Category: Civil Rights

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Looking Back: Lenny Bruce’s Obscenity Prosecutors & First Amendment Defense Lawyers

Ephraim London

Ephraim London (NY defense lawyer) (credit: Getty Images)

Al Bendich (SF lawyer) (credit: NYT)

Harry Kalven, Jr. (IL appellate counsel)

Harry Kalven, Jr. (Illinois appellate counsel)

Al Bendich (SF defense counsel) (credit: NYT)

The Lenny Bruce story — the one about his obscenity trials (circa 1961-64 in SF, LA, Chicago & NY) — is a remarkable story in the history of the First Amendment as well as in the culture of comedy. You’ll not find the story on the pages of the the United States Supreme Court, though Bruce forever changed the law when it came to uninhibited comedy. You will, however, find traces of that story in the 3,500 pages of trial transcripts titled People v. Bruce (sometime this fall those transcripts will be available in their entirety on FIRE’s online First Amendment Library). There in black-and-white you will find a story about laws invoked in factual situations where it was unclear that any prosecution was warranted.  It is also the story of using the law in ways that at the time were constitutionally suspect. And then there is the human story, the tragic one that first destroyed a man’s career and then destroyed him.

The backdrop of this story is the lawyers who prosecuted and defended the uninhibited comedian. It is said that the dead live on the lips of the living. Mindful of that admonition, below I have listed the names of those lawyers (adapted from my book with David Skover: The Trials of Lenny Bruce). In our judge-centric world, we tend to overlook the lawyers, the ones who are the first to plow the earth of the law. So note their names and roles in People v. Bruce.

The names listed below are those involved in Lenny Bruce’s obscenity trials (as distinguished from, say, his drug arrests and trials).

My experience with Lenny Bruce . . . was the first time I saw in action the government’s use of the might and power of the criminal justice system to crush dissent. William M. Kunstler 

Prosecutors (12)

San Francisco:

  1. Arthur Schaefer (1st Jazz Work Shop obscenity trial)
  2. Albert C. Wallenberg (2nd Jazz Work Shop obscenity trial)

Los Angeles

  1. Johnnie L. Cochran, Jr. (pretrial hearing on motion to dismiss Trolly Ho obscenity case)
  2. Ronald Ross  (consolidated Troubadour & Unicorn obscenity trial)

Chicago

  1. Samuel V. Banks (Gate of Horn obscenity trial)
  2. Edward J. Egan (Gate of Horn obscenity trial)
  3. Willie Whiting (Gate of Horn obscenity trial)
  4. William J. Martin (appeal of conviction in Gate of Horn obscenity trial)
  5. James R. Thompson (appeal of conviction in Gate of Horn obscenity trial)
Richard Kuh (NY prosecutor) (credit: Getty Images)

Richard Kuh (NY prosecutor) (credit: Getty Images)

New York

  1. Gerald Harris (grand jury & pretrial matters in Cafe Au Go Go obscenity trial)
  2. Richard H. Kuh (Cafe Au Go Go obscenity trial)
  3. Vincent J. Cuccia (procedures for appeal of Cafe Au Go Go conviction)

Prosecutors re Appeal of Companion Case (People v. Solomon)

  1. H. Richard Uviller (post judgment motions before New York Supreme Court, Appellate Term)
  2. Harold R. Shapiro (appeal of Cafe Au Go Go conviction before New York Supreme Court, Appellate Term)

First Amendment Defense Lawyers (23)

San Francisco:

  1. Seymour Fried (1st Jazz Work Shop obscenity trial)
  2. Albert M. Bendich (2nd Jazz Work Shop obscenity trial)

Los Angeles

  1. Melvin Belli  (represented by his associate, Charles Ashman, in Troubadour obscenity case)
  2. Seymour Lazar (pretrial matters in Trolly Ho obscenity case)
  3. Sydney M. Irmas (Trolly Ho obscenity case)
  4. Burton M. Marks (consolidated Troubadour & Unicorn obscenity trial)
  5. John Marshall (Illinois extradition order in Gate of Horn obscenity case)

Chicago

Maurice Rosenfield (IL appellate counsel w Kalven)

Maurice Rosenfield (IL appellate counsel w Kalven)

