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Last time on the podcast, we saw how, in the early 1920s, a movement gained momentum campaigning for state-level bans on teaching Darwin's theory of Evolution by Natural Selection in public schools. Where we left off, the former politician William Jennings Bryan and various fundamentalist Christian allies had achieved their first real success. In March 1925, after months of intense campaigning, the Tennessee state legislature passed the Butler Act, making it punishable by a fine of between 100 and 500 dollars

"for any teacher in any of the Universities, Normals and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals."

Plenty of people in Tennessee supported the bill, but quite a few objected, and even while it was still in the senate, a movement began to develop opposing it.

The National Civil Liberties Bureau had been formed during WWI, as the war effort led the government to impose intense restrictions on freedom of expression. The organisation was intended to protect the rights of anti-war activists and conscientious objectors. Its founder, Roger Baldwin, actually went to prison himself for a year when he refused to register for the draft. When he was released, the war was over, but the threats to free speech that the war had inspired were still there. The Russian Revolution of 1917 had left a lot of the world terrified of the prospect of their own Communist Revolution, and in Europe the chaotic power vacuums left by the war were indeed a space for various obscure and short-lived Communist polities to emerge. Even in America, a very long way from the front lines and on the winning side, where the state was still very much intact, workers were organising serious industrial action. 1919 particularly saw a series of major strikes in critical industries across the country. Coal workers, steel workers, dock workers and garment workers in New York, Police officers in Boston, every single union in Seattle for 5 days in February, thousands of tenants in New York refused to pay rent, etc. etc. And on top of that between April and June anarchists sent mail bombs to various politicians and businessmen. The government responded with crackdowns on activists, employing just about every law they could think of to try and disrupt organised labour, especially the Palmer Raids, targeting left-wing activists among immigrant communities for deportation. State legislatures enacted various laws banning left-wing symbols and slogans, and all this ushered in an environment known as the First Red Scare.

Baldwin's National Civil Liberties Bureau rebranded as the American Civil Liberties Union, and was now committed to supporting left-wing activists against state- and industry- sponsored repression, and supporting free speech in general.

In their early years, though, the ACLU's legal defences actually had very little success.

And now we've got to cover a bit of background in American Constitutional law - it's going to be important later as well. You may be thinking "Ah, but what about the First Amendment? Surely that would protect someone being prosecuted for, say, telling their co-workers to go on strike, or flying a red flag."" The thing is that nowadays, you would largely be right. You absolutely have a constitutional right in the United States of America to do these things. The thing is that in those days it worked a bit differently. And that's not because the Constitution's changed. The relevant parts of the Constitution are exactly the same as they were just over a century ago. Instead, it's because courts nowadays have started interpreting the Constitution differently, in two important ways.

Firstly, the First Amendment's right to free speech used to be interpreted much more narrowly than it is now. Nowadays, the Supreme Court maintains that you can only be prosecuted for incitement if a speech act is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". But this only goes back to 1969. Before that, the ruling precedent was that the government was allowed to restrict speech as long as "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent".

This was generally taken as allowing the government to prosecute all sorts of speech that would be protected nowadays, and was upheld in various successful prosecutions of left-wing activists throughout the first half of the 20th century. Basically, to a rough approximation, nowadays it would still be illegal to make a specific plan to violently overthrow the US government in a Communist revolution, but if all you were doing was saying it would generally be a good idea to do that at some point, that would still be protected speech. But the precedent in place until 1969, was that, at least sometimes, the Government could prosecute you for just saying someone should overthrow them, even if that wasn't something you or the people listening to you were likely to actually attempt.

The other big difference between the right to free speech then and now is that, at the time, the First Amendment wasn't considered to apply to state government. Nowadays, it's generally agreed, and has been for a long time, that some parts of the Bill of Rights, including the Right to Free Speech, do apply to the states (I might explain the exact reasoning later on, because it's also relevant to the case in question. For now, look up Incorporation of the Bill of Rights if you're interested.) But this wasn't decided until 1925, in an appeal supported by the ACLU.

