IN THE AGE OF BLACK LIVES MATTER, it’s impossible to look back at the trial of the Chicago Eight, now more than half a century ago, without being haunted by a single image: that of Bobby Seale, the chairman and co-founder of the Black Panther Party, gagged and shackled on the orders of Judge Julius J. Hoffman because he wouldn’t stop insisting on his constitutional right to legal representation.
The trial as a whole was a travesty, a brazen effort by Richard Nixon’s justice department to demonize the entire counterculture of civil rights campaigners, antiwar protesters, hippies, yippies, and long-haired psychedelic rockers. The eight defendants were accused of conspiring to cross state lines and foment violence at the 1968 Democratic National Convention. But, in reality, they represented distinct groups who barely interacted with each other, and the violence, as later confirmed in an official report, was overwhelmingly the work of the Chicago police acting at Mayor Richard Daley’s behest.
All that was absurd and infuriating enough. The trial is often remembered as the quintessential 1960s confrontation between young and old, between the Vietnam generation and their parents, between pacifism and militarism. The defendants offered a repudiation of the US government’s claims to moral authority at home and abroad and embraced anti-authoritarianism as a posture as much as a policy position.
Many retellings of the trial have focused on its theatrics: yippie leaders Abbie Hoffman and Jerry Rubin blowing kisses at the judge and dressing in a variety of costumes, including judicial robes and police uniforms; supporters in the gallery bearing their breasts and shouting “Right on!” at opportune moments; defendants anticipating Judge Hoffman’s predictable response to prosecution objections by chanting “I sustain the objection!” in unison before the judge had a chance to say it himself.
Seale’s treatment, though, was something else entirely.
His indictment was arguably the most tenuous of the eight because he spent just a few hours in Chicago, and a supposedly incriminating speech he delivered in Lincoln Park hardly differed from others he’d given all over the country without incident. In the words of the historian Jon Wiener, the only reason Nixon’s justice department wanted him there was to “frighten the jury of middle-class white people with an angry Black man.”
Seale’s lawyer, Charles Garry, had requested a six-week delay at the start of the trial due to gallbladder surgery, but Judge Hoffman denied his request. When Seale complained that he had a right to the counsel of his choice, Judge Hoffman tried to insist that William Kunstler, one of the other defense lawyers, was representing him, but he was not.
Each time a witness mentioned Seale’s name, Seale demanded the right to act as his own lawyer so he could respond. Each time, Judge Hoffman said no. Again and again, Seale heard what he regarded as lies, and he shouted in frustration that he was being denied a formal opportunity to call them out.
As the courtroom filled with ever larger numbers of armed US marshals, and Seale’s supporters began to be ejected without explanation, he called one of the prosecutors a “rotten racist pig” and a “fascist liar” for falsely accusing him of inciting the gallery to violence. Shortly after, as he was denied yet another opportunity to cross-examine a witness, he turned to Judge Hoffman and said he was being treated the same way that George Washington and Benjamin Franklin, whose portraits hung above the judge’s chair, had treated their slaves — as someone unworthy of constitutional rights.
Hoffman, increasingly unnerved by such unabashed challenges to his authority, decided he’d heard enough. “I didn’t think I would ever live to sit on a bench or be in a courtroom where George Washington was assailed by a defendant in a criminal case, and a judge was criticized for having his portrait on the wall,” he said. He then turned to the marshals and added, “Take that defendant into the room there and deal with him as he should be dealt with in this circumstance.”
The marshals punched and kicked their way to the defense table to drag Seale away. Shortly after, to the consternation and horror of most in attendance, Seale was brought back bound and gagged. The chains attached to his wrists and ankles clanked as the marshals carried him in on a high metal chair, and the veins in his face and neck bulged under the strain.
Seale, though, refused to be silenced. “I have a right to speak and be heard for myself and my constitutional rights,” he insisted through the gag.
Hoffman remained unmoved. “Mr. Marshal,” he said, “I don’t think you have accomplished your purpose by that kind of a contrivance,” at which point Seale was removed again and fitted with a bigger gag that was tied tightly around the back and top of his head, constricting his circulation even further.
“This is no longer a court of order,” an outraged Kunstler exclaimed as the trial resumed the next day. “This is a medieval torture chamber.”
Once again, Seale found the strength to defy the judge’s will and make himself heard. “This motherfucker is tight,” he gasped, “and it is stopping my blood.”
He might as easily have said: I can’t breathe.
When I sat down to watch Aaron Sorkin’s new movie about the Chicago Eight, I expected him to linger over the excruciating details of Seale’s ordeal and tease out the parallels to our modern-day horrors, starting with George Floyd’s slow killing at the hands of the Minneapolis police last spring. Seale was forced to endure his courtroom gagging over three days, and by the end he’d been punched and kicked so often that he had blood running out of his mouth. Only then did Judge Hoffman call a mistrial in his case — a maneuver that infuriated Seale because he wanted to be heard and exonerated as quickly as possible.