  1. George J. Cotsirilos (pretrial matters in Gate of Horn obscenity trial)
  2. Donald Page Moore (pretrial matters in Gate of Horn obscenity trial)
  3. Samuel Friedfeld (Gate of Horn attorney originally retained to represent Bruce & club owner Alan Robback in Gate of Horn obscenity trial)
  4. Earl Warren Zaidans (Gate of Horn obscenity trial)
  5. George C. Pontiffs (sentencing hearing in Gate of Horn obscenity trial)
  6. Harry Kalven, Jr. (appeal of conviction  in Gate of Horn obscenity trial)
  7. William R. Ming, Jr. (appeal of conviction  in Gate of Horn obscenity trial)
  8. Maurice Rosenfield (appeal of conviction  in Gate of Horn obscenity trial)
Martin Garbus (one of NY defense counsel)

Martin Garbus (one of NY defense counsel w London)

New York

  1. Howard Squadron (bail & bond for arrest in pretrial matters in Cafe Au Go Go obscenity trial)
  2. Lawrence H. Rogovin (appears for Howard Squadron in pretrial matters in Cafe Au Go Go obscenity trial)
  3. Ephraim London (lead counsel in Cafe Au Go Go obscenity trial)
  4. Martin Garbus (co-counsel in Cafe Au Go Go obscenity trial)
  5. Harry Herschman (sentencing hearing  in Cafe Au Go Go obscenity trial)
  6. Allen G. Schwartz (certificate of reasonable doubt for appeal in  in Cafe Au Go Go obscenity case)
  7. Edward de Grazia (§1983 civil rights law suit)
  8. William M. Kunstler (advisory capacity in §1983 civil rights law suit)

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Attorneys on Appeal for Bruce’s Co-defendant, Howard L. Solomon (People v. Solomon)

  1. Bentley Kassal (bail and bond for arrest and pretrial matters in Cafe Au Go Go obscenity trial)
  2. Herbert Monte-Levy (pretrial matters in Cafe Au Go Go obscenity trial)
  3. Allen G. Schwartz (Cafe Au Go Go obscenity trial)
  4. William S. Miller (sentencing hearing in Cafe Au Go Go obscenity trial)
  5. William S. Miller (sentencing hearing in Cafe Au Go Go obscenity trial)
  6. William E. Hellerstein (appeal of Cafe Au Go Go conviction)
  7. Milton Adler (appeal of Cafe Au Go Go conviction)

FullSizeRender (1)

Posthumous Pardon Petition  re People v. Bruce (1964)

  1. Robert Corn-Revere (counsel for Petitioners Ronald Collins & David Skover)
Robert Corn-Revere (posthumous pardon)

Robert Corn-Revere (posthumous pardon)

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 No to be overlooked are the nine club owners who were either persecuted or prosecuted in connection with Lenny Bruce’s performances in their clubs. See The Trials of Lenny Bruce, p. 456 (2002).

There is also the story of the judges who presided over Lenny Bruce’s obscenity trials. That is, however, another post for another day.  Besides, there were so many of them. See The Trials of Lenny Bruce, pp. 454-456 (2002).

→ And finally, there is the story of a relentless journalist who played a key role in the Lenny Bruce First Amendment story.  His name: Nat Hentoff.

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FAN 118 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents

Note: Below is a heretofore unpublished letter from Floyd Abrams. It follows another one recently posted on this blog by Professor Nadine Strossen. Vice-Chancellor Max Price, to whom both letters were primarily directed, was invited to reply. (Links have been added for reference purposes.) 

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July 24, 2016

Dear Vice-Chancellor Price:

I am a practicing lawyer in the United States who has devoted the better part of my professional career to defending freedom of expression. I am also a Visiting Lecturer at the Yale Law School, have written two books and many articles about freedom of expression around the world, and have spoken about the topic in a number of nations including, by way of example, India, Japan, Sri Lanka, Malaysia, Great Britain and—of particular relevance—South Africa. I was one of a number of foreign scholars who participated in advising the drafters of the South African Constitution. I have spoken about issues relating to freedom of expression in Johannesburg, Cape Town and Pretoria. I have read your statement about the decision of University of Cape Town to withdraw the invitation to Flemming Rose to deliver this year’s  TB Davie Memorial Lecture. I take the liberty of writing this letter to you because your decision is not only of consequence to your university and to your country but to democratic nations and universities in them throughout the world.

Floyd Abrams

I would like to make two brief observations at the outset.

