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The Case Against Microsoft.

Fortune magazine Editor-at-Large, Joseph Nocera, talks about the industry and consumer implications from the on-going trial of Microsoft. The U.S. Justice Department alleges the Microsoft engaged in illegal predatory practices against its competitors. Nocera has been covering the trial for Fortune. Nocera is author of "A Piece of the Action; How the Middle Class Joined the Money Class" by Simon and Schuster. (This book is out of print) He also is a regular business commentator for Saturday Weekend Edition on NPR.

33:45

Other segments from the episode on July 12, 1999

Fresh Air with Terry Gross, July 12, 1999: Interview with Joseph Nocera; Obituary for James Farmer.

Transcript

Show: FRESH AIR
Date: JULY 12, 1999
Time: 12:00
Tran: 071201np.217
Type: FEATURE
Head: The Microsoft Trial
Sect: News; Domestic
Time: 12:06

TERRY GROSS, HOST: This is FRESH AIR. I'm Terry Gross.

There's plenty at stake for computer users and the computer industry in the Microsoft antitrust case. But let's face it, the case has dragged on for so long it's been hard to keep up with it. So we asked Joseph Nocera to bring us up to date.

He's covering the story for "Fortune" magazine. He's also business commentator for NPR's Saturday Weekend Edition with Scott Simon.

Both Microsoft and the government have presented and cross-examined witnesses. That part of the trial wrapped up late last month. Closing arguments are set to begin September 21, then comes the judge's decision which may be followed a lengthy appeal.

Now that Nocera has had a couple of weeks away from the courtroom, I asked him to reflect on what's at stake in the trial.

JOSEPH NOCERA, EDITOR-AT-LARGE, "FORTUNE" MAGAZINE; AUTHOR, "A PIECE OF THE ACTION: HOW THE MIDDLE CLASS JOINED THE MONEY CLASS": Well, I think the further away you get from it, the more confusing it is. When you're caught up in the moment, when the trial's going on and you're engaged in it, you wind up thinking that this is the most important thing going on in the universe; and certainly it is not.

But it is important, and the problem in terms of trying to figure out how important it is, is that you don't know how it is going to end. So, you know, question number one is what will the technology industry look like two or three years down the line? And the answer is we don't really know.

Question number two is, you know, will Microsoft's power, will the power of the Window's operating system, which is what the case has always been about, be diluted just through the sheer change that is taking place in technology; with the Internet, with other products. Or -- or if you didn't have this government intervention would that power actually be strengthened and allow Microsoft to control even more of the technology industry?

And that is what the case has always been about -- Microsoft's power, Microsoft's ability to control the industry through Windows.

GROSS: What I'm getting from you is that the playing field has changed so much and is continuing to change at such a rapid pace, that in some ways some of the issues brought up in the trial might be almost be almost out of date by the time trial is resolved.

NOCERA: Well, one issue in particular, which is very much at the core of the case is out of date, and that is the issue of browsers. This case began as a case about Internet browsers. When Microsoft took its browser, Internet Explorer, and folded it into its operating system -- made it a part of its operating system -- was that a predatory act that was designed to drive its chief competitor, Netscape, which made a competing browser, Navigator, out of business? That was the issue.

If you're looking backward that's a really important issue. And if you're looking forward, it's a non-issue now. Netscape has now been bought by AOL, and Microsoft's browser now comes as part of the operating system. That's just the way it is.

And everyone, I think, who buys computers accepts that, everyone in the industry accepts that. That's just the deal. And so, you wind up thinking -- at least I wound up thinking -- that much of the importance of this case is defined by whether you're looking back or looking forward.

And Microsoft argued strenuously that one should only look forward. And the government, I think, argued equally strenuously, although never -- nobody ever put it like this, is that you have to look past because Microsoft's actions in the past will tell you how they will act in the future, and if you don't change their behavior they will mold the future the way they want.

That the same thing that happened to Netscape will happen to other company's in the future that get into Microsoft's target -- target -- get into Microsoft's sights.

GROSS: What were some of government's other most important points in the trial?

NOCERA: Well, it's funny, because the trial began as a browser case, and the -- and very specifically, the government alleged that the act of putting Internet Explorer into Windows was a predatory, illegal act. It was a tie, as they call it.

And tying cases, it turns out, as one of the many things I learned about antitrust law, tying cases are very difficult for the government to win. It's like saying that when car manufacturers put car radios into cars, which is also a form of tying, you're tying a product, a radio, into a car. That that's a predatory illegal act designed to drive the radio manufacturers out of business. Well, nobody would buy that.