The point of all this is that the First World War, and the period immediately afterwards, saw the US Government, and state legislatures greatly restricting free speech, and that the first amendment, as it was interpreted at the time, was much less powerful than it is today as far as protecting free speech is concerned, and it didn't apply to state legislatures at all. And this was the environment where the ACLU was defending people prosecuted for speech acts, and trying to generate legal precedents in favour of free speech. And they were remarkably absolute and consistent in their commitment to free speech, too. They have a reputation for supporting even the free speech of groups like, say, the genuine Ku Klux Klan.

Academic freedom became a particular focus in the early 1920s. For example, in 1921 the Lusk Laws in New York State required public school teachers to hold a certificate confirming that they'd never "advocated a form of government other than the Government of the United States", and required even private schools to receive authorisation for each course they taught. These were repealed after two years, with nobody ever actually being prosecuted, but it rang alarm bells nonetheless, and meant that academic freedom became a high priority for the ACLU. At the same time there were various other laws going through, regulating the political views of teachers, and imposing requirements for religious observances in schools, and that sort of thing. So when Roger Baldwin came across this new law in Tennessee, threatening to prosecute schoolteachers for teaching mainstream scientific orthodoxy as opposed to Biblical literalism, this was something the ACLU had to resist.

The governor of Tennessee, signing off on the bill, had said that he didn't expect it to ever actually be enforced. But the ACLU had other ideas. Their plan was to create a test case - to force a court to actually make a ruling on whether the Butler Act was legitimate. All they needed now was a defence team, and a defendant - a Tennessee schoolteacher who would be willing to incriminate themselves and go on trial for teaching evolution.

George Rappleyea was the manager of Dayton's Cumberland Coal and Iron Company, that had taken over what was left of the town's iron industry after the Dayton Coal and Iron Company collapsed. He was a Northern incomer, originally from New York. But, like most people in Dayton, he was a Methodist. However, unlike most people in Dayton, he was also a modernist, and believed that it was perfectly reasonable to be a Christian and accept that humans evolved from apes. He actually apparently already had a reputation locally for arguing about evolution.

If you remember the last episode, you'll know that Dayton was in a bad place economically, with the loss of most of its iron industry. When he heard about the ACLU's plans in the Chattanooga Times, though, Rappleyea had an idea. The town could pivot from an economy primarily focused on heavy industry to one based on hosting high-profile trials testing the constitutionality of laws restricting the teaching of Evolution in Public Schools. And he had an ideal defendant in mind. A local high school science teacher, with presumably nothing better to do over the summer holidays, who definitely agreed with the theory of evolution, who had broadly left-wing political sympathies but in quite a low-key way.

Scopes had been planning on going back to Kentucky for the summer holidays, but he'd changed his plans so he could stay in Dayton a few more days. He had a date with an unidentified woman who he describes as a "beautiful blonde", at a church social. Anyway, it was May of 1925, and he was playing tennis with some of his students, when a boy interrupted him.

"Mr. Robinson says, if it's convenient, for you to come down to the drugstore."

Robinson's drugstore was where everyone in Dayton hung out. This was, after all, the era of prohibition, plus most people here were Methodists, so there weren't any bars and a drugstore with a soda fountain would have to do. And when Scopes got there, there was a crowd of local notables waiting for him. Rappleyea had brought Frank Robinson on board, the owner of the drugstore, who also happened to be the chair of the local school board. Two local attorneys were present - Sue Hicks and Wallace Haggard. Along with Sue's brother, Herbert Hicks, they'd agreed to prosecute (in a bizarre twist they actually declined an offer from the ACLU to pay their expenses - they couldn't have a test case without a prosecution, after all). There was also the owner of the town's other drugstore, and someone Scopes only refers to as "a fellow who worked at the post-office", along with various other local figures, including a justice of the peace and a police constable.

Rappleyea held up a copy of Hunter's Civic Biology, a public school textbook officially sanctioned by the state legislature.

"You have been teaching 'em this book?"

Scopes explained that he had, but only when he was covering for the regular biology teacher. This was enough for Robinson.

