Speaking Freely: Trials of the First Amendment

INTRODUCTION

a few years ago, I was asked to write an introduction for a book entitled Political Censorship, a collection of New York Times articles that had been published on that topic throughout the twentieth century. My task was as fascinating as it was depressing. Here, in one place, were 549 pages of journalism about censorship, almost all of it displaying (sometimes inadvertently) its dangers and occasional lunacy.

Here was the loathsome Joseph Goebbels, brought to life again as only characters in faded newspaper articles can be, strutting about in 1937 as Germany’s Minister of Popular Enlightenment and Propaganda, characterizing the press as a piano for him to play on. Touting the virtues of Nazi-style free expression, he insisted that the duty of a newspaper was “not to inform, but to shake up and spur onward.” Here was a Soviet spokesman explaining a decade later that “liberty and objectivity of the press—these are fictions. Information is the means of class struggle, not a mirror to reflect events objectively.” More often, censorship abroad was justified in more euphemistic language. Terms like “responsibility” and “accountability,” “values” and “honor,” and even “democracy” itself were used to support the suppression of speech not only in ruthlessly totalitarian states such as Nazi Germany and the Soviet Union but in far less authoritarian nations as well.

The more interesting entries for me, however, were not from foreign nations but from our own. In the United States, the law had been far from clear until well into the second half of the twentieth century about just what meaning should be given to the First Amendment’s sweeping provision that Congress could pass “no law abridging the freedom of speech or of the press.” Did “no law” literally mean no law at all? If not, what laws could pass constitutional muster? What degree of interference with freedom of speech and freedom of the press constituted an “abridgment”? And even more fundamentally, exactly what was meant by the words “freedom of speech” and “freedom of press”?

From a distance of two centuries, the intentions of those who drafted the First Amendment are not at all obvious. It is, as Thomas I. Emerson has observed, “by no means clear exactly what the colonists had in mind, or just what they expected from the guarantee of freedom of speech, press, assembly and petition.” The truth, as Zechariah Chafee astutely observed, may well be “that the framers had no very clear idea as to what they meant.”

What we do know, however, is that the framers of the Constitution were deeply divided about the wisdom of adding any amendments at all to the Constitution at the time of its adoption. The Constitution itself described how the new national government would work. Hamilton and others argued that adding a Bill of Rights that would set forth individual liberties with which the national government could not interfere was not only “unnecessary” but “dangerous.” Why, Hamilton asked, “declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?”

To articulate in so many words such restrictions to congressional power, Hamilton argued, might suggest that the delegates at the Constitutional Convention of 1787 who drafted the Constitution believed that Congress had such power in the first place, a notion that was not only false but could lead a future Congress to act as if it were indeed so empowered.

Jefferson’s answer and that of his followers was blunt: Deeply suspicious about the new powers being granted to the federal government, they would not support any Constitution that did not include a Bill of Rights setting forth a list of liberties upon which Congress could not impinge. “What I do not like” about the new Constitution, Jefferson wrote to Madison from France, was “the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press,” and a number of other specified subjects.

Faced with this serious Republican opposition, the proponents of the new Constitution agreed to the addition of the first ten amendments. As the Supreme Court later observed, adoption of the Bill of Rights was the sine qua non for the adoption of the Constitution itself.

As for the First Amendment, the extraordinary breadth of its language—“no law abridging”—is unmistakable. It is clear that the framers at least meant to embody in law the great victory for freedom that England had recognized almost a century before in banning direct censorship or licensing of the press. But whether the First Amendment was intended simply to embody the same guarantees as English law or to provide far more protection for speech was an issue that remained a matter of debate for many years in the Supreme Court.

The failure of the framers to agree precisely how broadly the First Amendment was intended to be read in protecting free speech made it a far weaker instrument in the early days of the nation than it would later become. Less than a decade after the ratification of the Bill of Rights, the Sedition Act of 1798 was adopted by President John Adams’s Federalist government. Passed at a time when war with France seemed likely and aimed at stifling criticism by Adams’s Republican opponents of the conduct of the Federalist regime, the Sedition Act made it a criminal offense to “write, print, utter, or publish” any “false, scandalous, and malicious writing” about the president, Congress, or “the government of the United States.” (Revealingly, criticism of the vice president was left unregulated, since it was Jefferson, the Republican leader, who held that position.) Republican newspaper editors, sometimes chosen by Adams himself, were duly charged, convicted, and imprisoned, and none of Jefferson’s complaints about living under a “reign of witches” had any legal impact; not until he succeeded Adams as president in 1801 were all those convicted under the act pardoned.