So, what happened was there was a court of appeals decision in June that was tangentially related to the government's action, which pretty much said to the government, if you keep going down this tying road you're going to lose the case.

So, the government had a couple of paragraphs in their complaint against Microsoft that kind of, it was a kitchen sink -- couple of kitchen sink paragraphs that just basically said, you know, they've taken other predatory actions too.

And so what the government did between June, when that court of appeals decision came down, and October, when the case began, was they really tried to shift the focus of the case from just a Netscape case to Netscape being one of a series of actions that showed that Microsoft is a monopolist that uses its Windows monopoly to force other companies to take actions that are Microsoft's best interest but necessarily in the consumer's best interests or in the industry's best interest.

And so, instead of just being -- revolving around Netscape, Netscape was certainly a big part of the case. You had representatives from Apple saying that Microsoft forced them to do things they didn't want to. You had somebody from Intel, which is Microsoft's great ally coming forward and giving a very specific example of ac case where Microsoft came in said, we want to shut down this project because we view this the project as anti-Microsoft -- which Intel did.

You had people from Sun Microsystems coming in and saying Microsoft is trying to do with the Java technologies -- Java, as you know, is the computer language for the Internet -- that Microsoft is trying to do the same thing with Java that they did with Netscape.

And so you had these series of companies coming forward and saying, see, Netscape isn't an isolated example. They've done it to us, they've done it to Intel, they've done it to Sun. And so you have a whole range of predatory practices, according to the government, that show -- the government's really trying to show is that Microsoft's behavior needs to be constrained.

And the whole case revolved around, you know, is Microsoft's behavior so predatory, so bad, so monopolistic that it has to be changed?

GROSS: What did you think was Microsoft's best defense of itself?

NOCERA: Microsoft had one, I think, very compelling defense. And they -- that was they -- they consistently said, where is the consumer harm? Show me where this is a bad thing? And that was pretty powerful.

The government economist, Franklin Fisher (ph) from MIT, actually wound up saying that he couldn't see any particular consumer harm in Microsoft's actions which was devastating. And he wound up coming back on the stand as a rebuttal witness in no small part so he could contradict himself and try and list all the ways there was consumer harm.

But, you know, antitrust law has evolved in such a way that it's pretty pro-big company, and it's pretty hard to make a serious antitrust case against a big company. And that's in large part because judges now do not necessarily take the position that big is always bad and that a dominant company needs to be broken up.

Their whole -- the whole focus now has become about consumer. Is the action -- does -- is the ultimate beneficiary of the action a consumer, or is the consumer hurt? And if you can't show consumer harm, chances are you're going to win the case.

And the government did try to find examples of consumer harm, but really that was Microsoft's strongest argument.

GROSS: So, what were the examples of consumer harm?

NOCERA: Well, you know, this sort of gets you into the realm of the theoretical. In the instances of consumer harm, the government couldn't really say, well, consumers are paying higher prices for Windows than they would have otherwise because you can't really prove that, you can't really show that.

So, it would really have to do with -- what they really would have to say was, consumers were deprived of choices they might otherwise had if Microsoft was a more benign corporation. And other competitors weren't so afraid of doing things that stepped on its toes.

And that's really -- you know, you can buy that argument or you cannot buy it. And I actually think the judge in this case is going to buy the government's argument. By the end he was pretty much showing his cards that he was going to rule against Microsoft, and I think he will.

But the honest answer is the government couldn't really show tangible consumer harm, but it was more like, well, Intel was putting out this technology that might have been better for consumers if Microsoft hadn't forced it to shut it down. But we don't really know that for a fact because it never got to market.

GROSS: Right. If you're just joining us, my guest is Joseph Nocera. And he's editor-at-large for "Fortune" magazine, and he's been covering the Microsoft trial for "Fortune." He's also a regular business commentator for Saturday Weekend Edition on NPR.

Joe, let's take a short break here and then we'll talk some more about the Microsoft trial and its repercussions.

This is FRESH AIR.

BREAK

GROSS: Back with Joseph Nocera. He's editor-at-large at "Fortune" magazine, and he's been covering the Microsoft trial for "Fortune." He's also a regular business commentator for Saturday Weekend Edition on NPR.