The first is that I am not writing to you to urge you to adopt or to apply American standards in deciding who may be invited. As your statement correctly observed, the framers of your Constitution quite deliberately adopted a general right of free expression subject to certain specific limitations relating to propaganda for war, incitement of imminent violence, and “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.”

The second is that I am not writing to suggest that the cancellation by a university of an invitation to speak made to a  prominent  public figure is unique to South Africa. Quite the opposite is true. In the United States, a number of invitations have been made and then withdrawn by universities to prominent individuals including a former Secretary of State and the current head of the International Monetary Fund after protests were feared if the speaker was permitted to offer her views. Indeed, it is precisely because of my strong belief that the decisions of those American universities—and there are many of them– were so shameful and so contrary to basic principles of academic freedom that I take the liberty of writing to you.

UnknownAt the outset, nothing in the South African Constitution lends any support to your decision. Nothing that Mr. Rose has ever said can possibly be said to constitute propaganda for war. He has never urged violence against anyone or sought to incite it. Your statement observes that “Mr. Rose is regarded by many around the world as … someone whose statements . . . possibly amount to hate speech.”. I appreciate and honor your unwillingness to say that you credit any such an insupportable charge. But if you are unwilling to do so—and there is no basis for doing so—you can hardly rely on the notion of incitement as a basis for cancelling the invitation. I note in that respect that even the clause of the South African Constitution that limits free speech protection to advocacy of racial hatred or the like does so only when the speech at issue “constitutes incitement to cause harm”.

Writing from afar, I cannot comment specifically on your expressed concern about the security risks of permitting Mr. Rose to appear except to say that your nation, as mine, has experienced security risks in the past and when aware of them has been able to protect speakers and listeners alike. The security question is not whether it can be provided; it is whether freedom of speech on your campus is so important that it is worth doing so, with all its risks. Your Academic Freedom Committee obviously thought it was. From any perspective that honors academic freedom, that is a necessary conclusion.

Dr. Max Price

Dr. Max Price

The same is true of your stated concern that inviting Mr. Rose may have the perverse effect of limiting rather than vindicating academic freedom since he “represents a provocatively—potentially violently—divisive view.” Of course, Mr. Rose himself offers provocative views. I am sure that is why he was invited. But he hardly “represents” a “potentially violently” view about anything. The risk of violence is at all not from him but from those who simply do not accept core notions of freedom of expression and academic freedom. To yield to those who cannot abide freedom of expression that they find abhorrent is to abjectly surrender to them.

There remains the first basis articulated by you for rescinding the invitation to Mr. Rose—concern about provoking conflict on campus. It is, I am well aware, awfully easy for people thousands of miles away from your campus and whose views you have not sought, to presume to advise you that even if there is a risk of conflict on your campus that follows or accompanies a speech by Mr. Rose, it is one worth accepting. Who needs, you may well ask, such second-guessers? All I can say is that those of us who weigh in on the issue from abroad do so because we care about your country, are impressed by its Constitution, and are often in awe of your Supreme Court and its liberty-protecting rulings. We also offer our views because the decision to disinvite by your great institution is one that will be viewed carefully by academic institutions around the world as they decide how to respond in similar circumstances.

The very first TB Davie Memorial Lecture was delivered by Chief Justice Centlivres, the Chancellor of your university, on May 6, 1959. He then summarized what he characterized as Professor’s Davie’s “articles of faith” as follows: “The first was that a university is primarily a centre of learning, the second that a university flourishes only in an atmosphere of absolute intellectual freedom, and the third, that the pre-eminent virtue of university life is intellectual integrity,.” Guided by those precepts, it is difficult to understand or accept the cancellation of Mr. Rose’s appearance.

Respectfully submitted,

Floyd Abrams

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News Update: Michael Cardo, UCT: A tale of two lecturers, PoliticsWeb, July 25, 2016 (“This coming weekend, the University of Cape Town will host Hamza Tzortzis, a highly controversial lecturer who propagates a radical version of Islam. His visit to the campus follows hot on the heels of an executive decision to bar Danish journalist Flemming Rose from delivering the 2016 TB Davie Memorial Lecture on academic freedom.”) 