"Then you've been violating the law." he declared

And then Robinson finally explained what was going on. Hunter's Civic Biology, despite being officially endorsed by the State of Tennessee as a textbook for teaching biology in public schools, was also banned by the State of Tennessee as a textbook for teaching biology in public schools, because it included a section on human evolution that directly contravened the Butler Act. Rappleyea asked if Scopes would be willing to be the defendant in a test case that would finally put Dayton on the map (with the added bonus of maybe having something to do with defending academic freedom or something like that). As Scopes puts it, in his autobiography:

"I realized the best time to scotch the snake is when it starts to wiggle. The snake already had been wiggling a good long time."

In other words, he said yes.

It wasn't at all clear whether Scopes actually even had violated the Butler Act (as Scopes points out, the actual biology teacher was much more likely to have violated it), but nevertheless, this was taken as a confession. The justice of the peace signed an arrest warrant, and the constable promptly went through the formalities of arresting Scopes. Robinson called the Chattanooga Times, saying

"This is F.E. Robinson in Dayton. I'm Chairman of the School Board here. We've just arrested a man for teaching evolution."

Scopes went back to playing tennis, and Rappleyea wired the ACLU to let them know he had a test case for the Butler Act.

As far as organising a defence went, the first person to join was the law professor John Randolph Neal. In 1923, he'd been one of several faculty fired by the University of Tennessee in an event known as the 'slaughter of the PhDs'. One of them had previously been told by the University President not to assign a book that mentions evolution, likely because the president was worried about a backlash from a state legislature desperate to ban institutions from teaching evolution. The University said that the two events were unrelated. It's possible Neal's firing was also related to his views on evolution, but another possibility is that it was due to his regularly missing lectures, replacing lectures with rants about things in the news, and on several occasions apparently giving all the students in his class 95% on assignments without actually reading them. It goes without saying he was popular with his students, and some former students petitioned to have him reinstated without success.

He had a reputation as a legal expert, though, and was now running his own law school in Knoxville.

This eccentric and extremely scruffy lawyer met Scopes in a Dayton hotel, greeting him with

"Boy, I'm interested in your case and, whether you want me to or not, I'm going to be here. I'll be available twenty-four hours a day."

And that was that. The ACLU needed someone reasonably local involved anyway, so they had little choice but to agree.

The trial date wasn't for a couple of months yet, which left plenty of time for it to become very big news. The controversial Baltimore journalist H.L. Mencken - opposed to America's entry into both world wars, skeptical of democracy as a system of government, a devotee of Friedrich Nietzsche, a free speech advocate and a militant Atheist, he was the one who started calling this affair the Monkey Trial.

And then who should find out about it but William Jennings Bryan. Bryan had actually advised the Tennessee State Legislature not to impose any actual penalty for teaching evolution, to stop exactly this kind of nonsense from happening, but now that they had, and it was happening, he couldn't wait to get involved. He offered his services as a special prosecutor, and the State of Tennessee accepted.

And then Neal got a telegram from none other than Clarence Darrow. The most notorious criminal defence attorney in the country wanted to help with this weird little case.

Throughout his life, Darrow was a proud Atheist, (he called himself an agnostic, but he didn't actually seem to have much in the way of doubt), at a time when that was quite an edgy opinion. He saw Christian doctrines like original sin, and divine grace, as dangerous ideas that encouraged some people to think they were superior to others and had a right to punish them as they saw fit. As for evolution, he thought humans were selfish and arrogant to think they were importantly different from other animals, and the Bible was at least partly to blame for this. He writes very eloquently about it in his autobiography:

"Man is not only the home of microbes, but of all sorts of vain and weird delusions. How does he come to think himself so important? Man really assumes that the entire universe was made for him; that while it is run by God it is still run for man. God is just a sort of caterer whose business it is to find out what men want and then supply these wants. I remember John Roach Straton telling how God saved his life by coming down from heaven and opening his automobile door so that the reverend gentleman could get out and avoid an accident. He regarded it as nothing strange or incongruous that God should act as his chauffeur at that exact instant. The story would have seemed more reasonable if God had kept him alive awhile longer after having taken the trouble to save his life.