In the journal that you've been writing for "Fortune" about the Microsoft trial you've pointed out that one of the more -- well, just funny things that happened at the trial was that in trying to -- that Microsoft in trying to prove that it doesn't have a monopoly and isn't totally bullying its competitors was basically advertising its competitors strengths and trying to show how strong its competitors really well -- really were. Basically doing ads on behalf of its competitors.

NOCERA: It's true. It was funny. It was weird. Not only would they do them from the stand, they would actually produce videos. The one that really stands out in my mind is one for Linux, which is a competing operating system that is just beginning to emerge. And there'd be, you know, there'd like a narrator and he'd say, you know, "we want to show the court how easy it is to use the Linux operating system."

LAUGHTER

And they'd run it. And it said, you know, "look it has a browser." And you'd think, just like Windows. And they'd say, "look, you can get e-mail." And, you know, a reporter sitting behind me after one of these videos -- he leaned over and he said, "huh, I wonder if they can use that as a product endorsement."

LAUGHTER

You know, there was so many -- there was much about this trial that was surreal.

GROSS: What else?

NOCERA: You had the whole video thing going, which, you know, they would introduce videos all the time. But then you would also have this stuff where you'd have these incredibly inflammatory, nasty e-mails that had been -- that the government had gotten from Microsoft's files. Many of them, by the way, written by Bill Gates. Which was the most surreal thing of the whole trial, which we'll get to in a minute.

And you'd have a top Microsoft executive on the stand and the e-mail would say something like, you know, "I do not want us to work with Sun. They're the enemy. We want to kill them! They aren't..."

And David Boies, the government prosecutor, would look at the witness and say, "now, it looks to me like he's saying we want to put them out of business. Is that how you read them out?" And the witness would say, "oh, no, no, no, no. He didn't mean that at all. He meant, we just want to look for ways that we can cooperate with them because we think they're the greatest software company in the world."

And everybody would burst out laughing, the judge would roll his eyes.

LAUGHTER

Boies, who is the government prosecutor, would turn around with this big grin on his face.

And then you had the whole Bill Gates deposition, which dominated the first portion of the trial and was by far the most surreal thing I have ever seen in my entire life.

GROSS: Well, let me just point out something obvious here, which is, you know, in the same period of time when we had the now famous Bill Clinton video deposition, you know, you were watching the Bill Gates video deposition.

NOCERA: Right. As a matter of fact, the whole impeachment thing was going on at the same time as the Microsoft trial, and, you know, we were kind of -- we were kind of Microsoft trial snobs, those of us covering the trial.

LAUGHTER

We thought we were -- we were the highbrows and those lowbrows were up there on Capitol Hill covering the impeachment hearings.

GROSS: Talking about sex.

LAUGHTER

That's right.

NOCERA: That's right.

GROSS: You were above that.

NOCERA: We didn't talk about sex, we talked about market share.

LAUGHTER

On some level it wasn't that much different.

LAUGHTER

You know, they would show these videos, you know, they had taken 20 hours of video with Bill Gates. And David Boies actually told me later that after the first day of the video of the deposition, which he conducted in Seattle, he came back to his hotel and told his troops that this was, you know, he couldn't have had it -- asked for a better deposition. Because he was so awful.

LAUGHTER

And they knew that they would be able to play it in court and Bill Gates would look like an idiot, which of course he's not. But he turned the whole thing into a word game exercise. And so, Boies -- David Boies would say, you know, "what is the market share of Internet Explorer, your browser?"

And he'd say, "market share? What's market share?" And it was really on that level. And once they actually got into a 10-minute debate over the phrase "pissing on."

GROSS: What was the debate?

NOCERA: There was an e-mail. It, you know, somebody had written Gates a memo saying, "we're going to piss on them. If they get out of line, we're going to piss on them;" something like that. And it took Boies 10 minutes to get Gates to concede that the phrase was -- did not mean "let's be nice to them."

GROSS: Why did Microsoft feel that Bill Gates shouldn't testify in person in court, and should rather just do a video deposition?

NOCERA: Well, you know, as part of any lawsuit you always depose everybody who's involved whether they're going to be a potential witness or not. And then you decide, you know, who's going to be your witnesses and who's just going to put in deposition testimony and so on.

So there was never a question of whether he was going to be deposed or not. The question was could he have changed the dynamics of the case by deciding to testify?

And it's never been clear to me why they didn't want him to testify, except perhaps because his deposition was so bad that Boies would have had a field day going back to his deposition and saying, "but didn't you say this? Didn't you say this?" And sort of showing him up as a liar, which -- you have to remember the government got really lucky in its choice of prosecutors. It was able to hire the finest corporate litigator in America today to handle its case.