In other areas as well the First Amendment initially offered little protection to speakers whose views displeased those in power. When a number of Southern states adopted legislation banning abolitionist speech in the 1830s, no federal judicial review of the constitutionality of the laws was even possible, since the First Amendment had been held to limit only the conduct of the federal government, and not that of the states, from abridging speech. Not until 1925 did the Supreme Court first indicate that the Fourteenth Amendment, adopted in the aftermath of the Civil War, provided protection against state suppression of free speech; only in the 1930s did the Court start to provide any serious First Amendment protection against violations by the states.

At the beginning of the twentieth century, then, little of what we now accept as being protected by the First Amendment actually received significant legal protection, and my reading of turn-of- the-century articles from the New York Times only confirmed the real-world impact of that state of affairs. A 1904 dispatch reported laconically on the action of the Boston police in stopping the sale of copies of a comic publication on which the word “Judge” was printed across a likeness of the American flag. Two years later, an article described the indictment of three St. Paul newspapers for reporting on the hanging of a criminal, notwithstanding a law that forbade “publication of details of a hanging” and that permitted newspapers simply “to announce the fact of the execution.” Three years after that, Spokane authorities were reported to have seized every copy of the Industrial Worker, the house organ of the International Workers of the World, for publishing an article describing the “alleged experience” of a prisoner in the county jail. “The papers,” the Times reported without comment, “will be burned.” A year later, the Times reported on the jailing of the general manager of a Salt Lake City newspaper and the entry of fines against the paper itself and its editors for printing a confession made by an individual accused of murder, the publication of which, as a Utah judge concluded, had led to “great difficulty in obtaining a jury.”

The apparently boundless degree of official authority reflected in the articles about what might and might not be said around the turn of the last century was startling. In New York City in 1908, the police barred jokes told in dialect, and while they permitted “acting,” “vaudeville” was barred. The reporting about the impact of those rules reads like a Mack Sennett comedy routine. The Times duly described the police watching a quartet perform. Between two of their songs, the reader learned, the baritone struck the second tenor with a newspaper. “Cut that out,” yelled a policeman, “that’s vaudeville.”

How was censorship actually carried out in the United States? It was used to bar films that were viewed as suggestive, to jail journalists who told too much truth, and ultimately to ban books. I was especially struck by a 1921 article under the headline “Improper Novel Costs Women $100.” In its entirety, the article reported this:

Margaret C. Anderson and Jane Heap, publisher and editor respectively of The Little Review, at 27 West Eighth Street, each paid a fine of $50 imposed by Justices McInerney, Kernochan and Moss in Special Sessions yesterday, for publishing an improper novel in the July and August, 1920, issues of the magazine. John S. Summer, Secretary of the New York Society for the Prevention of Vice, was the complainant. The defendants were accompanied to court by several Greenwich Village artists and writers. John Quinn, counsel for the women, told the court that the alleged objectionable story, entitled Ulysses, was the product of one Joyce, author, playwright and graduate of Dublin University, whose work had been praised by noted critics. “I think that this novel is unintelligible,” said Justice McInerney.

Mr. Quinn admitted that it was cast in a curious style, but contended that it was in similar vein to the work of an American author with which no fault was found, and he thought it was principally a matter of punctuation marks. Joyce, he said, didn’t use punctuation marks in this story, probably on account of his eyesight. “There may be found more impropriety in the displays in some Fifth Avenue show windows or in a theatrical show than is contained in this novel,” protested the attorney.

Assistant District Attorney Joseph Forrester said that some of the chief objections had to do with a too frank expression concerning a woman’s dress when the woman was in the clothes described. The court held that parts of the story seemed to be harmful to the morals of the community.

Pause for a moment to reflect on that period piece. Imagine what Justice McInerney would have thought if he had understood the novel by “one Joyce.” Or what Joyce himself must have made of Justice McInerney’s difficulty with his prose, or of the defender of his book explaining away Joyce’s lack of punctuation as being rooted in his poor eyesight.

It is the last line in the article, however, that is most telling. Because “parts of the story seemed to be harmful to the morals of the community,” the story (and the book) were suppressed. Not for another dozen years was Ulysses permitted into the country.

