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                                          Q&A by Audrey Eisman

 

 

ABFFE Pick! October 2013                                                         

The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America  

by Thomas Healy                                           

Henry Holt and Co.Metropolitan Books, $28, 336 pages 9780805094565       

 

Q&A with Thomas Healy

ABFFE: As a legal scholar and First Amendment expert, what inspired you to make Oliver Wendell Holmes the subject of your first book?

Healy: I decided to write about Holmes because I was intrigued by his personal transformation on the issue of free speech, which marked the beginning of a national transformation.  For anyone who studies free speech in America, Holmes is the dominant figure.  He wrote many of the most famous free speech opinions in Supreme Court history and introduced concepts that are still part of our law and cultural lexicon, including "clear and present danger” and "the marketplace of ideas.”  Beyond Holmes’s contribution to free speech, he is a fascinating historical figure.  As the law professor Grant Gilmore once wrote, "Holmes is the only man of law who ever became a folk hero.”  He did so in part because of his brilliant writing style, in part because of his personal history (he was a Boston Brahmin who was wounded three times in the Civil War and lived to the age of 93), and in part because he was capable of making creative leaps that were beyond the ability of most judges.     

ABFFE: Why was Justice Holmes so opposed to freedom of speech initially?  

Healy: Holmes was not opposed to freedom of speech in particular.  He opposed all constitutional rights, believing that law should reflect the majority’s will and that judges should not stand in the way.  In that sense, he was one of the first advocates of judicial restraint, which holds that judges should generally defer to the wishes of the legislature.  Interestingly, Holmes’s gospel of judicial restraint initially made him a hero to progressives, since in those days constitutional rights were often used to strike down progressive labor legislation.  It was only when the government began to persecute dissenters during World War I and the first Red Scare that progressives urged Holmes and other judges to enforce the right of free speech.   

ABFFE:  Oliver Wendell Holmes was appointed to the Supreme Court by Theodore Roosevelt yet some were critical, calling him "a literary feller” with "a strong tendency to be brilliant.”  Why did people think these attributes were negative, and why was Holmes distressed by them?  

Healy: Law is a conservative profession, and people are often skeptical of judges who write with style or seem unusually clever.  For the most part, we want our judges to be stolid, straight-laced individuals, in the same way we want our banks to be boring, steady institutions.  It is also important that judges be clear, and although Holmes was a gifted writer, his opinions were sometimes elliptical and obscure.  Holmes was distressed by such criticisms because he wanted to be recognized as the "greatest jurist in the world,” and feared he would never get the credit he was due.  

ABFFE:  Why was the Abrams case so important to Holmes?     

Healy: The Abrams case was important because it gave Holmes a chance to limit the effect of three opinions he had written earlier in 1919.  In those opinions, Holmes had upheld the government’s power to punish socialists and pacifists for criticizing the war and the draft.  Many progressives were troubled by those opinions, and a group of them began an intense behind-the-scenes campaign to change Holmes’s mind on the issue of free speech.  At the same time, Holmes watched as several of his closest friends came under attack for their own radical views.  The combination of these two developments led to Holmes’s famous dissent in Abrams, which he wrote, he reported to a friend, "as if possessed.”                                      

ABFFE: What do you feel was Holmes greatest achievement?  

Healy: Holmes left a large body of memorable opinions, speeches, and articles, many of which continue to influence our law and culture today.  But ultimately, I think his biggest achievement was the persona he created.  By transcending the law and becoming a sort of philosopher-poet, he provided an example and inspiration to later generations of men and women who would come to believe, like Holmes, that a person "may live greatly in the law as well as elsewhere.”

 

ABFFE Pick! August 2013

FRIEND OF THE COURT     

by Floyd Abrams                                                                              

Yale University Press, $32.50, 488 pages 978-0-300-19087-8

 

Floyd Abrams has participated in many important First Amendment cases during the past half-century.  FRIEND OF THE COURT is a collection of Abrams’ speeches, essays and articles since 1978. Highlights include the Pentagon Papers, Citizens United and Brooklyn Museum cases.  

Floyd Abrams is a Senior Partner in Cahill Gordon & Reindel LLP and has litigated high-profile First Amendment cases for more than 40 years.  He has taught law at Columbia School of Journalism, Yale Law School and Columbia Law School.  In addition to FRIEND OF THE COURT,  Mr. Abrams has written several other books, including SPEAKING FREELY, TRIALS OF THE FIRST AMENDMENT.                                             

 

Q & A with Floyd Abrams

 

ABFFE: Your first chapter includes a debate with Catherine A. MacKinnon, a strong advocate of legal measures to curb "pornography” as a way of enhancing the civil liberties of women.  What was wrong with her approach?