This is not somebody who's been -- this guy is great. And he made every witness look bad. And he would have made Bill Gates look bad. Having said all that, I still believe that the only way -- there came a point when it was clear that Microsoft was losing the case, when it was just getting killed everyday in court.

And I came to believe that there came a point when the only way Microsoft was going to save itself would be to put Bill Gates on the stand and have him say, you know, have him be the real Bill Gates not the Bill Gates engaged in a word game exercise with a government prosecutor. And have him look at the judge and say, "your honor, you're right. It was a terrible deposition. And, you know, I handled it badly. I didn't lie outright, but I handled it badly and I -- but let me tell you about the real Microsoft and the real competition we face and all the good we've done and the importance of Windows being the operating system standard."

And I -- to this day, it baffles me that Microsoft did not choose to do that. But then when you look at their defense there were -- much of it was ultimately extremely baffling.

GROSS: You obviously were very impressed with David Boies, who was the government's chief prosecutor. What was so impressive about him?

NOCERA: Well, he is, I think, the legal equivalent of a jazz musician. he has a phenomenal memory. So, he has -- in his mind he knows where all the evidence is, and he can sort of pluck it when he needs it. He's very theatrical, so you're always paying attention to him; you never feel bored.

And he's willing to take risks. There's a legendary story about him that he was -- he was -- he was defending a company in a contract dispute and he got the lead witness for the other side on the stand. And he asked -- his first question, which he felt was a pro forma question, was "have you read the contract?"

And the witness said, "no." This was a contract dispute. And he looked at the judge and he said "I have no further questions, your honor."

LAUGHTER

And he did some very similar things in the Microsoft trial. There was one -- the classic example is when a witness -- there's a very important Netscape-Microsoft meeting where Netscape alleged that Microsoft tried to divide the market, which is illegal, and Microsoft denies it.

And so the lead Microsoft person in that meeting is on the stand and Boies has ripped him up one side and down the other, and he has been more or less resuscitated on redirect by the Microsoft -- by the Microsoft lawyer, and Boies gets up to do his re-cross. So, he's got one more chance to sort of damage his credibility before the guy gets off the stand.

And the guy -- they start talking about something else, and the guy says something that's clearly not true. Although it's a negligible point, but it's clearly not rue. And Boies just looks up at him and he says, "you don't believe that do you, sir? You're just making that up."

And the guy said, "ah, ah, ah, ah, ah." And then of course Boies knew exactly where the document was that proved that he was lying and he handed it to him, and the guy didn't even wait for a question. He just said, you know, he said, "I stand corrected." And Boies said, "I have no further questions." And the guy went off the stand and, you know, I'd be surprised if he's still at Microsoft.

GROSS: Joseph Nocera is editor-at-large for "Fortune" magazine. We'll talk more about the Microsoft trial in the second half of the show.

I'm Terry Gross and this is FRESH AIR.

BREAK

GROSS: This is FRESH AIR. I'm Terry Gross.

Back with Joseph Nocera. We're talking about the Microsoft antitrust case. Closing arguments are scheduled to begin September 21. Nocera is covering the trial for "Fortune" magazine. He's also business commentator for NPR's Saturday Weekend Edition with Scott Simon.

So, what's next in the Microsoft trial?

NOCERA: Well, we still have a long way to go. The judge, his name is Thomas Penfield Jackson, who was actually, I thought, a pretty good judge, has devised I think a very clever scheme to try and force the two sides to settle. We haven't talked about that much.

There have been several kind of half hearted attempts to settle the case that have gotten nowhere because the two sides are so far apart on what they think needs to be done as a remedy for Microsoft. Microsoft thinks it really needs just a tiny little slap on the wrist, and the government basically believes that the Windows operating system needs to be neutered, for lack of a better word.

So -- but the judge has done something extremely unusual. He has set up a system where there will be two closing arguments, and I don't think -- I've never heard of this before. One is going to be a series of closing arguments just on the facts.

And then he's going to rule on the facts. And that will be the factual disputes: did Microsoft attempt to divide the market or not with Netscape? You know, did they try and shut down Intel's project or not? So that that there'll be a factual closing argument phase.

And then he'll rule on the facts, and then there'll be a law closing arguments fact -- closing arguments phase and he'll rule on the law. And I believe the reason he's done it this way is so that he can show his hand on the facts without having to make a final decision on the law, thus helping everybody move towards a settlement. Which I think is what he really wants.

