Tagged: Constitutional Law

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FAN 120 (First Amendment News) Snapshots of David Cole #2: Chipping Away at Citizens United

If Citizens United is overturned, it will be because of the sustained efforts of critics in civil society to critique it, educate the public about why it’s wrong, and show through local initiatives that alternative reforms are possibleDavid Cole, August 22, 2016

This is the second post concerning  David Cole, the ACLU’s New National Legal Director (first post here).  In this post the focus is on Professor Cole’s views on the First Amendment and campaign finance laws, with a particular focus on Citizens United v. Federal Election Commission (2010).

This past April Professor Cole published an article in The Atlantic entitled “How to Reverse Citizens United.” Here are a few excerpts from that article (subheadings were added):

Change in the Court: New Opportunities & Challenges 

Professor David Cole

Professor David Cole

“Now, with a new Justice in the offing, the prospect of reversing Citizens United, among other Roberts Court decisions, seems suddenly larger, more plausible: For campaign-finance-reform proponents, the brass ring seems within reach.”

“But the matter is not so simple. Even if Scalia is replaced by a more liberal justice, the Court’s campaign-finance rules will not be easily reversed. The precedents extending First Amendment protection to campaign spending date back to 1976, long before Scalia became a judge. The Court generally follows precedent, and overrules past decisions only rarely, even as justices come and go. A new justice will not be sufficient.”

Incremental Steps: The Slow March to Victory

“If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbook.”

Start with the States

“Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones.”

The Role of Scholarship

“Scholarship could similarly lay the groundwork for a new approach to campaign finance. One promising critique of the Court’s recent rulings concedes that spending restrictions limit First Amendment rights, but maintains that the constitutional interest in protecting speech is outweighed by other compelling considerations. Although the Court’s most recent rulings assert that the only legitimate basis for restricting campaign spending is curtailing bribery—what the Court calls ‘quid pro quo corruption’—a number of scholars are persuasively pressing a broader understanding of the state’s interests. For example, Zephyr Teachout, a law professor at Fordham, has shown that the Constitution’s framers expressed an active desire to fight corruption, a category they understood to include, beyond mere bribery, the undue influence of wealth on politics. Robert Post, the dean of Yale’s law school, argues that ensuring ‘electoral integrity’ is essential to a functioning democracy, and justifies limits on the free flow of campaign cash. And in an important new book, Plutocrats United, Richard Hasen, a law professor at UC Irvine, maintains that the state’s interest in equality can justify rules aimed at countering money’s distortion of politics. Each of these arguments could provide a path toward a constitutional jurisprudence that allows states and Congress more leeway in regulating campaign spending.”

Related Articles by David Cole

  1.  The Supreme Court’s Billion-Dollar Mistake, New York Review of Books, January 19, 2015
  2. How Corrupt Are Our Politics?, New York Review of Books, September 25, 2014
  3. The Roberts Court vs. Free Speech, New York Review of Books, August 19, 2010

See also Jameel Jaffer, How Constitutional Change Happens: Q&A With David Cole, ACLU, April 4, 2016:

Cole: “My own sense is that incrementalism is pretty much all there is. The NRA, the gay rights groups, and the human rights groups all succeeded in significant part by acting incrementally. Campaign finance reform today is similarly proceeding incrementally, introducing clean election and public financing and disclosure reforms in the most receptive states first, and then seeking to spread those wins to other states. A full-frontal attack on Citizens United is unlikely to prevail, but attacking it around the edges shows more promise.”

 See generally, Jeffery Rosen Interview with David Cole: How Citizen Activists Can Make Constitutional Law, National Constitutional Center, April 18, 2016 (on YouTube) (discussion focuses on activist and litigation strategies)

Proposed Federal Law Would Ban Revenge Porn Read More

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FAN 119 (First Amendment News) — Snapshots of David Cole, the ACLU’s New National Legal Director

Professor David Cole

Professor David Cole

Now that Professor David Cole has been named the new national legal director for the American Civil Liberties Union, I plan to do several posts on him and some of his views on the First Amendment.

As some may know, David Cole was the main author of the briefs in two landmark flag-burning cases:  Texas v. Johnson (1989); and United States v. Eichman (1990). William Kunstler, who argued both cases, commented that as the author of those briefs Cole was “the intellectual architect of the courtroom victories.” (See also Collins & Chaltain, We Must not be Afraid to be Free.)