The censors in the Ulysses case were judges. Other forms of censorship were imposed by Congress, by mayors, even by jurors. One striking lesson of the Times collection is that there always seemed to be plausible-sounding reasons to stop publication of a controversial work or to punish it when it occurred. Suppression of speech with which one differed, as Justice Oliver Wendell Holmes had sagely written, always seemed “perfectly logical.” Another lesson was that the risks of harm from unfettered speech were invariably overstated while the benefits of freedom were invariably minimized. Justice Louis Brandeis had said it best: “Men feared witches and burned women.”

By the time I began to practice First Amendment law in the late 1960s, the Supreme Court had decided only a few cases upon which a First Amendment legal defender could rely. There were the sublime dissenting and concurring opinions of Justices Holmes and Brandeis from the 1920s and early 1930s in cases commenced against socialists and anarchists in the aftermath of World War I, which remain among the most luminous defenses of free speech ever written. There was as well the 1931 ruling of the Supreme Court in Near v. Minnesota, all but prohibiting prior restraints—injunctions—on the press, a case that would be of central importance in the Pentagon Papers case forty years later. Several cases from the 1940s significantly limited the power of judges to hold journalists in contempt of court for what they wrote and published about the courts, including a spectacularly important one, Bridges v. California, written by Justice Hugo Black (and released exactly one day after Pearl Harbor), which sought to answer the still-disputed historical questions about the intended breadth of the First Amendment: “No purpose in ratifying the Bill of Rights was clearer,” Black wrote, “than that of securing for the people of the United States much greater freedom of religion, expression, assembly and petition than the people of Great Britain had ever enjoyed.” And there was the crown jewel of First Amendment law, the 1964 ruling of the Supreme Court in New York Times Co. v. Sullivan, strictly limiting the entry of libel judgments against the press and broadly articulating, in Justice William J. Brennan’s memorable voice, the core First Amendment proposition “that debate on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.”

As of the late 1960s no Supreme Court cases had yet been decided about how the First Amendment right of the press to print or broadcast was affected when national security issues were involved. The Court had yet to rule in any case involving efforts to prevent the press from publishing confessions or other potentially prejudicial material prior to the commencement of a criminal trial. Little had been decided about when, if ever, the press could be held criminally liable for publishing truthful material that, for one public policy reason or other, state or federal law prohibited. Few libel cases had been decided that applied the new protections afforded the press in 1964 by the New York Times v. Sullivan case.

Likewise, as of the late 1960s little case law existed about subjects as diverse as what limits a city, state, or federal government could place on its granting of funds to a cultural institution based upon the views expressed in works of art shown by those institutions, and what limits could be placed on the amount of money that could be spent on election-related advocacy.

The 1960s, then, was a time when the degree of First Amendment protection available to the press was still uncertain. It was also a time when the country began to suffer a sort of nervous breakdown, with the assassinations of President John F. Kennedy, Reverend Martin Luther King, and Senator Robert Kennedy overlapping a civil rights revolution in the South and the ever- increasing impact on the nation of the doomed war in Vietnam. At this historic moment I was an unlikely champion of the First Amendment.

Like most people, I had always been “for” freedom of speech—who seriously believes that he or she is against it?—but it was not until I began to defend the First Amendment in court in the late 1960s that I came to the view that the need for what Justice Brennan had characterized in New York Times Co. v. Sullivan as “uninhibited, robust and wide open” speech should outweigh all but the most vital competing societal interests, and even then only in the narrowest of circumstances.

My views about the First Amendment began to take shape when I was an undergraduate at Cornell University. I was sixteen when I began my college life in 1952, but my youth did not lead me to any exuberant adoption of libertarian principles. I had, as one professor remarked on one of my papers, the views of a liberal with the vocabulary of a conservative. In the area of freedom of speech, however, I seemed to have the views of a mid-1950s conservative as well.

Under the direction of Professor Robert E. Cushman, I wrote my senior thesis on the conflict between fair trial and free press. My approach was greatly influenced by the views of Supreme Court Justice Felix Frankfurter, whose opinions often treated the press more as an irresponsible and even dangerous nuisance than as an institution that could legitimately benefit society. Frankfurter’s legal approach was in turn rooted in English law, and it was that law that I advocated adopting wholesale. Like England, I argued, America should make it criminal for the press to publish any information prior to a trial that could interfere with a defendant’s right to a fair trial. Like England, I wrote, we should adopt a body of law that would result in the jailing of editors who published prior criminal records or pretrial confessions of defendants. That I would be arguing precisely the opposite in the United States Supreme Court twenty years later was unimaginable.