GROSS: Why do you think he wants a settlement as opposed to a decision?

NOCERA: A decision is fraught with a certain kind of peril. Suppose -- almost everybody believes that he will rule against Microsoft. he actually used the word "monopoly" a couple of times towards the end of the case. So he rules that Microsoft is a monopoly that has abused its monopoly power. Then what?

What do you do about it? That has always been the real sticking point of this case. Nobody really can talk about what the remedy should be because nobody really knows what an appropriate remedy will be. Nobody believes -- nobody involved in the case -- believes that Microsoft should be broken up as a result of this case because the evidence just isn't strong enough to justify that kind of remedy.

But short of that, how do you -- how -- Windows is a standard in the computer business and it's not going to go away. And Microsoft owns the intellectual property rights to that standard. And to -- you can't take away its intellectual property. It's just the most baffling aspect of the case. What do you do about it?

And I think the judge wants to avoid two things. One, he would like to avoid being overruled by the Court of Appeals which may or may not happen. But that's a certain peril for him. And second of all, I don't think he really wants to try and figure out what to do, because it's -- because it's so fraught with peril. It' s just really, really hard to figure out.

Also, you know, there may be a new president by the time this case is settled, and who knows how he feels about the Microsoft case. And there are all these imponderables, and a settlement just kind of wipes that all off the table. It gets it of the books. And if you're the judge you go on to the next case.

GROSS: Do you think that this trial is having an impact on how the computer business world is proceeding?

NOCERA: Oh, you bet. No question. There, you know, even if Microsoft were to win the case, its behavior has already been constrained. You know, I don't know if you remember the IBM -- the famous IBM 13-year antitrust case where -- where -- which ended -- by the way, it's where David Boies made his reputation defending IBM, ironically enough.

But the great upside of that case is the government dropped it in the early '80s when Ronald Reagan became president. But by the time the case was dropped IBM's monopoly power had disappeared because all the behaviors that the government was trying to change had changed. Because they feared the government and because of the case.

Well, that's already happening with Microsoft. Computer manufacturers, who are the ones who are really under Microsoft thumb -- Microsoft's thumb, excuse me -- have much more freedom today than they had when this case started to set up their computers the way they want, to offer Netscape as an alternative to Internet Explorer.

Dell actually will load a Sun operating system onto its computers if you ask for it. It's hard to believe that they would be allowed to do that -- they would be allowed to do that if Microsoft was not under attack by the government.

There's a second way I believe that it's changing the computer industry, which is that, you know, here we have this giant explosion in the Internet: Yahoo!, AOL, Amazon.com -- where is Microsoft in this Internet business? The answer is they're nowhere to be found.

Certainly they have the browser and they have the Microsoft Network, but they're not really big the way a Yahoo! is or an Amazon is; they're not in the auction business. All these businesses that they're not in, but which they could buy their way into in five minutes if they wanted to.

And I firmly believe -- and I believe -- I've talked to some CEOs -- I've talked with some people involved in Internet companies, and they believe that the reason Microsoft is not making a full-fledged assault on these Internet businesses is because they're worried about the government -- how the government will react.

GROSS: Mmm-hmm. Mmm-hmm. Well, Joe Nocera, you have been a guest on FRESH AIR several times in the past, and I usually end our interviews by asking you something about the stock market, which you've been following and writing about for years.

LAUGHTER

Now, over the past few years when we end our conversations you've warned that the stock market, although it's been going up...

NOCERA: ... Terry, you're not going to do this.

LAUGHTER

GROSS: Might at any moment really disappoint people, especially those who are new to the stock market. So, where are you now?

LAUGHTER

NOCERA: Well, Terry, that's -- I have a very elegant way of putting this; I call myself a "behavioral bear." Which is that people don't necessarily behave rationally about the market even when it's going up. And so see, you're probably losing money -- no.

LAUGHTER

I believe -- where am I now? You know, I'm in the stock market just like everybody else, and I have to be there just like everybody else. And -- but I'm not in Internet stocks. I believe that the Internet is a really important and powerful phenomenon. It -- you know, it may change the way most businesses are done. I believe all of that.

But I don't necessarily believe that these stocks in particular can stay where they are. And I think -- you know, I do believe that with the Internet we are in sort of a mania phase, and even the companies that will turn out to be real -- and certainly AOL is one of those, but Yahoo! is probably one and eBay and a handful others -- CNet. I believe that those stocks will eventually come down to Earth.