David Cole likewise argued Reno v. American-Arab Anti-Discrimination Committee (1999) (First Amendment challenge to the selective enforcement of the immigration law against Palestinian immigrants based upon their political associations and activities). National Endowment for the Arts v. Finley (1998) was another First Amendment case Professor Cole argued (First Amendment challenge to NEA’s politically-based denial of federal funding to four performance artists whose works address issues of sexuality, and to the 1990 statutory provision requiring NEA grants to made “taking into consideration general standards of decency.”) He also served on the Advisory Board of The Free Expression Policy Project.

His most recent book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (2016) (see also his remarks at Politics & Prose Bookstore, April 2016) (YouTube)

* * * * 

For now, let us turn to Professor Cole’s arguments to the Court in Holder v. Humanitarian Law Project (2010), the “material support” to terrorist organizations case.  Below are some selected excerpts from the oral arguments in that case:

Core political speech

Mr. Cole: Mr. Chief Justice, and may it please the Court: This as-applied challenge asks whether the government can make it a crime for Ralph Fertig and the Humanitarian Law Project to speak in association with the Kurdistan Workers Party.

Specifically, they seek to advocate for legal reform in Congress and the UN, to write and distribute articles supportive of Kurdish rights, to inform the Kurds of their international human rights and remedies, and to advise them on peaceful conflict resolution.

It is undisputed that the Kurdistan Workers Party engages in a wide range of lawful activities and that plaintiffs seek to support only lawful ends.

The government has a concededly compelling interest in combatting terrorism, yet it has not even tried to defend these prohibitions under strict scrutiny.

Instead, it rests its entire case on the proposition that criminalizing plaintiffs’ speech is a regulation of conduct, not speech, and therefore can be upheld under O’Brien. . . .

Justice Stevens: But, Mr. Cole, don’t you agree that some of the speech could be regulated?

Mr. Cole: –Some of my clients’ speech?

Justice Stevens: Some of the speech of your client.

Mr. Cole: I don’t think — I don’t think any of it could be prohibited, Your Honor, unless the government can satisfy the stringent scrutiny that this Court applies when Congress seeks to prohibit pure speech. . . .

Justice Stevens: You think all of the speech at issue is protected?

Mr. Cole: –I think that certainly all of the speech that I’ve just identified, which is the core–

 . . . . It’s core — and I think the reason, Your Honor, is it is core political speech on issues of public concern.

It is advocating only lawful, peaceable activities.

This Court has never upheld the criminal prohibition of lawful speech on issues of public concern.

“Money is different”

Justice Kennedy: Well, could the government, I assume — I assume you will say NGO or other organization or person from giving tsunami aid to one of these organizations, from giving them money?

Mr. Cole: I think money is different, Your Honor.

Justice Kennedy: Could they — could the government prohibit that?

Mr. Cole: I think money is different because it’s  . . . conduct, not speech.

Make Distinctions: Aid, support & membership

Justice Scalia: Any assistance you provide to these organizations cannot be separated from assistance to their terrorist activities.

Mr. Cole: Well, Your Honor, that is precisely the argument that the United States made to this Court in Scales.

And here I’m quoting from the government’s brief:

“Active membership can be proscribed even though the activity be expended along lines not otherwise illegal, since active support of any kind aids the organization in achieving its own illegal purposes. “

That was with respect to an organization that Congress spent 10 years studying, made findings that it was an international conspiracy directed and controlled by the Soviet Union with the aim of overthrowing the United States by force and violence, using terrorism.

And, nonetheless, this Court in Scales held you’ve got to distinguish between that aid and support and membership which is furthering the lawful activities and that which is furthering the illegal activities; otherwise you are penalizing the exercise of lawful speech.

The Court said the same thing in De Jonge.

Justice Ginsburg: Mr. Cole, as I remember, Scales upheld a conviction, wasn’t–

Mr. Cole: It did, Justice Ginsburg, but only because it interpreted the statute to be — to be limited to specific . . . members — active membership that is specifically intended to further the illegal ends of the group, precisely–

. . . .

