FAC 5 (First Amendment Conversations) Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book
I have spent a lifetime fighting for a very broad First Amendment, keeping the government out of the First Amendment. But I have also said that there is a terrible price that one pays for that. — Burt Neuborne, “The Open Mind” with Richard D. Heffner, January 16, 1997
He is not a pause-button sort of guy / he is not one to vanish into the void / he is not a fellow you forget / and he is never one to forsake a debate or turn down a chance to raise a rebellious lance. He is animated / calibrated / cultivated / complicated / and always opinionated. He is Bill Brennan on overdrive . . . and then some!
Yes, he is Burt Neuborne, the Norman Dorsen Professor of Civil Liberties at New York University Law School. And he has a new book (Madison’s Music: On Reading the First Amendment), about which I will soon say more — but first a few biographical notes, if only to set the stage for the Madisonian music to come.
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After graduating from Cornell University in 1961, Neuborne studied constitutional law at Harvard under Albert Sacks and had Henry Hart for federal courts. He took a seminar in English Legal History from Samuel Thorne. His Harvard Law School classmates included Michael Boudin, Stephen Breyer, Bert Rein, and Patricia Schroeder. Given his interests in the law at that time, it seemed that young Burt Neuborne was destined to be either a public-interest lawyer or a professor. As it turned out, he became both, but it didn’t start out that way.
Had Fortuna not intervened, Neuborne might have continued to be an estate-planning lawyer for the well-heeled of the Eastern corridor. That, at least, is how things looked a half-century or so ago for the young Harvard graduate: “I went to Wall Street for three years after graduation, at a small blue chip firm, Casey, Lane & Mittendorf. [From 1964-1967] I specialized in estate planning for the ultra-rich.” That brand of life-in-the-law was not, however, meant to be his calling. His life-change was the child of chance: “My big break came when a lawyer for the NYCLU transferred into my Army Reserve unit. When a job opened up at NYCLU, I went for it, although my father-in-law almost killed me.” Thankfully, his father-in-law’s homicidal tendencies abated, and with that twist of fate Burt Neuborne’s career traveled along a far different track, one in civil liberties law.
Thus did things begin. And when they did he quickly found himself working in the shadow of some of the ACLU’s brightest lights: “In those days,” he told Joseph Berger, “the NYCLU and ACLU were both located in a building in the Flatiron district honeycombed with left-wing organizations. Aryeh Neier was the NYCLU director. Ira Glasser was associate director. Ruth Bader Ginsburg was a director of the ACLU’s women’s rights project. ‘By the second day I knew this was what I was going to do,’ said Neuborne.” Between 1967 and 1973, Neuborne first worked as staff counsel for the NYCLU and thereafter as the ACLU’s assistant legal director. Later, he served as the National Legal Director of the ACLU from 1981-86.
→ “I verge on the obsessive,” he once said. How very true.
Burt Neuborne is a scholar / activist / teacher / author / litigator / and one-time actor . . . and rather hyper and quite self-motivated. He has done much and is committed to doing yet more. The Bronx-born lawyer has argued several Supreme Court cases, including Clark v. Community ore for Creative Non-Violence (1984) (the case of the homeless who wanted to sleep in Lafayette Park to protest their plight). Though he lost in the High Court (7-2), earlier he managed to win the Clark case by a 6-5 en banc vote in the DC Circuit, with then Judge Ruth Ginsburg casting the swing vote (though she found “the case close and difficult”).
- He was one of the co-authors of the ACLU amicus brief filed in the Pentagon Papers Case (1971)
- As early as 1972 (seventeen years years before Texas v. Johnson), Neuborne claimed that “he had personally handled three hundred flag desecration cases.”
- Neuborne argued (audio of oral arguments here) and won Legal Services Corporation v. Velazquez (2001), a 5-4 ruling in which the majority relied on the First Amendment to strike down a funding restriction on the LSC.