Even at the time, it was clear that Seale’s treatment adhered to certain patterns — of racism, certainly, but also a desire to punish dissent as somehow antithetical to bedrock American values. The authorities resorted to excessive force — “overkill,” as Abbie Hoffman put it — then blamed the people they were targeting when they cried out in indignation. “It is the same thing as last year in Chicago,” Hoffman shouted out in court, “the same exact thing!” It wouldn’t require a filmmaker of great subtlety to extend the “overkill” parallel to the Trump administration, with its overtly Nixonian appeal to law and order, its decision to send federal forces into Portland last summer to create a riot with flash-bang grenades, and its demonization of Black Lives Matter protesters as thugs and criminals.
Yet Sorkin, astonishingly, underplays the Seale episode. The movie shows Seale being gagged the first time, but when the judge instructs him to restrict his communications to a nod or a shake of the head, he does not speak out in defiance; he merely acquiesces. Seale’s mistrial is portrayed as a victory for the defense, whereas at the time it was seen as a ploy to keep the other seven prosecutions on track and forestall the collapse of the entire proceedings. Worst of all, Sorkin calls his movie The Trial of the Chicago 7, thereby relegating Seale to a lesser status than the others, for reasons that are hard to fathom but represent, at a minimum, a missed opportunity.
This is hardly the first movie rendition of the story. Perhaps the most notable is Jeremy Kagan’s 1987 film, Conspiracy: The Trial of the Chicago 8, whose drama and dialogue are drawn entirely from the trial transcripts and feature the Brechtian technique of blending dramatized reenactments of the court proceedings with news footage from Chicago in 1968 and interviews with the real-life participants, who comment on the action as it unfolds. Kagan’s film is proof enough — if proof were needed — that the facts and language of the trial were compelling enough to require no embellishment.
We see a marshal shoving a hand over Judy Collins’s mouth to prevent her singing “Where Have All the Flowers Gone?” We see a British member of parliament, Anne Kerr, describe in impeccably proper tones how she was maced at close range and thrown into a police paddy wagon at the Chicago convention. We see Hoffman and Rubin holding up a drawing of a wine glass to help the judge remember the name of Kunstler’s co-counsel, Leonard Weinglass, whom he kept calling Weinstein, or Fineglass, or Feinstein.
We get the full flavor, too, of the extraordinary courage and eloquence with which many of the defendants addressed the court, knowing that their pronouncements could easily backfire with the jury or induce Judge Hoffman to slap them with one of his many contempt citations. “You represent all that is old, ugly, bigoted and repressive in this country,” Rennie Davis of Students for a Democratic Society told the judge, “and I will tell you that the spirit at this Defense table is going to devour your sickness in the next generation.”
Sorkin has no time for any of this material. Rather, he makes it his mission to polish the dialogue, often with the addition of West Wing–style zingers, and to inject character notes that create a certain tension-fueled momentum but also belittle the protagonists and, in many cases, distort them beyond recognition.
We are supposed to believe that Tom Hayden, one of the most eloquent, scabrous, and witty spokesmen of his generation, was a corduroy suit-wearing square who got his hair cut to look nice for court and couldn’t help rising for the judge even when the defendants had made an agreement not to. (In reality, Hayden raised his fist when first introduced, telling the judge it was his “customary greeting.”) Sorkin makes a mini-soap opera of the tactical disagreements between Hayden and Abbie Hoffman: in his version, Hayden accuses Hoffman of being too addicted to the cheap publicity stunts he can score off the Vietnam War to be truly interested in ending it. There is a kernel of truth in the tension between Hayden and Hoffman, but the details and the characterization are pure fiction.
The depiction of David Dellinger, the oldest of the defendants and, in many ways, their moral conscience, is an even greater travesty. Dellinger had been a conscientious objector during World War II, preferring to serve time in prison than submit to the draft, and continued his antiwar activism long after the trial into old age. One of the stories he liked to tell was how, as an undergraduate at Yale, he’d thrown a punch at a townie at a football game and vowed then and there never to do such a thing again; he later became a devoted follower of Gandhi. Yet, Sorkin depicts him losing his usually unflappable temper and punching a marshal in the courtroom. It never happened.
Do such distortions matter? Hayden, while he was alive, certainly thought they did. According to his widow, Barbara Williams, he began corresponding with Sorkin about the long-gestating screenplay in 2007 and raised vigorous objection to falsehoods that he deemed both wrong and unnecessary. Hayden died in 2016, and three of the other defendants (Dellinger, Hoffman, and Rubin) are no longer with us, so reaction to the finished film has fallen largely to their loved ones. Dellinger’s daughters have told reporters that they found the film upsetting. Williams said of her husband’s depiction: “I don’t think it does harm; it just doesn’t do justice.”