Speech Tantamount to Material Support

Justice Kennedy: Suppose the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization.

Mr. Cole: Well, two things in response to that, Justice Kennedy.First, that is what the United States argued in Scales. And, again, the Court, not only in Scales but in a host of cases striking down Communist Party statute, said you have to distinguish between aid that’s intended to further lawful activity and aid that’s intended to further illegal activity when it’s in the form of protected activity — association, here speech and association.

And, secondly–

Justice Stevens: In those cases, the real question was whether membership was enough, wasn’t it?

Mr. Cole: Active membership . . .  which the government says constitutes more than mere nominal membership.

Justice Kennedy: And this is support. It’s different.

Mr. Cole: Well, Your Honor, in De Jonge, one of these cases, one of this Court’s first First Amendment cases, the government argued that Mr. De Jonge aided the Communist Party in its illegal ends by conducting a meeting for them and being their lead speaker at the meeting.

And this Court said: We’ve got to look at what he did, and what — yes, he conducted the meeting; yes, he was a member of the Communist Party; yes, he solicited people to join the Communist Party.

But what did he do? He advocated lawful peaceable activities.

Justice Kennedy: But there wasn’t a statute on the books that prohibited material support–

Mr. Cole: Well, I don’t think it would–

Justice Kennedy: And here there is, and this is in aid of that prohibition.

Mr. Cole: Right, but Your Honor, what would — if Congress came along after the Communist Party cases and said, okay, you’ve said we can’t make it a crime to criminalize membership in the Communist Party; we are now going to make it a crime to speak in conjunction with the Communist Party — do you think the decisions would have come out any differently?I don’t think so, because this Court has said that speech is different from money, that it–

Justice Scalia: I think it’s very unrealistic to compare these terrorist organizations with the Communist Party. Those cases involved philosophy. The Communist Party was — was — was more than a — than an organization that — that had some unlawful ends. It was also a philosophy of — of — of extreme socialism.And — and many people subscribed to that philosophy. I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.

Mr. Cole: Your Honor, this Court accepted Congress’s findings.Congress’s findings were not that this was a philosophical debating society, but that it was an international criminal conspiracy directed by our enemy to overthrow us through terrorism. . . .

Justice Scalia: They joined it for philosophical reasons. These terrorist organizations have very practical objectives. And the only reason for joining them or assisting them is to assist those practical objectives.

Mr. Cole: Well, I don’t think that’s — I don’t think that’s fair, Justice Scalia. The Humanitarian Law Project has no interest in furthering terrorism, but the Kurdistan Workers Party are the principal representatives of the — of the Kurds in Turkey. They do have an interest in protecting the rights of the Kurds. They do have an interest in encouraging the Kurdistan Workers Party to — to disavow violence and engage in lawful peaceful means of resolving their disputes . . . .

*  * Additional Materials  * * 

David Cole on the ‘Material Support’ Law and the Constitution, American Constitution Society, November 30, 2010 (YouTube)

David Cole, “The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine,” 6 Harv. L. & Pol. Rev. 147 (2012)

James Bamford, David Cole & Margaret Russell — PATRIOT Acts I & II: New Assault on Liberty?, The Independent Institute, November 2003 (YouTube)

Ron Rotunda: “The ABA Overrules the First Amendment” Read More

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Tribute to Lenny Bruce on the Occasion of the 50th Anniversary of His Death

This series is dedicated to the memory of John Sisko (1958-2016) —  artist, writer, teacher, gallerist, friend, and free-spirit. Sadly, his artistic tribute to Tom Paine never came to pass. Still, his last words revealed the measure of the man, his revolutionary grain: “I have lived my life creatively and uniquely and on my own terms.” Yes you did, John. 

____________________

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(credit: NYT)

To commemorate the 50th Anniversary of the death of America’s most uninhibited comedian, I have prepared five posts for the occasion. My interest in Bruce traces back to my book with David Skover, The Trials of Lenny Bruce (2002 & 2012 — 10th anniversary issue / NPR interview), followed by our successful petition to Governor George Patakai to posthumously pardon the comedian.  