I mean, there are price earnings radios of over 1,000, where the market in general is at price earning ratios of 35 to 40. So, you know, as for the rest of the market I throw up my hands. I say it doesn't make any sense particularly.

You know, we are in a good economy and inflation is certainly under control and interest rates are low, but, you know, corporate earnings are not what they were three or four years ago. And you just wind up thinking it's hard to understand completely what is driving this market.

And I guess as somebody who does follow this and cover this and will continue to write about it, I have taken -- I have basically thrown up my hands and saying I can't figure it out and I'm going to stop trying.

LAUGHTER

GROSS: Well, I think that's actually very rational.

LAUGHTER

NOCERA: Thank you.

LAUGHTER

GROSS: Well, Joseph...

NOCERA: ... if I come on in two years and it's at 15,000 please don't ask me this again.

LAUGHTER

GROSS: I'm not promising anything.

NOCERA: All right.

GROSS: Well, Joe, thanks a lot for talking with us. Always a pleasure to have you on the show.

NOCERA: Oh, thanks a lot, Terry.

GROSS: Joseph Nocera is editor-at-large for "Fortune" magazine.

This is FRESH AIR.

This is a rush transcript. This copy may not
be in its final form and may be updated.

TO PURCHASE AN AUDIOTAPE OF THIS PIECE, PLEASE CALL 877-21FRESH
Dateline: Terry Gross, Washington, D.C.
Guest: Joseph Nocera
High: Fortune magazine Editor-at-Large, Joseph Nocera, talks about the industry and consumer implications from the on-going trial of Microsoft. The U.S. Justice Department alleges that Microsoft engaged in illegal predatory practices against its competitors. Nocera has been covering the trial for Fortune. Nocera is author of "A Piece of the Action; How the Middle Class Joined the Money Class" by Simon and Schuster (this book is out of print). He also is a regular business commentator for Saturday Weekend Edition on NPR.
Spec: Computers; Technology; Trials; Internet; Business; Lifestyle; Culture; Joseph Nocera

Please note, this is not the final feed of record
Copy: Content and programming copyright 1999 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1999 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: The Microsoft Trial

Show: FRESH AIR
Date: JULY 12, 1999
Time: 12:00
Tran: 071202NP.217
Type: FEATURE
Head: Tribute to a Civil Rights Leader
Sect: News; Domestic
Time: 12:40

TERRY GROSS, HOST: James Farmer, one of the architects of the Civil Rights movement, died Friday at the age of 79. He was the last surviving major Civil Rights leader of his generation. Farmer co-founded CORE, the Congress of Racial Equality, which was one of the first Civil Right's groups to apply Ghandi's principles of non-violent resistance.

Farmer's non-violent demonstrations were answered with attacks by white mobs and mass arrests of CORE members during the freedom rides in the early '60s. CORE's interracial group of freedom riders rode buses through the southern states to see to it that the Supreme Court's decision banning segregation in bus terminals was actually being enforced. The resulting drama focused national attention on the violence of Southern racism.

I spoke with James Farmer in 1985, and he told me that his mother believed that Farmer's father tried to time his death to coincide with the most dangerous part of the freedom rides.

JAMES FARMER, CO-FOUNDER, CONGRESS ON RACIAL EQUALITY: Yes, before we left -- before the freedom riders left Washington -- this was May 4th of 1961 -- I went to visit my father who was a terminal patient of cancer in a Washington, D.C. hospital. Told him what we were going to do, how we were going to do it, and where we were going; we were going through Virginia, the Carolina's, Georgia, Alabama, through Mississippi and hopefully arriving in New Orleans.

He, being a Southerner himself and a scholar, thought for a while and says, "well, I think you'll be all right in Virginia and the Carolinas, maybe even in Georgia, but not in Alabama. They'll take a pot shot at you there. I don't think you'll reach Mississippi. If you should reach Mississippi then you'll think that Alabama was purgatory and Mississippi is hell, but you certainly won't reach New Orleans."

He said, "I wish you wouldn't go, but I know you will." Now, after I left, I had left my father a copy of the itinerary of course, my mother says that each day he would pick up my itinerary and look at it to see where I was. "Oh, he's in North Carolina, that's all right."

But when he picked up the piece of paper with my schedule on it and saw, "uh-oh, he's just about to go through Alabama," then he just let go and died. She believed that he had been holding on to a tenuous thread of life until this time so that his death could bring me back before going through Alabama. She believed that until her death five years later. I don't know whether that's possible or not, but it apparently worked.