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FAN 117.3 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Nadine Strossen Dissents

In the classic expression of freedom of speech and assembly, UCT’s policy is that our members will enjoy freedom to explore ideas, to express these and to assemble peacefully. The annual TB Davie Memorial Lecture on academic freedom was established by UCT students to commemorate the work of Thomas Benjamin Davie, vice-chancellor of the university from 1948 to 1955 and a defender of the principles of academic freedom. Organised by the Academic Freedom Committee, the lecture is delivered by distinguished speakers who are invited to speak on a theme related to academic and human freedom. 

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Note: Below is a heretofore unpublished letter from Professor Nadine Strossen. This coming Wednesday FAN will post another dissenting letter, this one by Floyd Abrams. Additionally, Vice-Chancellor Max Price, to whom the letter is primarily directed, is invited to reply should he be so inclined. (Links have been added for reference purposes.) 

July 22, 2016

Dear Vice-Chancellor Price, AFC Chair Professor Rousseau, and Professors Hendricks and McClachlan-Daniels:

UnknownAs someone who was honored to deliver the TB Davie Memorial Lecture in 2011, I was inspired by the University of Cape Town’s proud history of defending academic freedom, and its ongoing commitment to doing so, including through this Lecture and the work of the Academic Freedom Committee. I also recall fondly Dr. [Max] Price’s cordial hospitality and  appreciated support for the AFC and the Davie Lecture.

I applaud the AFC’s March 2015 decision to invite Flemming Rose to deliver the 2016 Davie Lecture, and I am heartened by the AFC’s refusal to rescind that invitation despite apparently great pressure to do so from both within and beyond UCT. Having read Mr. Rose’s enlightening book, The Tyranny of Silence, as well as many other publications by and interviews of him, I consider him one of the most principled, courageous exemplars of intellectual freedom and freedom of conscience, including freedom for religious and other beliefs. I was therefore deeply honored to present to him the biennial Friedman Prize for Advancing Liberty, awarded by the Cato Institute, in New York City on May 25, 2016. For your information,  I append below this letter the text of the remarks that I delivered on that occasion.

maxresdefaultOf course, I would neutrally defend Mr. Rose’s right to speak at UCT  — and the UCT community’s right to hear his ideas – even if I strongly objected to his ideas. But he is especially deserving of a forum such as the Davie Lecture because his ideas have been so widely caricatured and misunderstood, and because these ideas are urgently important precisely due to the sensitive nature of the issues they address.

 For the foregoing reasons, I was deeply disheartened to learn recently that UCT had overridden the AFC and breached the commitment to host Mr. Rose to deliver the 2016 Davie Lecture. I was particularly disheartened by the reasons set out for that action in Dr. Price’s recently released letter, dated July 12, 2016.

These are the very same reasons that regularly have been cited to suppress the expression of any view that is politically unpopular at the particular time and place. In the U.S., for example, these were the reasons that too many universities cited for barring civil rights advocates from speaking during the twentieth-century Civil Rights Movement. Likewise, they are the same reasons why too many U.S. universities more recently barred “Black Power” activists from speaking. In a nutshell, the arguments both then and now are that the suppressed ideas could well offend other people, threatening their most cherished personal beliefs and community values, and potentially leading to violent reactions by those who are thus offended.

Professor Nadine Strossen

Professor Nadine Strossen

I have read the persuasive responses that have been issued to Dr. Price’s letter by the 2015 Davie Lecturer, Kenan Malik, and by the Index on Censorship, as well as by the AFC and Flemming Rose himself. I will not repeat the powerful arguments they made.  Rather, I will confine myself to making several additional points.

First, why does UCT succumb to the victim-blaming approach in this context that it would surely eschew in other contexts? To say that Flemming Rose should not advance ideas that others might find provocative and respond to with violence, seems to me the same as arguing that women should not wear certain clothing that others might find provocative and respond to with violence.

Second, Dr. Price’s letter references the limits upon free speech that the South African Constitution sets out, which are also generally accepted in other legal systems.  Yet the letter doesn’t expressly contend – nor could it credibly do so – that anything Flemming Rose has said, or is likely to say, would transgress any of those limits.  Indeed, apparently acknowledging as much, Dr. Price’s letter makes only the tentative, qualified observation that “Mr. Rose is regarded by many around the world as..someone whose statements.possibly amount to hate speech.”

As any survey of the media will reveal, if universities declined to host any speakers whom some people consider to have made statements that “possibly amount to hate speech,” then they would have to ban from campus just about everyone who is addressing any important, contentious, sensitive issue. For example,  in the U.S., many critics recently have denounced “Black Lives Matter” protestors as engaging in hate speech, even blaming such speech for allegedly instigating murders of police officers.