Recent & Related 

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 “Lenny Bruce – In His Own, Unheard, Words,” BBC, July 30, 2016 (“Fifty years since Lenny Bruce died, Mark Steel explores his legacy in the 21st century, drawing on personal tape recordings from a newly established Lenny Bruce archive at Brandeis University, as well as classic clips from some of his ground-breaking comedy and social commentary routines. With contributions from Lenny’s daughter, Kitty Bruce, and from those who knew and wrote about him, including author Laurence Schiller.”)

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Philip Eil, “50 Years After His Death, Lenny Bruce’s Spirit Lives,” The Forward, August 1, 2016

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Kelly Carlin, Rain Pryor, and Kitty Bruce Speak Out About Their Fathers and the Fight for Free Speech in Comedy” (FIRE: Video/Podcast) (really a remarkable video)

Kelly Carlin, Rain Pryor, & Kitty Bruce

        Kelly Carlin, Rain Pryor, & Kitty Bruce

Can We Take a Joke? (FIRE documentary featuring Lenny Bruce)

Paul Krassner, Remembering Lenny Bruce, 50 years after his death, Los Angeles Times, July 28, 2016

 Alex Wohl, Standup Philosopher, Brandeis Magazine, Summer (2016)

(Credit: Vice Squad Mag., April, 1963)

(Credit: Vice Squad Mag., April, 1963)

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Lenny Bruce – 50 Years Later: Still Funny & “Unsafe”

Warning: The man of whom you are about to read once offended many, and his words continue to do so today.  

Lenny Bruce died for our sins.

FileLenny-bruce-on-stage.jpgOkay, it’s just a joke.

Still, the uninhibited comedian’s legacy did have its redemptive side. After he died, fifty years ago today, no comedian was ever again prosecuted for word crimes uttered in a comedy club. By that cultural measure, Lenny Bruce became the patron saint of standup comedians who freely mock those who trade in hypocrisy.

Before there was Larry David, Penn Jillette, Margaret Cho, Lisa Lampanelli, Chris Rock, or George Carlin, there was Lenny Bruce. He was the quintessential take-no-prisoners comedian. His comedic fare was robust; his style avant-garde; his method crude-blue; and his message upset some and delighted others. Did he shock? – yes. Did he offend? – yes. And was he funny? – yes, outrageously so, at least at his best moments. It’s all in a new documentary titled Can We Take a Joke?

Taboo: That was his off-limits destination. En route he tore into hypocrisy with buzz-saw vigor. No matter the subject – race, religion, politics, or sex – Bruce gave no dime to the Sunday-pious crowd. But when one deals in the forbidden, when one mocks the righteous, and when one does so with razor-cutting humor, there are consequences.

Such as?

Lenny Bruce was prosecuted for obscenity in San Francisco, Los Angeles, Chicago, and New York for his comedy club bits. At great professional and financial cost, he was nonetheless exonerated in all of the cases except the one in New York. By the time the New York club owner (Bruce’s co-defendant) successfully appealed his conviction, Lenny was dead (broke, and with a needle spiked in his arm). He died a convicted comedian – the last one in our history.

(ht: Chuck Harter]

(ht: Chuck Harter]

December 23, 2003. On that day New York Governor George Pataki posthumously pardoned Lenny Bruce. “Freedom of speech,” he declared, “is one of the greatest American liberties, and I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve as we continue to wage the war on terror.”

The people who must never have power are the humorless. — Christopher Hitchins

Have we remembered that “reminder”? Yes, and no.

On the one hand, we now enjoy an almost unprecedented degree of free-speech freedom. It is our American badge of liberty — that willingness to tolerate that with which we disagree. On the other hand, anything deemed offensive is today banned on many college campuses. The trend is to create “safe zones” where students are protected from ideas or words that might upset them.

At Clemson University, unwelcome “verbal . . . conduct of a sexual nature” constitutes “sexual harassment.” This definition includes a vast amount of protected speech such as a joke or comment that any student subjectively finds to be offensive.

At Clark University, its Code of Student Conduct prohibits “telling jokes based on a stereotype.” Of course, that is something Lenny Bruce often did in order to combat the kind of prejudice lurking behind offensive stereotyping.

Grinnell College bans “bias-motivated incidents,” which include “an expression of hostility against a person, group, or property thereof because of such person’s (or group’s) . . . religion . . .” By that measure, Bruce’s irreverent “Religions Incorporated” and “Christ and Moses” routines could be banned at Grinnell.

