Campaign flyer from Joe’s first Chapel Hill Town Council race, 1979

About Joe

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Chapel Hill, N.C., United States
Joe Herzenberg was born June 25, 1941, to Morris & Marjorie Herzenberg. His father owned the town pharmacy in Franklin, N.J., where Joe grew up. After he graduated from Yale University in 1964, Joe went to Mississippi to register voters for Freedom Summer. He joined the faculty of historically black Tougaloo College, where he was appointed chair of the history department. Joe arrived in Chapel Hill in 1969 to enroll as a graduate student in history at the University of North Carolina, and, along with his partner Lightning Brown, soon immersed himself in local, state, and national politics. Although Joe’s first campaign for the Chapel Hill Town Council in 1979 was unsuccessful, he was appointed to the Council to fill a vacant seat and served until 1981. In 1987, he was elected to the Council, becoming the former Confederacy's first openly gay elected official. Joe died surrounded by friends on October 28, 2007. He was 66 years old.

Friday, May 18, 2001

'Limits of Dissent' brings back trial of Junius Scales

Chapel Hill Herald, May 18, 2001


CHAPEL HILL - Lou Lipsitz had never written a play before he wrote "The Limits of Dissent." But the play practically wrote itself, the former UNC political science professor said earlier this week.

That's because the play is based on the 1950s trial of Junius Scales.

In 1956 and 1957, Scales was tried and convicted in Federal Court in Greensboro for violating the Smith Act, which was passed in 1940 and prohibited even being a member of an organization that advocated the violent overthrow of the government.

"There's nothing invented in the play. All the characters, all the testimony are real. I did some editing, a little smoothing out here and there for the sake of clarity," Lipsitz said.

Lipsitz had been commissioned to do the play in 1976 by Warren Nord, then with the N.C. Humanities Council. Nord now directs UNC's Program in the Humanities.

Nord knew Lipsitz was a writer (he writes poetry) and that the UNC political science professor had a strong interest in civil liberties issues.

Lipsitz retired from UNC in 1995, continues to write poetry and also works as a psychotherapist.

The playwright said he chose the trial of Scales because of local interest and issues involved.

Scales lived in Carrboro and Chapel Hill and went to UNC.

Joe Herzenberg, who performs in the play, said he recently went by Scales' home in Carrboro at 201 Carr St. and took a photograph to display during the staged readings. The exact location of where Scales lived in Chapel Hill is not known. Scales and his mother moved to Chapel Hill, where Scales graduated from Chapel Hill High School in 1936, Herzenberg said.

Scales' father had been a real estate developer in Greensboro but was ruined in the Depression, Herzenberg said.

Scales came from a prominent family in the state; his great-uncle had served as governor. This revival of the play also features "local color" in its actors, Lipsitz said.

Herzenberg, a former Chapel Hill Town Council member, plays the judge.

"It's an easy role. He doesn't have much to say," Herzenberg said.

"The judge was a very conservative man," Herzenberg said. "At one point, he rules that writing your congressman could be illegal - the first step toward overthrowing the government."

Joe Straley, a retired UNC professor of physics and well-known activist, will actually play himself. He was a character witness for Scales during the trial.

"And, he has to read his own testimony," Lipsitz said.

The idea to revive the play came from Mark Dorosin, attorney, Carrboro alderman and current president of the local ACLU chapter, Herzenberg said, adding that other actors also are on the ACLU board.

The cast also features Dorosin, Pat Devine, Malcolm Logan, Margaret Brown, Marina Barber, David Neal and Jonathan Broun. Former UNC student body President Aaron Nelson, currently director of the Chapel Hill-Carrboro Chamber of Commerce, plays "The Bailiff."

Issues also made the case of Scales good fodder for a play, Lipsitz said.

"There are always people for various reasons who want to suppress controversial speech," Lipsitz said. "There are free speech issues of different kinds. It's good to have a historical perspective. In America, we have these episodes of suppression."

Then there are the moral questions raised by Scales' case.

There was the issue of his honor: not wanting to dishonor himself and his friends by testifying, Lipsitz said.

There are the questions about the tolerance of unpopular views as well as how honesty and truth, or the lack thereof, figured into the verdict, Lipsitz said.

The main issue, as Lipsitz sees it, and the reason why he titled his play as he did: "What kinds of limits are there to dissent against a government you think is corrupt and evil? When does free speech turn into the advocacy of action? Where's the limit?"