Dr. Max Price

Dr. Max Price

Flemming Rose’s speech clearly is not “advocacy of hatred . . . that constitutes incitement to cause harm,”  which the South African Constitution excludes from free speech protection (as quoted in Dr. Price’s letter). First, there is no basis for concluding that Mr. Rose would say anything that could fairly be considered “advocacy of hatred that is based on.religion.” Moreover, even if someone did engage in such “advocacy,” it would still be protected speech, unless it also “constitutes incitement to cause harm.” To the best of my knowledge,  not even Flemming Rose’s most unfair, harshest critics have charged him with “incitement” – a legal term of art that means intentionally spurring on listeners who are supportive of his views to commit harm against third parties, in a context where his sympathizers are actually likely to do so imminently. And if any such charge has been leveled, it would be patently unjustified.

If South Africa withheld free speech protection for non-inciting statements that merely criticize certain religious beliefs, or actions that are based on certain religious beliefs, then it could not protect many views that have been widely aired around the world:  for example,  criticism of’ discriminatory views and actions concerning LGBTQ individuals that are held by many Christian and other denominations and their adherents.

Third, Dr. Price’s invocation of “the rise in extremist terrorist groups” as somehow allegedly justifying suppression of Flemming Rose’s speech is also part of a general pattern that has been used to suppress a wide range of freedom, all over the world, not only in the recent past, but also historically. Ironically, this was precisely the topic of my 2011 Davie Lecture:  the unjustified violations of academic freedom in the name of fighting “the War on Terror.”

Given that this “War” is likely to remain “The New Normal” worldwide, it will remain an all-too-convenient, but unjustified, rationale for suppressing academic and other freedom.  This danger was recognized by none other than the namesake of the TB Davie Memorial Lecture himself. Let me quote a passage from my Davie Lecture, which quoted Dr. Davie’s pertinent observations.

“In his 1948 Inaugural Address, upon being installed as UCT’s Principal and Vice-Chancellor, Dr. Davie noted that `[r]ecent history has…shown …how easily and almost imperceptibly Universities can be deprived of their freedom.’  In words that are chillingly apt today  [almost seven] decades later, he warned: `Controls and restrictions [that are] imposed and accepted under conditions of war are only too meekly submitted to, even when the conditions necessitating their imposition have disappeared.'”

Fourth, I would like to add to the critiques that have already been made of Dr. Price’s argument that proceeding with Flemming Rose’s lecture “might retard rather than advance academic freedom.”  This reminds me of the much-maligned statement by a U.S. military official during the Vietnam War, that “we had to destroy the village in order to save it.”

It is also the same argument that the U.S. Supreme Court unanimously rejected in the landmark 1997 case of Reno v. ACLU, in which the Court for the first time upheld freedom of speech for the then-new medium of online expression. The U.S. government had argued that individuals might avoid an uncensored Internet “because of the risk of exposing themselves or their children to harmful material,” and therefore that censorship could have a net positive impact on free speech. The Court resoundingly repudiated this Through-the-Looking-Glass argument for the same reason that it is unpersuasive in the current context:

“We find this argument singularly unpersuasive…[I]n the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”

Fifth and finally, I am troubled by the ongoing threat to academic freedom that Dr. Price’s letter signals. On the one hand, he  asserts that UCT “hope[s] never again to have to interfere with an invitation to deliver a lecture on academic freedom.” On the other hand, though, he later endorses  “a considered version of academic freedom that is avowedly sensitive to the concurrent rights to dignity and freedom from harm.” In other words, it is only his version – or UCT’s “official” version – of academic freedom that will be honored, not that of the AFC, or the viewpoint-neutral version that would be consistent with the South African Constitution and UCT’s own proud traditions, as exemplified by TB Davie.

In light of the positive experience that I was so honored to enjoy as a prior Davie Lecturer -the same positive experience that Kenan Malik described in his response to Dr. Price’s letter – and in the constant hope that “more speech” will prevail over censorship, I respectfully urge reconsideration of the decision not only to “disinvite” Flemming Rose from giving the Lecture, but also apparently to exclude him from speaking at UCT altogether, even as part of a debate or panel presentation. I don’t think that bringing any speaker to campus could reasonably be viewed as anointing that speaker “as the chosen champion of the University of Cape Town,” as Dr. Price says. Certainly, when I had the privilege of delivering the Davie Lecture, I saw myself as the champion only of my own views on academic freedom; I did not see myself as even a spokesperson for UCT, let alone its “champion.” By continuing to create fora for discussion and debate by and with speakers expressing a range of views – including such an important thinker, writer, and activist as Flemming Rose — UCT itself would continue as “the chosen champion” of academic freedom.