Florida State University’s “A Summons to Responsible Freedom” defines “Sexual Misconduct” to include “unwanted [or] unwelcome . . . sexual or gender-based . . . comments.” By that punitive gauge there is much in Bruce’s How to Talk Dirty and Influence People (1992, reissued 2016) that would catch the censorial eye.

And then there is the capper: Northeastern University’s acceptable use policy, which prohibits the electronic transmission of any material “which in the sole judgment of the University is offensive.” Lenny Bruce’s prosecutors used much the same subjective yardstick to indict him. If “Saint Lenny” were alive, he would have a devil of a time ripping into campus such speech codes, the ones that cabin the mind in solitary confinement.

When Bruce was posthumously pardoned, the comedian Tom Smothers said: “So many of us today owe so much to Lenny Bruce.” Indeed. Regrettably, it is a debt still owed on far too many campuses across this land. No joke!

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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)

* * * *

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)

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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)

* * * *  

 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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The Great University Chicago Trio (Kalven, Rosenfield & Ming) & Their Defense of Lenny Bruce

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Behold People v. Lenny Bruce.  And note his three lawyers who handled the appeal of his obscenity conviction for his performance at the famed Gate of Horn nightclub in Chicago (December 1962):

Harry Kalven & Maurice Rosenfield

Harry Kalven & Maurice Rosenfield

Professor Kalven, the famed First Amendment scholar, had long been critical of the Court’s ruling in Roth v. United States (1957) and its progeny. He aired those reservations in his seminal 1960 Supreme Court Review article titled “The Metaphysics of the Law of Obscenity.” Thus his interest in People v. Bruce; it presented itself as a test case to reexamine Roth.

William R. Ming, Jr. (credit: U. Chi. archives)

William R. Ming, Jr. (credit: U. Chi. archives)

To help Kalven move from the theoretical to the practical, Kalven collaborated with Maurice Rosenfield and William Ming — two friends, highly reputable lawyers, and colleagues from their University of Chicago Law School days.

Rosenfield, who once co-authored an article with Kalven, was a partner in the law firm of Devoe, Shadur, Mikva, and Plotkin. He had represented Hugh Hefner in the mid-1950s and into the 1960s, and had likewise filed an amicus brief in Roth on behalf of the Authors League of America (Abe Fortas was also on that brief).

Ming was the first African American professor at the University of Chicago Law School. He had been one of Thurgood Marshall’s advisors and worked with Marshall on the Brown v. Board brief (his name was listed between Jack Greenberg and Constance Baker Motley).

There is, to be sure, more to the story, much more.* Suffice it to say that in the end, the trio prevailed when the Illinois Supreme Court ruled in Bruce’s favor.

* See Ronald Collins & David Skover, The Trials of Lenny Bruce (2002), pp. 175-182.

For more on the Chicago connection, see “Laughter & the First Amendment,” Chicago Humanities Festival (Geoffrey Stone, Ron Collins, Judge Diane Wood & Judge William Bauer — introduced by Burt Joseph) (Geof stone was at his comedic best).

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We kill comedians don’t we? — The Lenny Bruce Story

We drove him into poverty and bankruptcy and then murdered him. We all knew what we were doing. We used the law to kill him. — Vincent Cuccia (one of Bruce’s NY prosecutors)

He died before his death. It was apparent that Wednesday (February 9) in 1966 when Lenny Bruce spoke at the Associated Students Speakers’ Program at the University of California, Los Angeles (UCLA). He rambled; he misspoke; he struggled; and, yes, he bombed. Pathetic. That’s one word. Sad. That’s another. Predictable. Yet another word.

In less than six months he would be officially dead. Who could not see it coming?

Lenny Bruce, left (credit: Getty Images)

Lenny Bruce, left (credit: Getty Images)

Bruce was broke, bankrupt, out of work, out of luck, friendless, divorced, depressed, and junked up. It was so bad that shortly before he died he tried to hit up his parole officer for $10. Worse still, he was a criminal—a year or so earlier he had been convicted and sentenced in New York for an “obscene” bit he did at the Cafe au Go Go.