 

Floyd: I don’t believe that civil liberties are advanced by limiting civil liberties, especially those rights protected by the First Amendment. The legislation that Professor MacKinnon had drafted was so sweepingly overbroad in scope that the federal court of appeals that held it violated the First Amendment observed that it could apply to anything from hard core films to the collected works of James Joyce or D.H. Lawrence. That was not a drafting problem; it stems from the inherent impossibility of drafting legislation that would sanction ”bad” speech while leaving "good” speech untouched. And from our likely disagreement about what speech should be on the list of imperiled expression and what not. My bottom line is this: let’s punish bad behavior, not speech of which we disapprove.

 

ABFFE: Who do you think were some of the best and worst presidents when it comes to respect for the First Amendment?

 

Floyd: Bad First Amendment Presidents include some great men—John Adams for supporting and enforcing the Alien and Sedition Acts and Theodore Roosevelt for trying to use the courts to jail the celebrated publisher Joseph Pulitzer for publishing articles about the construction of the Panama Canal that Roosevelt thought were out of bounds. Some less than great figures—Richard Nixon, for one—would also make any list of First Amendment transgressors. The most difficult President to pass judgment on was our greatest—Abraham Lincoln, who, in the most threatening days in our nation’s history, caused journalists to be jailed in northern and border states, who were viewed as unsupportive of the civil war. That’s worth a book in itself!  

 

ABFFE: You are a leading defender of the right of journalists to protect the confidentiality of their sources.  Does protecting sources become more important in a time like ours when there are threats to our national security?

 

Floyd: When national security is threatened, civil liberties routinely are as well and it is all the more important that sources who wish to speak but are fearful of disclosing their identities feel free to speak with journalists. That does not mean that all potential revealers of secrets serve the national interest by doing so. It does mean that it is vital that we keep lines of communication open between those who dissent and those who can publicize the views of and information known by dissenters. This is a delicate area but it is one that leads me to conclude that only if journalists can promise confidential sources that their identities will be kept secret will the nation remain both informed and free.

 

ABFFE: How would you characterize the current Supreme Court’s commitment to the First Amendment?    

 

Floyd: I believe the current Supreme Court has played a critical role in protecting speech and that it deserves more praise than it has thus far received  for doing so. To offer two examples, in the past few years, and by overwhelming majorities, the Court has protected the free speech rights of protesters who have stood within sight of churches in which the deaths of American soldiers were being mourned with despicable signs denouncing them and the rights of individuals who filmed, for profit, horrible (and illegal) acts of animal torture. Such speech is appalling. That the Supreme Court has concluded that such speech deserves First Amendment protection seems to me magnificent.   

 

ABFFE Pick! May 2013

 

Jay A. Gertzman, professor emeritus of English at Mansfield University, is author of three books, including Bookleggers and Smuthounds: The Trade in Erotica, 1920-1940.

 

Q & A with Jay Gertzman

ABFFE: How did you come to write this book?

 

Gertzman: I had written a chapter on Roth in Bookleggers and Smuthounds (1999). On that basis, two of Roth’s grandchildren asked me to write a biography of their grandfather. They wanted the man to be acknowledged for the various aspects of his career: his writings, his work for freedom of expression (which included a 15-year fight with the Post Office over their "unmailable” rulings); his courageous publishing projects on topics such as President Hoover, Walter Winchell, transvestite struggles to attain the love, not just the notoriety, they deserved, the anarchist writer Celine,and Roth’s own book on Jesus and the Jews (My Friend Yeshea). What is most important here is that there is now a very rich archive of Roth’s writings, correspondence, court transcripts, publishing operations, and MS. One of the latter, by the Harlem novelist and activist Claude McKay, is now being prepared for publication. This archive is in Columbia University’s world-class Rare Book and MS Library.

ABFFE: Why was Roth called "The Prometheus of the Unprintable”? (by an admirer, Ralph Ginzburg)?:

Gertzman: Roth published banned books such as the memoir My First 30 Years (Gertrude Beasley; H L Mencken said it "could never be published in this country”), Ulysses, Lady Chatterley’s Lover, A Scarlet Pansy, Our Lady of the Flowers, the Kama Sutra. He probably distributed copies of Tropic of Cancer, as well as just as much classic erotica as Barney Rosset. This activity made him lots of money,—a major motive for any publisher. But Roth suffered not only two 5-year federal prison sentences (the last when he was in his sixties), but also became an outcast and pariah capitalist. He was called a thief and pirate by supporters of James Joyce, and an international protest against him (1927) was signed by over 160 writers (He actually was not a pirate, since Ulysses was not copyright, but he was churlishly opportunistic).