From where does man get the idea of his importance? He got it from Genesis, of course, which told of the creation of the earth, first, for Adam and Eve, and for the rest of mankind after that. The sun was of minor significance, made only to light the day for man, and the moon, of still less value, was for lighting the night.

As much as he points out his differences with Bryan in his autobiography, showing off his knowledge of science compared to Bryan's lack thereof, they actually had more in common than Darrow would probably want to admit. Superficially, they'd both grown up in the smalltown midwest, then trained as lawyers, at the same time as getting involved with the Democratic Party. And they both saw themselves as champions of the common man, standing up to big business, they both had intense views on Science and Religion that were deeply tied up with their social, political and ethical philosophies. And importantly for this story, they were both notorious controversialists, who seemed to thrive on pissing people off.

They had history, too. Bryan had first met Clarence Darrow all the way back in 1896, at the Democratic National Convention. Then in 1908 Darrow actually turned down a request to speak on behalf of Bryan's third presidential campaign. Their third interaction came in 1923. An editorial in the Chicago Tribune made fun of the inconsistency of Bryan's views on both Biblical literalism and alcohol.

"The Bible may create the world in six days because Mr. Bryan likes a world thus created, but it may not turn water into wine, because Mr. Bryan does not like wine."

Ten days later, the Tribune printed a rebuttal from Bryan.

"In your attempt to state my views as to the scriptures, you have not in a single instance stated them correctly and, as I have never said anything that could by any reasonable construction justify your misrepresentations, I am at a loss to know whether your mistakes are wilful or merely evidence of indifference as to the facts."

And he goes on to explain at length how his views are in fact shared by the majority of Christians (significant considering the editorial expressed the views of a Presbyterian minister).

And then Clarence Darrow comes in. Two weeks later, Independence Day, the Tribune printed a letter from him, posing a lengthy series of questions to Bryan about his views on the Bible, written very much as a lawyer cross-examining a witness, trying to catch him in an inconsistency. Examples include:

"Was the Earth made in six literal days, measured by the revolution of the Earth on its axis?"

"As there were no ships in those days except the Ark, how did Noah gather all of [the animals] from all the continents and islands of the Earth?"

"Was Lot's Wife turned into a literal pillar of salt for turning back and looking at Sodom and Gomorrah when she was fleeing from their destruction?"

"Under the Biblical chronology, was not Adam created less that 6,000 years ago? Were there not many flourishing civilisations on Earth 10,000 years ago?"

"Did Christ drive devils out of two sick men and did the devils request that they should be driven into a large herd of swine and were the devils driven into the swine and did the swine run off a high bank, and were they drowned?"

"Would you forbid public schools from teaching anything in conflict with the literal statement referred to?"

Bryan had never responded, and now Clarence Darrow couldn't resist an opportunity for a rematch, a debate, in public, reported in national and even international news, on Biblical Literalism, the merits of Darwin's theory of Evolution, and whether it should be taught in schools, in person, with The Great Commoner himself. In terms of the ACLU's actual goals, to create a test case on the constitutionality of the Butler Act, and raise awareness of how obviously unjust it was, it would probably have made more sense for them to go with someone a bit more mainstream, maybe a Modernist Christian, rather than someone who was notorious for his contempt for organised religion and William Jennings Bryan. But on the other hand Clarence Darrow was offering his services pro bono, something he'd never done before in his entire career.

And meanwhile this story was becoming much more of a media phenomenon than Rappleyea could have hoped for. The Tennessee newspapers were mostly negative, predicting that Dayton's brazen bid for attention, grounded in what the Nashville Tennessean called "the doubtful theory that it is good advertising to have people talking about you, regardless of what they are saying", was only going to confirm people's stereotypes of the rural south as a load of backward, uneducated hillbillies. Although the Chattanooga News did attempt to set up another Monkey Trial of their own, to steal Dayton's thunder.

