnegie partners. In 1890 he annihilated the union in the coke fields and in 1892 with Carnegie’s approval directed the anti-union policy which brought on open warfare at Homestead. This strike started on July 1, 1892. Six days later 300 imported Pinkerton detectives, brought up the Ohio on barges, clashed with the unionists. After a bloody battle the detectives were escorted from town. On July 23, Alexander Berkman, an anarchist, attempted unsuccessfully to assassinate Frick. By fall hunger, dissension, and the repressive action of about 8,000 Pennsylvania guardsmen had broken the strike.”

—Encyclopedia of the Social Sciences

“Frick was the personification of the ruthless business leader who would tolerate no opposition. His attitude toward labor was uncompromising.”

—Philip Taft, Organized Labor in American History

“One of the most notorious of all labor strikes was that at Homestead, Pennsylvania, in 1892. Beginning in a dispute over wages, it became a complicated case of the rights of private property against militant organized employees, a majority of whom were foreigners. Carnegie was in Scotland, and Frick was in full charge.”

—Dictionary of American Biography

Why didn’t Miss Frick sue some of these sources? Why didn’t she, for that matter, sue such noted historians as Allan Nevins, Henry Steele Commager, and Samuel Eliot Morison, all of whom have had strong things to say of Henry Clay Frick? It turned out, in the Court of Common Pleas in Cumberland County, Pennsylvania, where she brought her suit, that Miss Frick had not read any such books. The kind of book she liked was The Romance of Steel, published in New York in 1907 and written by Herbert N. Casson. In this “very precious book,” as Miss Frick called it, appeared a very different Frick:

”… to the possession of this rare physical courage he adds the tenderest sentiment. His devotion to flowers, to painting and, above all, to his two children, Childs and Helen, is well known in Pittsburgh. … Mr. Frick has had a special checkbook made, which he uses for all charitable purposes; and upon every check is a picture of his daughter’s face.”

In her own complaint to the court, Miss Frick contemplates a figure scarcely recognizable to historians:

”… an upright and honorable man, conducting all of his affairs in full compliance with all laws and with the highest principles of ethics and good conscience. … He treated working men fairly, paid wages which were reasonable and in line with the current conditions and raised them whenever possible, provided safety equipment of the best quality then in existence, and greatly improved the quality of homes rented to employees. …”

Although she is not personally mentioned in Dr. Stevens’ book, Miss Frick believes that anything that historically blackens her father’s character injures her reputation.

Henry Clay Frick was, in fact, a pretty tough old bird. Born of Mennonite and other German stock in 1849, and named for the great Whig compromiser, he went to work early for his grandfather, Abraham Overholt, a distiller of Youghiogheny whiskey whose name and countenance still adorn the label of a popular brand of oh-be-joyful. Serious, businesslike, hardworking, a character out of Horatio Alger, Frick moved on into coke and then steel, accumulated millions in his own right, and became a partner of and manager for Andrew Carnegie. Later in life he quarrelled with Carnegie, who was as hypocritical as Frick was straightforward about his wealth. In 1913, while breaking into New York society, Frick built a five-million-dollar house on Fifth Avenue at Seventy-First Street which, he said, would “make Carnegie’s place look like a miner’s shack.” This truly handsome building he filled with paintings by El Greco, Van Dyck, Vermeer, Rembrandt, and Rubens, among others; on his death, when modern tax laws had begun to make their appearance, he left the home and its art to the public as The Frick Collection.

His loyal daughter was a strong character, too. She never married, and she devoted her career to continuing and augmenting her father’s philanthropies, a Lady Bountiful with a whim of iron. According to a 1939 New Yorker article by John McCarten, she in those days hated wearers of bobbed hair, New Dealers, and (despite her antecedents) Germans. Out of her genuine love and knowledge of art, she built and organized, next door to her father’s museum, the great Frick Art Reference Library, a superb scholarly institution that is a more durable achievement in its way than anything her father constructed. Generous and petty both, she for a long time excluded from it anyone with a German name until she decided that some of them might be just Americans who liked art, or that they could be Jews and other anti-Nazi refugees who had more reason than she for disliking Germany. (She was still angry from the First World War.) She gave the public a nature sanctuary near her home in Westchester County, north of New York City, but threatened not long ago to repossess it if the Bureau of Public Roads went ahead with a plan to drive one of its big highways through it. Recently she has had a bitter controversy with the University of Pittsburgh, to which she has donated millions for an art building where she placed a collection of old masters. When Pitt incurred her displeasure by showing modern art and, in her opinion, otherwise misusing the building, she withdrew her financial support and her art. Lady Bountiful is apt to tie strings to her gifts.