Roth declared he would "make a barracks of any jail in the US” to fight for the right of the average citizen to read. That statement is self-advertising bluster, and yet even Ezra Pound admitted he made literature "they would not otherwise get” available to the average man. While Roth was in prison, Rosset was able to win his case against the Post Office and finally, Lady Chatterley’s Lover could be sent through the mails. Roth, from 1929 on, suffered fines and imprisonment for distributing the book. He did so without permission, but Rosset (a greater First amendment hero than Roth)did not have permission from the Lawrence Estate.

ABFFE: What would you say was unique about Roth as a modernist literary figure?

Gertzman: I used as an epigraph to the book the phrase from Philip Roth’s The Counterlife "Life is and.” Like other modernists, in both his behavior and his writings Samuel Roth combined ideas and values, sometimes with maddening inconsistency. For example, he wrote both an anti-Semitic tract and a book about his life mission to reconcile (as one of the "36 just men” of his generation) the Jewish and Christian religion after 2000 years. He published (often without the author’s even knowing about it) modernists such as Charles Reznikoff, Alfred Jarry, T. S. Eliot,and Jean Genet (not to mention Joyce and Eliot.)

ABFFE: What were Roth’s best sellers?

Gertzman: The Strange Career of Mr Hoover Under Two Flags was a scandal book published in 1931. It had some effect on the 1932 presidential race, and disturbed the Hoover supporters sufficiently to have them contact the author and convince him to repudiate the book (on promise of being paid to publish another one). They also illegally accessed Roth’s bank records.

My Sister and I (1952) was most likely a hoax, written by Roth and his ghost writers. The premise was that while Nietzsche was in a mental hospital after his nervous breakdown, he wrote this memoir of about his incestuous relationship with his sister. There are still scholars who consider it to be possibly authentic.

The Samuel Roth Edition of Lady Chatterley’s Lover was an expurgated version of Lawrence’s work. It sold by the thousands. To capitalize on it, he got two writers to do sequels: Lady Chatterley’s Friends and Lady Chatterley’s Husbands. It was such a clever expurgation that the Lawrence Estate got the British publisher to use it as the basis for the "authorized” expurgated edition.

 

ABFFE Pick! March 2013

PRIESTS OF OUR DEMOCRACY: The Supreme Court, Academic Freedom, and the Anti-Communist Purge

Marjorie Heins

NYU Press February 2013, (978-0-8147-9051-9) 384 pages, $35.00

 

 

Q&A with Marjorie Heins  

 

ABFFE: What inspired you to write Priests of Our Democracy?

Heins: A combination of personal and professional reasons. I was an ACLU lawyer for many years, specializing in censorship cases, and many involved academic freedom – everything from students prohibited from wearing T-shirts and buttons to professors who needed to access "sexually explicit” art, literature, or psychological material in the course of their research. I would cite the Supreme Court’s major academic-freedom cases in my briefs, but I never had time to investigate the human stories that lay behind them.   On a personal level, I grew up in Brooklyn, the daughter of a city schoolteacher, during the McCarthy era. Although my parents were not politically active, they knew people who were, including some of my dad’s fraternity brothers from City College, which was a hotbed of leftwing radicalism. As a child in the ‘50s, I absorbed the demonization of American communists, but as a member of the New Left in the ‘60s, I began to wonder why no there was no ongoing, established left presence in American politics. After the New Left collapsed, I began to study the history of political repression in the U.S. I’ve been fascinated by the subject ever since.      

ABFFE: What are the main themes of Priests of Our Democracy?  

Heins: Priests traces the battle for academic freedom from its early years through the 1950s, when teachers and professors were under tremendous pressure from anti-communist loyalty investigations, and then up to the present day. It combines legal history with human stories of radical teachers and their confrontations with McCarthyism.  

ABFFE: What are some of those human stories?  

Heins: The book starts with one of my favorites: Harry Keyishian was a junior at Queens College in 1952 when the Senate Internal Security Subcommittee came to New York to investigate supposed subversion in the city colleges. Two of the most popular professors on campus, Vera Shlakman and Oscar Shaftel, refused to answer questions about their political beliefs and associations, including whether they had ever been members of the Communist Party and if so, who were all the other people they had known in the movement. Both were fired within weeks of their testimony – tenured professors who had never been accused of any impropriety in their teaching.    Ten years later, Harry is an instructor at the State University of New York at Buffalo. All faculty and staff are ordered to sign an oath affirming they were never members of the Party and if they had ever been, they had disclosed this fact to the university president. The oath was a way of implementing New York’s 1949 Feinberg Law, which required a loyalty investigation of every public school and university teacher.   He was one of five professors who refused the oath and challenged the Feinberg Law in court. Although their chances seemed slim – the law had been upheld by the Supreme Court in 1952 – they went ahead and ultimately won a landmark victory in 1967. The case is Keyishian v. Board of Regents.  