The prosecution could not prove that Scales had committed any violent acts or had plans to overthrow the government, Lipsitz said.

The trial had consisted of 13 days of prosecution testimony mostly about the organization of the Communist Party, portrayed as a secret and violent conspiracy, but there was no actual proof the organization had done anything, Lipsitz said.

"They were trying to convict people for their thoughts," he said.

The case against Scales was very weak, but he was convicted both times, the playwright said.

"He was convicted because of the atmosphere of the times," Lipsitz said.

This was the era dominated by Sen. Joseph McCarthy and others who feared the Soviet Union.

The playwright said what struck him about the trial in particular was the disillusionment of the ex-communists who testified for the government and the loss of a sense of proportion.

"Scales is obviously not a dangerous man," Lipsitz said.

Scales was not even a member of the Communist Party during the trials in 1956-57, Lipsitz said.

He had joined the party in the 1930s when he thought it the best way to address the racial situation as well as poverty brought about by the Great Depression, the playwright said.

He, as others, later became disillusioned about the Communist Party, Lipsitz said.

The playwright read through a foot-tall stack of transcripts from the second trial of Scales to get material for his 90-minute play.

"There is moving and funny testimony buried in the three weeks of testimony. I chose the compelling human moments and humor that I found," Lipsitz said.

The play has a lot of humor, including the evasive testimony of Esther Gillis, a textile worker from High Point who was asked to name people who attended a meeting and who managed, in various ways, to not answer the question, Lipsitz said.

The Supreme Court upheld the verdict barely at 5-4 and prominent people campaigned to get Scales out of jail, Lipsitz said.

But Scales wound up serving about a year and a half in a federal prison in Pennsylvania and while there hosted an opera show on the prison radio, Lipsitz said.

President John F. Kennedy commuted Scales' sentence on Christmas Eve 1962.

Scales then worked as a proofreader for The New York Times and vowed never to return to North Carolina because he thought it would cause more pain to his family and friends here, Lipsitz said.

In 1976, Lipsitz said he had written to Scales about the play, and Scales had told him not to do it because the incident had brought pain to so many people. But Lipsitz said he thought Scales was wrong, that the play should be written.

"It would help to heal what had happened," Lipsitz said.

Scales wound up coming to see a performance of the play in 1977 in Raleigh.

"It changed his life," Lipsitz said. "He came out of seclusion, wrote an autobiography, published by The University of Georgia Press. He taught at the Journalism School at Columbia University."

Herzenberg said he saw Scales once at a reception held in the Morehead building after publication of Scales' autobiography. Women - high school classmates - flocked to see him again for the first time since high school.

"He really was a charming man," Herzenberg said. Scales now lives in Pine Bush, N.Y.

Herzenberg said he also attended the performance of Lipsitz's play in the '70s at an Orange County courthouse, where a "jury" of community members wound up being hung because of a debate about whether to make the decision based on the standards of the '50s or of the present day.

"Juries" at the other 29 performances, all held in courtrooms throughout the state, found Scales innocent, Lipsitz said.

What had seemed threatening 20 years before did not seem that way when the play was performed. "People were really afraid in the '50s," Lipsitz said.

The play premiered in the Federal Courthouse in Greensboro where Scales was tried. "What really gets to me is how difficult it is to transport ourselves back in time. Audiences of today laugh at things that people found very serious back in the 1950s," Herzenberg said. "I just hope people remember these things weren't intended as jokes."

The Smith Act was passed before World War II to attack radicals, Herzenberg said. "Throughout our history, there have been repeated periods of political paranoia, usually from the far left. The main point is that you should know that these things can happen in our society."

But the limits of dissent have broadened since Scales' trial, Herzenberg said. "We're a much freer society than we were then."

Staged reading

The Chapel Hill-Carrboro ACLU presents "The Limits of Dissent" by Lou Lipsitz. A public staged reading of the play takes place at 7:30 p.m. today and Saturday inside the Chapel Hill Courthouse on the corner of Henderson and East Franklin streets. The play is based on the 1950s trial of Junius Scales, the only American ever sent to prison just because he belonged to a political party - the Communist Party.

No admission will be charged, but donations will be accepted.

Junius Scales died of a stroke in August, 2002. He was 82.

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