By the time I had graduated from Yale Law School, my views had been tempered but had not fundamentally changed. My political views were pronouncedly liberal, and I was generally more persuaded by and admiring of the liberal Supreme Court justices than the more conservative ones. But I had learned much from a new group of rather conservative scholars (as they were defined at Yale, at least) who began teaching at Yale in 1956, the year I arrived as a student. Foremost among them was Alexander M. Bickel, a startlingly brilliant young scholar. In my first year at Yale the curriculum had been changed to ensure that every entering student took part in a small seminar of about twenty students. The system was arranged alphabetically, which meant I was in especially close contact with my fellow students whose family names began with A, B, or C. The professor I came to know best was also first alphabetically—Bickel.

Born in Rumania, Bickel had emigrated to the United States with his family when he was fourteen, speaking little or no English. By the time I first saw him enter our seminar in constitutional law, he was thirty-one and already the stuff of student legend—an honored graduate of Harvard Law School, former law clerk to Justice Frankfurter, and author of a forthcoming book featuring previously unpublished drafts of opinions of Justice Brandeis. He was a formidable presence in the classroom, demanding and often irascible. His English not only was perfect but seemed specially crafted to deflate our (and all too often my) intellectual pretensions.

Bickel took particular joy in attacking the class’s liberal judicial heroes, Justices Hugo Black and William O. Douglas, jurists who had engaged in an ongoing ideological conflict on the Court with Justice Frankfurter. I still remember his verbal assault on one of my fellow students who dared to answer his question asking what documents a court should look at in interpreting the Constitution by referring not to the text of the Constitution itself, nor to materials such as the Federalist Papers, but to the Declaration of Independence. I thought my classmate was right—not that Jefferson’s stirring prose in the Declaration of Independence trumped the Constitution, but that in interpreting the latter it was entirely appropriate to consider the former. Years later, conservatives such as Clarence Thomas would turn anew to the Declaration of Independence as a source of natural law which, they argued, should be given great weight in constitutional adjudication. In my days in law school, however, at least under Professor Bickel’s tutelage, the Declaration of Independence was treated as a mere revolutionary document, not one to look to for legal guidance.

Having taken none-too-supportive positions in college about the First Amendment, I found Bickel’s (and Frankfurter’s) less protective approach to First Amendment issues congenial with my own. What I found uncongenial—what I learned most from, that is—was Bickel’s emphasis, often based on the writings of Justice Brandeis, on the need for judicial decision-making based upon the consistent application of legal standards, even when those standards led to the “wrong” side winning. Constitutional law, he argued, was not just politics under a different name but was—or at least was supposed to be—law. That did not mean that political or even judicial philosophy played no role in judicial decision-making; nor did it mean that I had to abandon my general personal preference for the liberal judicial icons of the day in favor of Bickel’s mentor, Frankfurter. What it did mean, however, was that jurists could not (or at least should not) simply use their raw power to implement their ideologically driven desires.

I took a number of courses with Bickel, did well in the examinations he gave, and left Yale impressed with and a bit apprehensive of him. I was content to leave him behind in academia while I moved on to a different world.

My new world, after graduation from Yale, began at Princeton University, where I worked as a research associate for Professor Alpheus P. Mason in the Department of Politics. Mason was a political scientist who had written biographies of various members of the Supreme Court, including Justice Louis Brandeis and Chief Justice Harlan Fiske Stone. When I joined him, he had the idea of writing a book about the office and powers of the chief justice of the United States. I worked with him for about seven months, about the time it took for both of us to realize that although many chief justices had done interesting and important work while they served on the Court, there was too little to say about the position of chief justice itself to warrant a book- length study.

I moved on from Princeton a bit farther south and spent the next two years as a law clerk for Federal Judge Paul Leahy in Wilmington, Delaware. Leahy was a man of sparkling intelligence and charm who was a joy to work with. When he became ill during the second year of my clerkship, I spent a good deal of time working for Chief Judge Caleb Wright, a superb trial judge, from whom I learned much about the law that remains relevant to my practice four decades later. I then returned to New York and accepted a position as an associate at the firm of Cahill Gordon & Reindel. I worked entirely in the litigation area and through the 1960s did a growing amount of work for NBC, a client that increasingly found itself at odds with the government as it proceeded with its news-gathering efforts.