ABFFE: Why was the Keyishian case so important?  

Heins: In the early ‘50s, The Supreme Court headed by Chief Justice Fred Vinson did virtually nothing to stop the escalating witch hunts, although Justices Hugo Black and William O. Douglas wrote passionate dissents from majority opinions that upheld the loyalty purges and blacklists. In the 1952 decision that upheld the Feinberg Law, Douglas’s dissent pointed out that the law would "raise havoc with academic freedom” and turn the school system into "a spying project.”   By the late 1950s, under the leadership of Chief Justice Earl Warren, things began to change.  But while there were decisions chipping away at overly vague loyalty oaths and condemning some of the excesses of legislative investigating committees, it was not until Keyishian that the Court – by a bare 5-4 vote –struck down the convoluted investigatory apparatus and guilt by association that drove the 1950s Red hunt. 

ABFFE: Did the Court in Keyishian have anything to say specifically about academic freedom?  

Heins: The Court (per Justice William Brennan) announced that academic freedom is "of transcendent value to all of us and not merely to the teachers concerned.” Thus, it is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”  

ABFFE: Why so? What exactly is academic freedom, and why is it important?  

Heins: The crux of it is the freedom to teach without censorship, to pursue research without hindrance, and to participate in the educational decisions of the university.  Academic freedom is not absolute, of course. A professor who denies the Holocaust in history class, for example, is not qualified to teach that subject. Teachers do not have a right to engage in racial or sexual harassment, inside or outside class. And substandard scholarship is legitimate grounds for excluding someone from a university job.  Why is it important? Justice Felix Frankfurter explained it very well. He wrote in a 1952 case: "To regard teachers—in our entire educational system, from the primary grades to the university—as the priests of our democracy is not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.”            

ABFFE: Is there any relevance to all this history today?  

Heins: Political repression has distorted our democracy. The silencing or demonizing of leftwing dissent has narrowed the range of opinion that’s considered legitimate, with sometimes dire results in terms of our foreign and domestic policy. The last chapter of my book describes some of the effects of this relative absence of a legitimate, established leftwing perspective in our political dialogues. The attacks on Middle East Studies after 9/11, the quick passage of the "USA PATRIOT” Act, the hyper-patriotism that damned any dissent from U.S. military actions abroad, and the broad and vague definitions of "terrorism” and "material support” for terrorism in our laws all have their roots in the American history of political repression.

 

ABFFE Pick! February 2013

Nuanced Absolutism

by Robert K.L. Collins

Carolina Academic Press, 978-1611632460, $27.00

      

In Nuanced Absolutism, Robert K.L. Collins analyzes key aspects of the legal thought of Floyd Abrams, America's most noted contemporary First Amendment lawyer. Collins is the Harold S. Shefeman Scholar at the University of Washington School of Law and a fellow at the First Amendment Center at the Newseum in Washington, D.C. His previous books include We Must Not Be Afraid to Be Free (with Sam Chaltain), The Trials of Lenny Bruce, and The Death of Discourse (both with David Skover.) He is also editor of The Fundamental Holmes, Constitutional Government in America, and The Death of Discourse. In 2013, Mr. Collins was also selected as a fellow in residence at the Norman Mailer Writers Colony in Provincetown, Massachusetts.

 

Q&A with Ronald Collins 

ABFFE: Nuanced Absolutism is the first of three books you will publish this year. What are the other two?

Collins: The second book is Mania: The Story of the Outraged & Outrageous Lives That Launched a Cultural Revolution (March 2013), which is a book about some rather frantic and creative times in the lives of the Beats. It ends with a story about the HOWL trial of 1957 in which Lawrence Ferlinghetti was prosecuted. The third book is On Dissent: It's Meaning in America which comes out in late spring.

ABFFE: How did Nuanced Absolutism come about?

Collins: It all began with Floyd and I e-mailing one another about my then recent Book The Fundamental Holmes (2010). It was rather like a dialogue by e-mail. As we went back and forth, I asked questions and from time to time he would reply by sending me this or that brief or unpublished speech of his. I was quite taken by these "gifts” and started to write a blog piece, then a law review article, and finally a book. In the process, the book nearly wrote itself.