They hunted him in San Francisco, Los Angeles, Chicago, and New York. It took its toll: the busts, the prosecutions, the trials, the appeals, and the alienation. And all this for his comedy. He was so taken with his legal plight that he largely abandoned comedy. Besides, by the time he spoke at UCLA no club would hire him. He was a sick and sad comedian, a man waiting to be fitted for a hangman’s noose.

The days of his outrageous humor—“obscene,” “blasphemous,” “sick”—were over. His great comic bits that once pierced the boils of hypocrisy were past tense. He was obsessed with the law; he had a childlike faith in it; and he long thought it would save him. By the time he found himself at UCLA surrounded by students—by that pinpoint in time—he came to a terrifying realization: it was over. Hence, when he spoke of the law, it was like listening to a man with an uncontrollable mental tic—a flick of the head, a fast-and-fleeting flash of an idea, and all capped off with a lunatic’s chuckle.

That day at UCLA much of the laughter was feigned. Or it was an uneasy laughter, an awkward gesture of sympathy. How could it be otherwise? The great Lenny Bruce—the TV and record star, the club star, the well-paid star, and the star of the hip generation—had been reduced to rubble. No wonder he babbled as he tried to speak of free-speech freedom; no surprise that he blathered on as he attempted to discuss the importance of courts and the rule of law; and no wonder it all went south when he sought to make sense of his life at the intersection of despair and destitution.

My point? What people saw that day at UCLA was a Lenny Bruce freak show. But the show, as they say, had to go on . . . and go on it did.

Death changed everything; it would bring Lenny back to life with everlasting applause. It was ironic: death was his best publicity agent. But why?

Because . . .

(Credit: UPI)

(Credit: UPI)

Dead Lenny was no longer a threat to anyone.

Dead Lenny could no longer offend the sensibilities of the righteous.

Dead Lenny was compliant.

That, at least, was the censorial hope. But there was more:

Dead, Lenny the man became Lenny the myth.

Dead, Lenny the uninhibited comedian became a cultural hero.

Dead, Lenny the unruly social commentator became packaged product, and

Dead, Lenny the once bankrupt comic became a cash cow for others

* * * *

It’s true: We feared Lenny alive / yet we love Lenny the dead hero.

Odd the way we turn the First Amendment into a death wish. It is to take a guarantee meant for the living and cram it into a coffin. The result: The censor’s past will likely repeat itself when the next Lenny Bruce comes onto a new life stage.

It is oft repeated: Lenny Bruce is the patron saint of comedians. There is truth there. After all, Lenny Bruce was the last comedian prosecuted and tried for word crimes in a comedy club. He paid the dues, and comedians were the everlasting beneficiaries. Hail Lenny; hail St. Lenny! Okay. But think of it: we canonize a (Jewish) comedian?

“I don’t want to end up like [Lenny Bruce], but I want to be like him.”—Margaret Cho

Which brings me to this question: Why should it be so? Why must we demand dead Lennys? Why not alive Lennys?

Why not celebrate the First Amendment by protecting speech that offends us, repels us, and even unsettles us? Is that asking too much? Perhaps. But that is what the First Amendment asks of us. No joke!

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FAN 118.1 (First Amendment News) Seasoned SCOTUS Appellate Lawyer Files Cert. Petition in “Public Official” Defamation Case

Here is what Tony Mauro once said of him: “Few lawyers — including the nine lawyers who wear robes to work — know the Supreme Court’s docket as well as” he does. “He is generally regarded,” observed Georgetown Law Professor Steven Goldblatt,  “as one of the best [Supreme Court lawyers] in the country.”

Roy T. Englert, Jr.

Roy T. Englert, Jr.

His name: Roy T. Englert, Jr. That name is known among those seasoned few in the Supreme Court Bar. He has argued 21 cases before the Court, including United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), a Freedom of Information Act case concerning privacy exemption. He won, this while he was Assistant to the Solicitor General.

Later, when he was at Mayer, Brown & Platt, he filed an amicus brief in United States v. Eichman (1990) (First Amendment challenge to Flag Protection Act of 1989)), this on behalf of Senator Joesph Biden, Jr. and in support of the Petitioner. There is, of course, more, much more.