There is an anachronistic air to the Fricks, father and daughter, that belongs to the era of great estates, large fortunes, forelock tugging staffs, private railroad cars, and a kind of charitable disdain for the great unwashed. Mr. Frick abhorred publicity and avoided it all his life. Once, when the stock market was sinking and Mr. Frick was known to be conferring with James Stillman of the National City Bank, a financial writer whom both men respected found out about the meeting and sent in to seek their opinion. Out came, after an hour, this statement:

“The U.S.A. is a great and growing country.
[signed] James Stillman,
Henry C. Frick

This statement is confidential and not for publication unless names are omitted.”

Miss Frick seems to dislike equally the glare of public attention, even when it is favorable. Many years ago she founded a retreat, or vacation home, for working girls at Beverly Farms, Massachusetts, not far from the family summer place at Prides Crossing. The retreat was later turned over to the Girls Clubs of America. In 1964, Mrs. Ellen Boyd, then a lady of eighty-six, who had worked at the home for some thirty years, privately printed an autobiography dealing largely with the history of this particular charity. Its references to Miss Frick were only devoted and laudatory, but the object of this gratitude was so distressed that she brought a suit in a Massachusetts lower court to enjoin distribution of the book and have all copies suppressed. It is to the credit of the startled Massachusetts Supreme Judicial Court, where the matter was soon referred, that it threw out the case a month after the judges heard it, in January, 1966.

Unfortunately, no such thing happened in the suit against Dr. Stevens. The case was instituted in January, 1965, and dragged on until June, 1967, when Judge Clinton R. Weidner, in a most eloquent opinion, decided in favor of Dr. Stevens.

What then, since history has so far won out over filial piety, is the problem? In personal terms for Dr. Stevens, the case has been expensive in time and money; Miss Flick’s financial resources are infinitely greater than his. In broader terms, the historical profession believes that this case ought to have been thrown out at the very start. It was not a libel suit, seeking damages, but one in equity, seeking a relief that is unconstitutional on its very face—an injunction against a book. The state judge considered the case both constitutionally and on its “merits,” that is, on whether what Dr. Stevens wrote was accurate. He made it even more difficult by ruling out the testimony of professional historians who were waiting in court, and by excluding almost all “secondary” evidence (the writings of historians and other non-eyewitnesses). Only first-hand, contemporaneous evidence—either eyewitnesses or “disinterested” source materials—would do, went the ruling. No eyewitnesses, in fact, were introduced by either side in the trial, for the simple reason that they would have had to be about one hundred years old.

Deeply disturbed by the implications of this long-drawn-out suit, and by the preliminary rulings of the Pennsylvania court, a number of historians—representing the American Historical Association; the Organization of American Historians; our sponsors, the American Association for State and Local History and the Society of American Historians; and AMERICAN HERITAGE magazine—last year formed an ad hoc committee to fight this and any other infringement of the constitutional rights of historians to publish freely. The editor of this magazine serves as treasurer. Money was raised to assist Dr. Stevens with his legal expenses and to bring a countersuit in the federal courts to enjoin Miss Frick from what we believe is her legal harrassment of Dr. Stevens.

An eminent former federal judge, Simon H. Rifkind, was retained as counsel in the countersuit. The very pendency of the Pennsylvania action, he contended, served to inhibit the lights of Dr. Stevens to publish freely, without malicious intent—even if what he had written was wrong. Judge Weidner, as it happens, has by painstaking effort satisfied himself that it was not wrong, but this is beside the point. The historians and Judge Rifkind claimed that a success for Miss Frick—indeed, even a long, costly delay—would inhibit the right of scholars “to speak freely about the past based on scholarly research, and … would permit the descendants of long-dead historical figures to have serious books removed from circulation simply because something critical was said about their ancestors.”

As it turns out, the federal courts have been unwilling, on narrow grounds of jurisdiction, to relieve Dr. Stevens of his burden. The Supreme Court refused to hear the countersuit. However, since Miss Frick has appealed Judge Weidner’s decision and has announced her intention to fight the case all the way, if necessary, the Supreme Court justices may eventually find these distinguished adversaries in their laps again, many printing and legal bills later. If they hear the case and do not clearly affirm the historian's right to be free of the burden of defending such suits, the time may be ripe for the descendants of Aaron Burr, Benedict Arnold, perhaps even George III, to hie them to the courts to “correct” the record. After that, of course, there will be a golden era for the writers of “authorized” biography who will advise us, in extenso about the bravery of Burr, the kindness to animals of poor, misunderstood Arnold (about whom we are perhaps being actionable in this issue), and the love of King George for his children. And you can forget the First Amendment.

Oliver Jensen