This book begins in 1967, when I had been working at Cahill Gordon for four years. With great difficulty and not a little pain at what I am excluding, I have chosen to describe a sampling of the First Amendment cases with which I have been involved in the ensuing thirty-seven years. Many were highly newsworthy, sometimes notoriously so; others were conducted virtually in secret. All of them reveal the way our courts dealt with competing claims and interests ranging from the right to publish against claims of harm to national security to the right of a museum to choose to display a controversial work of art against the claim of a city that it should not be obliged to fund that art. In each case, a First Amendment defense (or offense) was offered by me and my colleagues; in each, the opposing side urged that some other interest—national security, a defendant’s fair-trial rights, an individual’s reputation, a city’s interest in not subsidizing art that offends, a nation’s interest in having pure elections—should carry the day.

At the same time that I try to show how First Amendment law has developed in the years since I began to represent media-related clients, I seek as well to address a related subject that is rarely described with much candor—namely, how lawyers plan to and then actually try cases or argue appeals. I have read many books by or about lawyers. One difference between my life and those of such giants of the bar is that unlike almost all of them, I have lost as well as won cases, made errors as well as hit home runs. I like to think that I have learned from my losses. I know that I haven’t forgotten them.

I have written Speaking Freely for people who care about our freedoms. While I hope the book will appeal to lawyers, journalists, and students who aspire to be either or both, my real intended audience is readers who live in this country and abroad who want to know more about just what we do protect and what we don’t, and who are prepared to make their own judgments about how far our protection of free speech should go.

With that in mind, I begin in the first two chapters with the Pentagon Papers case, the 1971 ruling of the United States Supreme Court rebuffing efforts of the Nixon administration to bar the New York Times and other newspapers from publishing information made available by a confidential source who provided the newspaper with major portions of a highly classified analysis setting forth how the United States had become embroiled in the war in Vietnam. The government’s effort to obtain a prior restraint—an injunction—barring the Times from publishing articles based upon that material led to a historic clash between the powers of the nation during wartime and the rights of the press to be free of governmental restrictions on what it may print. It was my first case that wound up in the Supreme Court, and was followed five years later with my first argument in that court, in a case involving another prior restraint against the press, this one barring the publication of information about a defendant in a sensational murder case.

In chapter 3, I describe two cases I argued a few years later in the Supreme Court, dealing with the issue of when, if ever, the press may be punished for publishing accurate information. The first involved the question of whether a statute could constitutionally make criminal the publication of the name of a judge at a time when he was under investigation by a confidential judicial fitness panel. The second concerned the constitutionality of a statute that made it criminal to publish the name of a juvenile who was then appearing before a juvenile court without first obtaining the permission of the judge. In both cases, the journalists published accurate information that they had lawfully acquired. In both, they had been convicted of crimes for doing so. The question in each was whether the First Amendment allowed the conviction to stand.

I chose three libel cases to describe in chapters 4, 5, and 6, each of which illustrates the new world of libel law brought into being by the Supreme Court’s breathtaking 1964 ruling in New York Times Co. v. Sullivan. The first case describes my surrealistic experience in defending NBC in Las Vegas against a libel suit commenced by Wayne Newton, the internationally recognized Las Vegas entertainer, who claimed that a number of NBC broadcast segments had falsely linked him to organized crime figures. The second was a libel action with a Perry Mason twist that had been commenced by a Turkish businessman who claimed that he had inaccurately been accused by Newsday, a New York newspaper, of having been a leading heroin dealer. The third was a litigation commenced by Victor Lasky, a well-known conservative journalist and author, who sued ABC for falsely claiming (as Lasky viewed it) that he was responsible for the McCarthy-like firing of a West Virginia professor.

The next two chapters, 7 and 8, relate to two enormously publicized cases. The first involved New York City Mayor Rudolph Giuliani’s angry effort to strip the Brooklyn Museum of all city funding based upon his view that a painting it was about to display was sacrilegious. The last deals with my representation of Senator Mitch McConnell and the National Association of Broadcasters in an extremely controversial challenge to the constitutionality of the McCain- Feingold Act, the law that sought to limit or bar a variety of practices relating to political fund- raising and the expenditure of funds for advertisements during political campaigns.

I conclude, in chapter 9, with a comparison of American free-speech law to that in effect in other democratic nations and the impact of the differences.

I know that some of my readers will take issue with various positions I took in the cases I describe. That is as it should be. The essence of the First Amendment, after all, is that we don’t all have to agree.