 Very truly yours,

 Nadine Strossen

John Marshall Harlan II Professor of Law,  New York Law School

Immediate Past President, American Civil Liberties Union (1991-2008)

APPENDIX   Read More

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Pour Myself a Cup of Ambition

It feels indulgent to have the chance to respond to reviews of my book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge 2016)—all the more so given that the back-and-forth is almost instantaneous. I so appreciate Concurring Opinions for providing a forum to hear what readers have to say, and for giving me the last—or at least the next—word.

Nancy Dowd posted first with an important and provocative set of questions. She makes the accurate observation that the book is “unabashedly” focused on women. Indeed, it is. She encourages that we ask the “other questions,” invoking the advice of Mari Matsuda to look at objectionable patterns and practices and ask whether there isn’t something other than the obvious thing going on. In other words, when you identify a practice that is harmful to women, ask whether it might also involve race or class. And even when looking at problems from a strictly gender perspective—think about men. Where are they in the equation? Dowd is the perfect person to encourage this broadening of perspectives, as she has been a pioneer in the emerging field of masculinities theory (her 2010 book The Man Question is a staple in the field) and has done a brilliant job in her more recent work of unmasking the racial biases in the juvenile justice system. So why didn’t I ask more complex questions about race, class, gender identity, and the intersectional effects of these characteristics? The cheeky answer is that a book that managed to ask all those questions would be long enough to be slapped with a cover price that would deter all potential readers. But the real answer is that my focus on women as individuals and as a category was purposeful. It was an effort to refute a complacency that has developed specifically around gender.   People tend to think that because the law embraces gender equality, we have achieved it. References to a post-gender millennium and headlines saying “We did it!” (with a picture of Rosie the Riveter) make me crazy. What I see when I look at the experience of women at work is that gender is everywhere and it operates largely to the disadvantage of women. Read More

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Just a Step on the Boss Man’s Ladder

There is no greater privilege as a writer than to have a group of people you deeply respect take the time to read your work and respond to it. Thanks to Naomi Cahn, who organized this symposium and launched it with a wonderful introduction, I have been granted this privilege for my new book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge 2016).

This book was a labor of love. As many of the commentators have noted, it is based on a column I have been writing every other week for over fifteen years (the first ten for FindLaw’s Writ and the last five for Justia’s Verdict).   It blows my mind that what started as a one-off essay on whether a woman should be able to annul a marriage to a man she was auctioned off to on the reality television show “Who Wants to Marry a Millionaire?” would have turned into one of the most important pieces of my professional life. Because of this column, I have gotten to chronicle legal and social developments in my areas of interest and expertise in real time—a refreshing change from the world of academic publishing—and to be part of an ongoing conversation with an audience of litigants, lawyers, judges, policymakers, journalists, and the general public.

When I began writing my column, I was at the beginning my academic career, and I had just given birth to the first of my three sons. As this book was published, I was teaching that son how to drive in the middle of a significant professional transition from Hofstra Law School, after a 17-year run, to SMU Dedman School of Law, where I will serve as the inaugural holder of the Ellen K. Solender Endowed Chair in Women and Law. This book, which collects columns on women and work and ties them together with introductory essays, gave me the opportunity to reflect at this time of transition not only on my own life and career, but also on the developments in sex equality law—where we were, where we are now, and where we are headed. The book, although packaged in a lighthearted style (with some of my favorite sex discrimination cartoons!), ends on a somewhat depressing note: despite a complicated and robust set of laws mandating women’s workplace equality, the terrain remains uneven at best, slanted firmly towards inequality at worst.  In all too many respects, today’s workplace is similar to the one farcically depicted in the movie 9 to 5, which hit the big screen almost forty years ago.  Why haven’t we as a society made more progress? From this vantage point, I feel a kind of solidarity with Ellen Solender, who spoke of her mother’s hope that women’s suffrage would bring about broad-based equality for women, but her own disappointment that even her granddaughters may not live to see it. That we aren’t there yet just means we have to continue the fight. Nine to Five is one tiny piece of the effort to promote equality for all women, and my new position will be the perfect platform from which to work.