GROSS: Alabama was one of the most violent stops.

FARMER: Yes.

GROSS: Do you ever look back on that and wonder if would have survived had you been on the bus when it went through Alabama?

FARMER: Yes, of course. I'm quite confident that I would have been killed, that I would have died. You see, I had scheduled myself to lead the testing in the waiting rooms in the bus terminals in Alabama because this was going to be a critical one.

I was going to lead the testing. I was going to enter first the white waiting room at all of the stops in Alabama. I was going to make the decisions that had to be made on the spot there.

But when I was called back to Washington to bury my father just hours before the bus left Atlanta to go through Alabama, I left to Jim Peck (ph), this then-young white freedom rider in charge of the testing, he was almost killed in Birmingham. And I feel quite certain that I would have been killed.

But then in Montgomery -- I didn't want to go because after what had happened in Alabama I thought going into Mississippi would be worse. You know, Mississippi at that time had the reputation of being the ultra -- the apex of racism. And I thought that what had happened in Alabama then would be only a prelude to what awaited us in Mississippi.

Yet the young freedom riders, SNCC (ph) young people -- Student Non-violent Coordinating Committee -- from Nashville; young CORE people from New Orleans had joined forces in Montgomery to take the ride into Jackson. And I was there, and they presumed I was going with them since it was my show; nobody asked me if I was going, they just assumed it.

But I had other thoughts, because -- well, my father had just died. And two deaths in the family in a week would be a bit much for my mother and for the family. Furthermore, I'd been away from my office for six weeks and mail had piled high. And people needed answers to their letters and CORE had to raise money to keep its activities going, including the freedom ride. And I was needed to help in that process.

Oh, I cataloged all of these excuses in my mind, but the bottom line was that I was scared to death. And that's the reason I didn't want to go. And I was determined not to go because I wanted to live. I did not want to die.

And I went down that morning with the young freedom riders who were going to board their buses for the journey from Montgomery, Alabama to Jackson, Mississippi. I went down really to say goodbye to them and wish them Godspeed.

I remember reaching through the open window of a bus to shake hands with a 17-year-old CORE girl from New Orleans, Doris Tassle (ph). I said, "well, Doris, have a safe journey. And after the freedom ride we'll get together and we'll discuss the next step."

She looked at me in disbelief. She said, "but, Jim, you're going with us aren't you?" I said, "well, no, Doris, you see..." And then I went through the whole litany of excuses which I had prearranged in my mind. She shook her head and said, "Jim, please."

Well, that was too much, I had to go then.

GROSS: Well, you encountered quite a lot of trouble on that ride. You were all arrested. What grounds were you arrested on?

FARMER: There were three charges: disobeying an officer, disturbing the peace and inciting to riot. We were arrested by Captain Ray (ph), who was the chief of police of the city of Jackson, when he ordered me to move on.

And I asked where -- the young lady with me, who had locked arms with me, she and I were about to go into a restaurant there in the waiting room -- the white waiting room -- for dinner. And other freedom riders followed the two of us and were similarly told to get into the paddy wagon. And we were taken to jail.

Then I sent orders by my lawyer to my CORE staff in New York to begin immediately recruiting freedom riders, white and black from all over the country sending them into Jackson to try in true Ghandian fashion to fill up the jails. We were not going to bail out. We were going to stay in as long as we could stay in and still file an appeal, and that turned out to be 40 days and 40 nights.

GROSS: We're listening to a 1985 interview with James Farmer, one of the architects of the Civil Rights movement. He died Friday at the age of 79. We'll hear more after a break.

This is FRESH AIR.

BREAK

GROSS: Let's get back to our 1985 interview with James Farmer. When we left off he was describing the time he and a group of freedom riders were jailed in Jackson, Mississippi for 40 days and 40 nights. They wanted to fill the jails not bail out.

Did the jails want you out?

FARMER: Yes, they quickly found out that we were not going to bail out right away. And then what they wanted to do was to make it so uncomfortable for us that we had wished we had never come, and would stop others from coming.

They did not physically beat us, though they tried once at one place. And that backfired because I got one young man bailed out and he called the FBI and he also held a press conference. So, that stopped the physical brutality.

But they did such things as putting so much salt in the food that we couldn't eat it. Many of us were chain smokers and we were denied any cigarettes, but the guards would walk by our cells puffing on cigarettes and blowing the smoke into our cells at great length.