But they were right that it was bringing attention to Tennessee and to the Butler Act. Outside Tennessee, the period while Scopes was awaiting trial saw a proliferation of evolution-based cartoons, most of them not painting Tennessee in a good light (to be fair, Tennessee did pass the Butler Act, so they're kind of asking for people to make fun of them for passing the Butler Act). As an example, the Baltimore Sun had a stereotypically southern figure, in a wide-brimmed hat, baggy trousers and comically-large shoes, holding a sign saying "Fundamentalists ONLY wanted as teachers", while standing on top of an enormous book (or possibly it's an extremely small person on top of a normal-sized book) called "Knowledge". The caption is "A closed book in Tennessee". Another one I like is one from Life magazine, where crowds of Modernists and Fundamentalists shout abuse at each other, while in a tree above them a monkey reminds another "We're above such things". Above the scene there's a timeline of intellectual history, from the Code of Hammurabi, through Moses, the Buddha, Athenian Democracy, Jesus, Muhammad, the Renaissance, the Reformation, Shakespeare, the King James Bible, the US Constitution, and 19th Century science to "1925 AD: State of Tennessee enforces law prohibiting teaching of evolution."" and then "1926 AD: Twentieth Amendment to Constitution of United States prohibits thought; enforcement act compels citizens to elect William Jennings Bryan President, subscribe to doctrines of Methodist Church, join Ku Klux Klan and move to Florida in a body."

Of course, there were also cartoons firmly on the anti-evolutionist side, often from Tennessee. The Commercial Appeal, from Memphis, ran one where Scopes admits to violating the Butler Act, only to hide behind a man labelled "Dangerous Darrow", while a smarmy-looking defence attorney introduces a witness who "Will prove the truth of the Evolution Theory, thereby proving the unconstitutionality of the law." An arrow pointing to the preposterously oversized head of the witness indicates that it is "Formulating a good guess".

The same paper did another where Scopes tells a figure labelled "The East" (who has a passing resemblance to Clarence Darrow),

"They arrested me for bootlegging evolution."

To which The East responds, passionately, fist raised, while a confused Scopes looks on,

"For bootlegging? I'll defend you to the last drop of my bottle - er - I mean blood!"

Which kind of emphasises how the evolution issue was perceived, at least by many anti-evolutionists, as part of a broader culture war, tied up with other issues like Prohibition, and associated with a divide between highly-educated urban elites and ordinary, working-class rural Americans.

Scopes, Neal and Rappleyea went to New York to meet the ACLU. The ACLU were reluctant to have Clarence Darrow involved, for reasons I've already mentioned, particularly that he obviously just wanted to use the case as an opportunity to argue about evolution with William Jennings Bryan, while the ACLU wanted the case to be a more low-key, legalistic affair, dealing specifically with the constitutionality of the Butler Act. But Neal and Scopes thought Darrow would be better able to handle William Jennings Bryan and a chaotic Southern courtroom battle. The ACLU were eventually persuaded, not least because Bryan's involvement meant the whole thing was going to be a sensational media circus whether they liked it or not.

Later, Clarence Darrow visited Dayton with Bainbridge Colby (another attorney, this time appointed by Rappleyea without asking the ACLU - like Bryan, he'd actually briefly served as Secretary of State under Woodrow Wilson). Scopes describes an incident where Scopes, Neale, Colby and Darrow watched a local trial to get a feel for how things were done around here, and Darrow got so angry with the defence lawyer's performance that Scopes and Neale had to physically restrain him from intervening on behalf of the defendant himself. Colby ended up deciding he wasn't cut out for this sort of environment and dropped out. Scopes's original attorney, the local John Godsey, also dropped out, wary of working with a figure as controversial as Darrow.

A remarkably illustrious defence team was eventually assembled. There was Arthur Garfield Hays of the ACLU in charge of the overall strategy. He was near the start of a remarkable career that would include travelling to Nazi Germany in 1933 to support the defence of the Bulgarian communist Georgi Dimitrov, accused of burning down the Reichstag, and heading a commission investigating a massacre of protestors by the police in Puerto Rico in 1937, and at this point he was best known for defending Sacco and Vanzetti, Italian immigrant anarchists who ended up being convicted, on very flimsy evidence of an armed robbery and sentenced to death. Then there was the extremely charismatic Dudley Field Malone, yet another former Democratic party politician, who had run for Governor of New York in 1920, and before that, during the Wilson Administration, he'd actually served as an undersecretary of State under William Jennings Bryan, and now he specialised in dealing with very rich people's divorces.