In a forthcoming post, I will respond to the provocative and interesting points raised by the reviewers, to whom I am grateful for their generosity of time and spirit, as well as their individual and collective expertise.

 

 

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Working 9 to 5: What a Way to Make a Living

Joanna Grossman’s Nine to Five:  How Gender, Sex, and Sexuality Continue to Define the American Workplace is an invaluable contribution to the popular understanding of how gender works – or doesn’t – at work.  With wry humor and a clarity that’s all-too-rare among those who write about the law, Grossman provides a comprehensive, must-read primer for the lay reader.  But Nine to Five also is a bracing corrective to the notion that the issues raised by the popular 1980 movie of the same name are remotely as anachronistic as the bad fashion sported onscreen by Dabney Coleman, Jane Fonda, Dolly Parton, and Lily Tomlin. Read More

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The Limits of Anti-Discrimination Law

Joanna Grossman’s Nine to Five is a masterfully assembled set of commentary on sex discrimination cases. Joanna’s deft explanations and critiques of doctrine would make it great for the classroom, sort of like a volume from the “Law Stories” series but with a lot more law. Bringing the commentaries together also allows the collection to highlight some limits of discrimination law as it is now constituted. Nancy Dowd has already raised the challenge of intersectionality; another classic constraint in discrimination law is that equality can be achieved either by leveling up or by leveling down. On the issue of accommodating family responsibilities, for example, American law’s narrow conception of equality has a hard time justifying a level-up, despite the extensive body of feminist scholarship on the gendered nature of the neoliberal marketplace and its “ideal worker.” (See chapter 35, on Young v. UPS.) The demands of “the market” serve as conversation-stoppers in discrimination law, which is understood as regulation of the market, even though aspirations for sex equality include non-market goals. In light of emerging movements demanding that markets serve people instead of the other way around, the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.

As I read through Nine to Five—especially the chapters on accommodating pregnancy, work/life balance, and the masculinity of the ideal worker—I kept coming back to the title. Joanna uses the movie 9 to 5 as a jumping off point for talking about gender in the workplace. I have long been curious about the phrase “9 to 5” and its relationship to the labor movement’s hard-won eight-hour workday. “9 to 5” has at times been a pejorative term for a corporate drone, but today it carries the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.

An early expression of the demand for the eight-hour workday came from Robert Owen, who proposed an even division of the day: “8 hours labour, 8 hours recreation, 8 hours rest.” Today, we refer to the eight-hour workday as standard. After all, the Fair Labor Standards Act requires overtime for hourly workers above forty hours a week, and the archetypal, salaried office worker is “on the job from 9 to 5.”

Except that almost nobody is actually on the job from 9 to 5. I discovered this for myself when I started my first office job, working for the federal government. As Joanna discusses (chapter 54), the federal government is the nation’s largest employer and is therefore not only the enforcer of laws but also a standard-setter in practice. With Dolly Parton echoing in the back of my naïve mind, I learned that as a salaried employee I was expected to work a minimum of eight hours per day, with a half-hour unpaid lunch break, a 15-minute unpaid break in the morning, and a 15-minute unpaid break in the afternoon. My workday could be 8 to 5, 8:30 to 5:30, or 9 to 6, but definitely not 9 to 5. Today, the vast majority of office workers work the federal day or longer. Workers subject to FLSA rules not only get their breaks unpaid but have had to go to court over whether hours spent donning protective gear or descending into coal mines are part of their work day.

From the employer’s perspective, of course, it isn’t eight hours of work if the employee disappears for an hour at lunch. What is notable, however, is that law and culture adopted the employer’s perspective and thereby shifted from the “eight-hour work day” to “eight hours of work.” When eight hours is understood not as the portion of one’s life to be devoted to employment but as the quantity of production to which the employer is entitled, the “work day” expands, stealing time from recreation and rest because the work day has been excused from recognizing the humanity of the worker.

The work day could, instead, be “one-third of the day of a human being,” who will necessarily have to deal with some aspects of her humanity during that period. After all, no one is getting any reimbursement or comp time for having to spend some of their “8 hours for recreation” on eating or going to the bathroom, nor do we get to come in late for work when our “8 hours for rest” are interrupted by any number of human realities. “Eight hours of work” instead of an “eight-hour work day” converts time, a human experience, into a commodity defined by its alienation.