We were students or readers, they denied us any newspapers or any books -- refused to let any come in. Refused to let us have any paper or any pencils to do any writing whatsoever. We were denied any visitors except our lawyer. This was psychological brutality.

GROSS: You were also banned from singing at one point.

FARMER: Well, they tried to stop us from singing. We sang -- we sang all the freedom songs we knew, and we made up new ones. I made up one song, wrote one song -- actually it was -- I put new words to an old labor song, "Which Side Are You On?"

GROSS: What were the words you wrote.

FARMER: Well, these words -- I can't sing, so I won't even try to sing it -- said,

"Come all you freedom fighters
Good news to you I'll tell
Of how the good old freedom ride
Has come in here to dwell

Which side are you on
Which side are you on
Which side are you on
Which side are you on

They say in Hines (ph) County -- where Jackson was, Jackson, Mississippi --
No neutrals have they met.
You're either for the freedom ride
Or you're Tom for Ross Barnett (ph) -- he was the governor of Mississippi

And my father was a freedom fighter
And I'm a freedom fighter's son
And I'll stick to the freedom
'Til every battle's one"

Well, the jailers went wild at our singing because we were singing as loudly as we could and our voices were wafting out over the city of Jackson. And the windows were open.

They would come in and slam our windows shut and we would open them again and sing more and more and more. Other freedom riders, the black women in another wing, the white men in another wing, the white women in another wing would pick up the songs so the jailhouse was rocking with freedom song.

The jailers are running around saying "stop that singing! Stop that singing! Stop it!" And we continued singing because it was good for our morale. It was good for our morale, and if there was any fear left in us, that fear was dissipated by the song.

GROSS: What did they do to try to prevent you from singing after closing the window and yelling at you didn't work?

FARMER: Well, in Putchman (ph), the state penitentiary, said "if you don't stop that singing we'll take away your mattresses." Now, that sounds like a juvenile threat but it was an important threat because a little thin straw matters was the only comfort we had. Everything else was cold, hard, stone and steal in those tiny little cells.

But there was this little mattress, which was comfort, which was a symbol of home, symbol of domesticity; and now they're going to take that away. We had nothing else. Well, that caused some people to stop singing for a while, until one young man who was a Bible student reminded everybody of what they were doing.

He said, "here they're trying to take your soul away, you see, it's not the matters it's you soul." And then one freedom rider yelled, "guards! Guards! Guards!" And the deputy came running out into the cellblock to see what was wrong, and this freedom rider shouted, "come get my matters! I'll keep my soul!" And then song exploded again, we began singing.

And then another time -- I have to laugh when I think of this -- one freedom rider was complaining that this deputy who was in charge of the guards always called us "boy" -- "boys." He said, "why do you always call us boy? We're men. I think we ought to refuse to answer until he calls us men."

Another one reminded him that that was just a custom down South and he didn't mean anything derogatory by it. So, this fellow -- the first fellow said I think I'll ask him." He said, "Deputy Tyson?" What?" He says, "do you mean anything derogatory when you call us boy?"

Deputy Tyson said, "I don't know nothing about no `rogatory,' all I know is if you boys don't stop that singing you're gonna be singing in the rain." And then somebody started singing again. They pulled in the high-pressure fire hose and washed us all down with it. We tumbled over and everything was floating in the water in our cells.

One of the freedom riders then yelled, "Deputy Tyson, next time you're going to do that bring us some soap so we can take a shower!"

LAUGHTER

GROSS: James Farmer, recorded in 1985. He died Friday at the age of 79.

I'm Terry Gross.

This is a rush transcript. This copy may not
be in its final form and may be updated.

TO PURCHASE AN AUDIOTAPE OF THIS PIECE, PLEASE CALL 877-21FRESH
Dateline: Terry Gross, Washington, D.C.
Guest: James Farmer
High: James Farmer, co-founder of CORE, the Congress On Racial Equality, died on Friday at 79. He was the last of the major civil rights leaders of his generation. CORE was one of the Civil Rights groups of the 1960's which followed Gandhi's principles of non-violent resistance. Through CORE he directed the daring freedom rides that began integrating interstate bus service in the South in 1961. Farmer's long life as an advocate of civil rights was detailed in his autobiography, "Lay Bare the Heart."
Spec: Civil Rights; Lifestyle; Culture; James Farmer

Please note, this is not the final feed of record
Copy: Content and programming copyright 1999 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1999 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Tribute to a Civil Rights Leader
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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