And of course I've already mentioned Darrow and Neale. George Rappleyea (more interested in publicity than the actual case) had even tried to get the British science fiction author HG Wells on board (despite the fact that he was very much not a lawyer), but he'd turned it down.

For the prosecution, there was obviously William Jennings Bryan, but the other participants were more normal. There was the Tennessee attorney general A. Thomas Stewart, not particularly concerned with the truth of evolution, but more concerned with the fact that Scopes had admitted to breaking the law, and there was the assistant Attorney General Ben McKenzie, a vehement anti-evolutionist, who was nonetheless a great admirer of Clarence Darrow.

As the trial date got closer, Dayton was really starting to get into it. They seemed to have adopted the nickname Monkeyville. Most of the local businesses incorporated pictures of monkeys into their branding. There were souvenir pins being sold that read "Your Old Man's A Monkey". Robinson's drugstore started selling a concoction that they called Monkey Fizz. The local clothes shop, owned by a certain J.R. Darwin, took advantage by putting up a sign that said "Darwin is right… Inside."

This proved controversial, with many locals thinking they should be treating this very serious and important case with the gravity it deserved, and they ended up toning down the silliness (although not completely, by any means). As Scopes puts it, "The theme in Dayton had changed fast, from the monkey business to the God business."

Tourists poured in, and journalists, including HL Mencken, who actually found Dayton much less squalid and backward than he'd anticipated, also some enterprising circus proprietors who brought a live chimpanzee. Christian preachers showed up too, and all kinds of self-publicists, taking advantage of the strange carnival of science and religion. Scopes particularly mentions the flat-earther Wilbur Glenn Voliva, as well as Elmer Chubb, who was in fact entirely fictional, the subject of flyers distributed by Mencken as a prank.

When Bryan showed up from Florida, on July 7, three days before the start of the trial he quickly made himself, as he always did, the centre of attention, expounding on the evils of teaching evolution to just about every organisation in the town, and (according to a second-hand rumour reported in Scopes's autobiography) continually snacking on radishes of all things. He apparently took the opportunity to advertise Florida real estate at the same time as Christian fundamentalism, including during a sermon he gave at a local church.

The town put on a banquet for the Great Commoner, and Scopes was invited too. The defendant describes an incident where he was too full to keep eating, Bryan asked if Scopes was finished eating, and then proceeded to polish off his mashed potatoes. Scopes points out:

"The incident was a good tip-off to Bryan's scientific knowledge. His diet prohibited sugar and starches, yet he didn't seem to realise that this included corn and potatoes, or that there was three times as much starch in potatoes as in the bread he had refused."

After dinner, the guest of honour gave a speech, declaring

"If evolution wins, Christianity goes. Not suddenly, of course, but gradually, for the two cannot stand together. They are as antagonistic as light and darkness; as antagonistic as good and evil."

And even hinting at the 20th Amendment that that cartoon in Life magazine joked about:

"Who made the courts? The people. Who made the Constitution? The people. The people can change the Constitution and if necessary they can change the decisions of the court."

Darrow arrived the following night. He was greeted with much less fanfare than Bryan, but the Progressive Club held a dinner for him as well. Although he started out at a disadvantage, he managed to take advantage of his charisma and charm, and his midwestern small-town background to get the locals to like him in spite of his unusual religious views and controversial legal career.

Everyone was in place now. Monkeyville was all set for the Monkey Trial.

And that's all for now. You've been listening to Science: A Peculiar History. You can find the podcast almost anywhere you get podcasts, or at scienceapeculiarhistory.co.uk. Remember to follow the podcast on Facebook, Twitter, Instagram and Bluesky. The website also has episode transcripts, as well as images and sources for the earlier episodes. If you have any questions comments, corrections or suggestions, you can email admin@scienceapeculiarhistory.co.uk, message any of the social media channels, or use the contact form on the website.

Join us next time (probably not for a while, because I'm going to be away from my computer for a bit), for the start of the Monkey Trial itself.