- He signed onto an amicus brief in Elred v. Ashcroft (2003) (brief of Jack Balkin, Yochai Benkler, Burt Neuborne, Robert Post & Jed Rubenfeld in support of the Petitioners)
- And years later he filed an amicus brief on behalf of the Brennan Center for Justice in support of the Petitioners in Holder v. Humanitarian Law Project (2010).
Neuborne was the founding Legal Director of the Brennan Center, which he oversaw from 1995-2007. Much of its focus, then and now, relates to efforts to reinforce American democracy and secure campaign finance reform. During the late 1990s, Neuborne authored Building a Better Democracy: Reflections on Money, Politics and Free Speech (Brennan Center for Justice at NYU School of Law, 1999). Consistent with that, the Center has pursued a constitutional course (see, e.g., here, here, here and here) in tune with what Neuborne argued in Nixon v. Shrink (2000) when he opposed the First Amendment claim raised in that campaign finance case. To the same effect, he filed amicus briefs in opposition to those of the ACLU in the following cases:
- Wisconsin Right to Life v. Federal Election Commission (2006),
- Randall v. Sorrell (2006),
- Federal Election Commission v. Wisconsin Right to Life (2007), and in
- Citizens United v. Federal Election Commission (2010).
More recently, he filed an amicus brief in Williams-Yulee v. Florida State Bar on behalf of himself and three other “past leaders of the ACLU” — this time he was on the winning side thanks to Chief Justice John Roberts’ unexpected vote. And Neuborne has debated Floyd Abrams on the pages of The Nation (2011), this on the topic of the legitimacy of Citizens United. (See also here for video of Intelligence Squared debate with Floyd Abrams and Nadine Strossen).
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February 17, 2015 – 6:00 p.m, New York University Law School, Vanderbilt Hall: It was one of the high points in his long and diverse career. It was the Inaugural Lecture of the Norman Dorsen Professorship in Civil Liberties, and the all-smiling Burt Neuborne was the one to give that lecture named after his long-time friend (video here). In the course of that distinguished lecture, Neuborne admitted: “I have to confess . . . , I signed the [ACLU] brief in Buckley v. Valeo” (1976). Before anyone had a chance to gasp, however, he changed gears and branded his earlier action as a mistake. And then with his characteristic bravado, he added: “Today we live under an imperial seven-word free speech clause that redoubles its deregulatory efforts long after it has lost sight of its Madisonian goals.”
There is, of course, more to the First Amendment story of this man who has been a force in our free-speech world and will likely continue to be one. But my biographical sketch ends here, save for one more comment.
Bottom line: Make of Burt Neuborne what you will — admire him or abhor him — but don’t ignore him, for his roller-coaster-of-a-life-ride has yet to run its daring and twisting course.
→ See here re SCOTUSblog six-part video interview series with Neuborne.
→ See here for curriculum vitae
→ See “Justice Sotomayor joins in discussion of Burt Neuborne’s New Book,” First Amendment News/Concurring Opinions, March 25, 2015
The First Amendment is about making democracy work. — Burt Neuborne (Oct. 2014)
Question: The cover of your book has a photo of an 1816 painting of James Madison by John Vanderlyn (1775-1852). The image on your book, however, cuts off the top of Madison’s face so that his eyes are hidden. When you first saw a mockup of the jacket, did that fact catch your eye? If so, what did (or now, what do) you make of it?
Neuborne: I liked the veiled and somewhat mysterious image. It reinforces my sense of how difficult it is to recapture the past.
Question: In many ways, Madison’s Music: On Reading the First Amendment (New York University Press, 2015, 272 pp.) is unconventional, starting with its touching full-page dedication to your Father (“Odysseus the Tailor”) / to the poetic cast of the first chapter with a nod to Wallace Stevens / to the textual analysis that informs your theoretical arguments concerning democratic government / to the various historical and conceptual narratives that both challenged and inspired Madison / to the book’s ending which comes full circle with poetic nuance.
Why did you elect to approach your subject with literary and artistic flare rather than by way of a more traditional approach? Read More