ABFFE: Why did you pick the publisher you did?

Collins: So far as academic publishers of law books are concerned, Carolina Academic Press is among the very best, perhaps even the best. I have known the publisher, Keith Sipe, for decades and consider him to be tops in his field – business savvy, pragmatic, and committed to working for his authors. My entire experience with them was wonderful. Their editing was helpful, their quality control was first-rate, their turn-around time was amazing, and they kept the price low. All in all, I have been very happy with them.

ABFFE: Is Nuanced Absolutism a biography?

Collins: Yes, sort of – it is an intellectual biography. It opens by describing Mr. Abrams’s early life and his entry into law, the college and law professors who left a lasting mark on him, and the various cases he has argued and the causes he has championed. His has really been a rich and remarkable life in the law. The book also sketches out his thoughts on the need for government secrecy and the corresponding need to confine such secrecy to a narrow class of situations. Additionally, portions of the book focus on Abrams’s views on journalistic responsibility on the one hand, and the need to protect the press (even when it there is a disinclination to do so) on the other hand.

ABFFE: We rarely see books about lawyers and their view of the law, especially the law of the First Amendment. Can you say a few words about that?

Collins: What I ventured to do in Nuanced Absolutism is to explain the world of a lawyer who has been doing First Amendment litigation for decades. That is, I wanted to chart out a view of the First Amendment from the vantage point of someone who actually litigates these cases rather than the more typical approach of explaining a judge’s view (say that of William Brennan) or a scholar’s view (say that of Alexander Meiklejohn). Incredibly, we all too frequently ignore the incredible contributions of lawyers like Mr. Abrams to the body of law we call the First Amendment. Now that this book is done, I am in the process of organizing an entire symposium titled "Litigation Scholarship” – the idea, of course, came from Nuanced Absolutism.

ABFFE: What other First Amendment lawyers are there whose names and work we should know?

Collins: There are a number and I mention several of them in my book, including Walter Pollak who argued Gitlow v. New York (1925) and Whitney v. California (1927), Stanley Fleishman, who was a noted obscenity lawyer, and also Robert L. Carter who successfully argued NAACP v. Alabama (1958), among other First Amendment cases. What is amazing is that so very little has been written about these lawyers who changed the architecture of First Amendment law.

ABFFE: What do you mean by "nuanced absolutism”?

Collins: The more I studied Mr. Abrams’s briefs and various writings, the more the word "nuance” popped up in my mind. When it comes to his writings and court work, Abrams is a careful craftsman, someone attentive to the importance of presenting a given argument in a precise way. So that is the nuance side of the equation. As for the absolutism side, well, let me say this: Abrams is certainly no Hugo Black-type absolutist. How could he be? That approach is too crude, too riddled with conceptual flaws. He is instead, as I have billed him, someone who is a nuanced absolutist. For example, here is how Abrams expressed that very idea in his book Speaking Freely (2006): "Truthful speech about public officials in the course of their public duties should never give rise to criminal liability.” I have italicized the words that reflect his nuance, which in turn expresses a certain kind of absolutism, albeit narrowly construed. Voilà! There you have it.

ABFFE: You have written several books on various aspects of the First Amendment. Do you plan to do more?

Collins: Yes, of course. Right now I have two or three (or four?) in the works. I love to write in this field and have more ideas that I want to flesh out along with saying something about forgotten First Amendment personae. So, stay tuned! By the way: Floyd Abrams has his own new book coming out this June; it’s titled Friend of the Court: On the Front Lines with the First Amendment (Yale University Press). That book, I gather, is another product of our e-mailing back and forth -- it’s what comes out of two friends sharing ideas about the First Amendment. 

 

ABFFE Pick! January 2013

Unlearning Liberty

by Greg Lukianoff

Encounter Books, 9781594036354, $17.98

 

January's ABFFE Pick! is Greg Lukianoff's eye-opening report on the prevalence of speech codes and other forms of censorship on American college campuses.  Speech codes, Lukianoff explains, are any university regulation or policy that prohibits expression of speech that would be protected by the First Amendment in society at large. Detailing cases from coast to coast, community colleges to elite institutions; Unlearning Liberty describes how intolerance for dissent has scared students and professors into interacting only with like-minded associates. This trend limits not only their extra-curricular activities but also their ability to be critical thinkers in the classroom. According to Lukianoff, the ramifications for society could be profoundly unsettling. If we cannot feel free to be "offensive" and speak our mind on campus then where will we feel free? Read ABFFE's interview with Lukianoff here. 

 

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