This same shift from human-centered goals to market-centered rules, which ultimately place the values of the market above all else, operates in the difficult corners of discrimination law. For example, Nine to Five tackles several problems that arise in the context of school-affiliated sports: pay disparities between the coaches of boys’ and girls’ teams (chapter 3); unequal treatment of the teams themselves (chapter 9); and the toxic masculinity of sports culture, which bleeds into politics, business, and education (chapters 55 and 56). One reason discrimination law often fails to advance equality in these contexts is that it allows market ideology to trump not only non-discrimination principles but also the purported values of sports and educational institutions themselves.

In the case of coaches’ salaries, Joanna dissects the “market defense” that the EEOC has made available to schools: to justify discriminatory salaries, a school need only refute that coaching its girls’ team requires as much skill, effort, or responsibility as coaching its boys’ team. Schools routinely argue that male coaches are responsible for more money and more media management, and that male coaches arrive at the school with higher prior salaries and more experience coaching and playing sports. (p. 20) Joanna points out that these factors allow the school to “buil[d] on past discrimination against female coaches” and that the school itself creates the expectation that boys’ teams will play for higher stakes in both prestige and money. Here, not only the logic of the market but also the explicit sexism of the market is invoked to constrain discrimination law, even when the market defense is offered by non-profit institutions who claim that they sponsor athletic contests not to make money but to support “the higher education mission” and create “an inclusive culture” with “career opportunities for coaches and administrators from diverse backgrounds.”

Players from the U.S. women’s national soccer team (of which Joanna is clearly a fan!) have filed a pay equity suit that will raise these issues, albeit without a school affiliation: the soccer federation’s main defense is that the women’s game doesn’t make as much money as the men’s because it isn’t as popular with fans. There are factual questions about whether this is true and the extent to which, if true, it is the result rather than the cause of discrimination. But a larger question is whether that should matter. Assuming the market defense to be factually true, it should not end the conversation but begin it. Joanna demonstrates how this conversation should proceed in a different context: Discussing employer liability for “sudden, severe [sexual] harassment” (chapter 25), she notes that, sometimes, severe harassment will occur that no reporting system could have prevented. The question, then, is who should bear that cost? Nothing in the logic of sex discrimination law, or greater aspirations for an equal and just society, suggests that the victim rather than the employer should bear 100% of the cost. Similarly, it is not written in stone that women rather than soccer federations should bear the costs of sexist sports culture.

Other workplaces have their own versions of this market defense. In academia, it is a commonplace at many institutions that the only way to increase one’s salary is to get a job offer elsewhere. It is also a commonplace that this is a terrible policy and that it has a disproportionately negative impact on women. It persists because of the market defense.

In public debates about the gender wage gap, various factions talk past each other about whether the gap reflects “real discrimination” or “women’s choices,” which include things like taking “time off” for children or subordinating one’s own career to a spouse’s. This dichotomy is largely beside the point. Some portion of the wage gap is due to flat-out pay discrimination; some is due to discrimination in hiring; some to discrimination in the “pipeline”; some to job segregation that is linked to historical pay inequities between men’s work and women’s work; and some is due to women continuing to perform the bulk of unpaid family labor (details in chapter 51). Why does any of those things justify a skewed distribution of economic security and wealth? The market defense, writ large, puts artificial limits on aspirations for equality.

Speaking of family labor: Readers of this symposium were likely amused by Robert Owen’s facile division of the day into “8 hours labour, 8 hours recreation, 8 hours rest.” When, pray tell, was dinner to be cooked, the house cleaned, and the children’s noses wiped? Those tasks, in Owens’s mind, presumably belonged in someone else’s work day, but today we know them as the second shift, performed by people who “talk about sleep the way a hungry person talks about food.” It’s time to revisit not just minimum wages but maximum hours so we can earn our bread and bake it too, and still have time to tend our roses.

 

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The Long-Discredited Challenge to the Impartiality of Minority Judges

Recent challenges to the impartiality of a federal judge based on the judge’s racial identity harken back to a period when accusations of this nature occurred with some frequency. This issue of race and judicial neutrality, and its ultimate resolution more than thirty years ago in a little known case, Pennsylvania v. Local Union 542, International Union of Operating Engineers, should be understood within historical context.  Read More