Jon Wiener’s recently reissued book, Conspiracy in the Streets, offers a more straight-ahead assessment of the trial and its significance and is no less compelling for it. “[A]ll the conflicts in America were distilled and then acted out in the courtroom,” Wiener writes in an essay that weaves in much of the vital context that Sorkin omits — not just the Vietnam War, but also the 1968 assassinations of Martin Luther King Jr. and Bobby Kennedy, the generational turmoil they caused across the United States, and Chicago Mayor Daley’s order to police to “shoot to kill” and “shoot to maim or cripple” troublemakers in Black neighborhoods four months before the Democratic National Convention came to town.
Wiener’s book, first published in 2006, is a relatively slim affair — an introduction, an edited transcript of the trial, and an afterword by Hayden. Still, it manages to paint a vivid portrait of an era that feels much closer in 2020 than it ever did midway through George W. Bush’s second term. Rennie Davis’s startling rebuke of Judge Hoffman toward the end of the trial illuminates how a reactionary generation was refusing to die even as a restive younger generation was pushing to come into its own. Much the same observation could be made of the Trump era, whose authoritarian impulses and white supremacist sympathies have sought to suppress a dynamic multiethnic, multicultural new America coming to the fore in former segregationist bastions like Georgia, Texas, and North Carolina. Shortly before November’s presidential election, Wiener wrote that he hoped Trump hadn’t watched Sorkin’s movie because it might give him or his enablers ideas of how to keep that suppression going.
One of the themes that Wiener illuminates, and Sorkin ignores, is the fear that Nazi-style jackbooted thuggery could become the norm in the United States. World War II was fresh in the memories of most people who were following or participating in the trial, so this fear was much more than an abstract exercise in tarring political adversaries with the Hitler label. Many on the defense side — Kunstler, Weinglass, Hoffman, Rubin, and Lee Weiner — were Jews, and their Jewishness seemed to set something off in Judge Hoffman, who was himself Jewish but had spent decades ingratiating himself with Chicago’s Republican country club set. Abbie Hoffman took particular pleasure in rubbing this in, insulting the judge whose name he shared as a schtunk (stinker) and a schande vor de goyim (shame in front of non-Jews).
Again and again, Hoffman and Mayor Daley evinced a particular aversion to liberal Jews who sided with the Civil Rights movement and joined forces with Black activists in opposition to Vietnam, thus displaying two facets of American bigotry at the same time. When Abraham Ribicoff, a liberal senator from Connecticut, rose on the convention floor to denounce “Gestapo tactics on the streets of Chicago,” Mayor Daley, on camera but off mic, was seen yelling back, “Fuck you, you Jew son of a bitch, you lousy motherfucker. Go home.”
Not only did Daley’s police have orders to maim and kill, but they took those orders seriously. “Unrestrained and indiscriminate” was how the federal government’s Walker Report characterized their behavior during the convention. They swung their nightsticks like baseball bats at the heads of peace activists and unfortunate bystanders, and they almost always attacked first. Anne Kerr, the British member of parliament who’d come to the convention as an observer, had problems with her eyes and one of her legs for the rest of her life. The protest numbers weren’t overwhelming either. In large part because of Mayor Daley’s stern warnings, only a few thousand came in from out of state, and they were outnumbered by the police, Army, and National Guard.
The trial was certainly about the right to dissent and the First Amendment, as Kunstler made clear in his opening statement and at every opportunity thereafter. But it was also, more profoundly, about an attitude of mind and where such an attitude could lead if left unchecked. David Dellinger put it perhaps most devastatingly when he told the judge:
You want us to be like good Germans supporting the evils of our decade, and then when we refused to be good Germans and came to Chicago and demonstrated, despite the threats and intimidations of the establishment, now you want us to be like good Jews, going quietly and politely to the concentration camps while you and this Court suppress freedom and the truth.
By the time Judge Hoffman’s court was through, the defendants and their two trial lawyers, who were cited repeatedly for contempt, all faced years in prison. They ended up winning the argument because Judge Hoffman’s performance was ripped to shreds on appeal, and their convictions and sentences were thrown out. But it was far from obvious that they could count on such an outcome while the proceedings were in full swing. The stakes Dellinger laid out were no exaggeration.
Those same stakes are with us still today. Trump may be defeated, but Trumpism commands the support of more than 74 million voters, including a hardcore willing to storm state capitols and the US Congress in defiance of all democratic norms. Where could such a stubborn reality lead us? Nancy Pelosi, not a politician known for her hyperbole, referred to the federal agents in Portland last summer as “storm troopers”; one of the insurrectionists who burst into the US Capitol last week wore a “Camp Auschwitz” T-shirt adorned with a skull and crossbones. We are not out of the woods yet.
Andrew Gumbel is a Los Angeles–based journalist who writes regularly about politics and criminal justice. He is the author, most recently, of Won’t Lose This Dream: How an Upstart Urban University Rewrote the Rules of a Broken System (The New Press).
Banner image: “Bobby Seale at the Conspiracy Trial after the 1968 Democratic Convention, Chicago” by Frank McMahon is licensed under CC BY-SA 3.0.