One of Mr. Englert’s latest cert. filings is in Armstrong v. Thompson, submitted earlier this month. The issue in the case is whether all (or nearly all) law enforcement officers are “public officials” under New York Times Co. v. Sullivan (1964). Here is how his cert. petition opens:

“This case presents a recurring First Amendment question: whether a garden-variety law enforcement officer, with little or no role in setting public policy, must establish ‘actual malice’ to recover for harm caused by tortious statements. A number of Circuits and state courts of last resort—where many issues relating to the First Amendment and defamation are decided—have held that every law enforcement officer is a ‘public official’ under New York Times Co. v. Sullivan. Accordingly, those courts, including the court below, require each and every law enforcement officer to show ‘actual malice’ before recovering for any tort carried out through speech. In this case, despite an otherwise-error-free trial resulting in a jury verdict establishing that respondent had committed an established common-law tort, the court of appeals joined those courts and reversed on federal constitutional grounds after determining that Armstrong was a public official and that he had failed to prove ‘actual malice.'”

 Later, he argues that the “Court has . . . never determined how far down the government ranks the ‘actual malice’ standard applies. It has, however, unequivocally stated that not every public employee is a ‘public official.’ Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979). And it has made clear that the category ought to be limited to ‘those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.’ Rosenblatt v. Baer, 383 U.S. 75, 86 (1966); accord Gertz, 418 U.S. at 345 (equating ‘public official’ with someone who has “accepted public office’).”

Furthermore, Mr. Englert maintains that a “number of state courts have taken heed and held that low-ranking law enforcement officers are not public officials for purposes of the First Amendment. Kiesau v. Bantz (Iowa 2004); McCusker v. Valley News (N.H. 1981); Tucker v. Kilgore (Ky. 1964). Nevertheless, until 2013, there was an ‘overwhelming and entirely one-sided’ consensus among federal courts of appeals (as well as a number of other state courts) that ‘police officers are public officials for defamation purposes’—regardless of rank or role—because ‘there is a strong societal interest in protecting expression that criticizes law enforcement officers.’ Young, 734 F.3d at 553-54 (Moore, J. dissenting). In 2013, the Sixth Circuit stated (albeit in dicta) that courts holding the ‘consensus’ view ‘have misinterpreted federal law on the issue.’ Id. at 549 (opinion of the court). . . .”

“Certain state courts,” he notes, “have developed their own idiosyncratic, fact-based inquiries into whether police officers are public officials. . . .”

“Finally, there are courts that have (correctly) determined that there is nothing talismanic about the designation of ‘law enforcement.’ These courts have applied to ‘law enforcement’ employees the same rule that they would to any other government employee.” . . . . “

In light ion the above, Mr. Englert urged the Justices to “establish a clear rule that low-level law officers are not ‘public officials.'”

Other counsel for the Petitioner are: Lanora C. Pettit and Peter B. Siegal.

The time for filing on a response is on or before September 6, 2016.

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FAN 117.2 (First Amendment News) David Cole Named New National Legal Director for ACLU

I am deeply honored to take on the leadership of the ACLU’s national legal program. — David Cole

Tony Mauro over at the National Law Journal just broke the story:

ACLU Names Georgetown Law Prof David Cole as New Legal Director

Here are a few excerpts from Tony’s story:

Prof. David Cole

Prof. David Cole

“The American Civil Liberties Union announced Thursday that Georgetown University Law Center professor David Cole will be the organization’s next national legal director.”

“Cole, a leading liberal scholar and litigator, will replace Steve Shapirowho is leaving after 25 years in the job. Cole will conduct the ACLU’s Supreme Court practice and oversee the work of the organization’s nearly 300 lawyers, according to executive director Anthony Romero.”

“However, Cole’s new role will pose recusal issues for his wife, Judge Nina Pillard of the U.S. Court of Appeals for the D.C. Circuit, who has also been mentioned as a possible future Supreme Court nominee. The recusals may deprive the ACLU of a favorable vote in some instances. . . .”

“In addition to authoring several books and writing commentary for The Nation and The New York Review of Books, Cole has argued four cases before the high court, most recently the First Amendment case Holder v. Humanitarian Law Project in 2010.”

→ I will be writing more on this in my FAN blog for this coming Wednesday.

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FAN 117.1 (First Amendment News) Martin Garbus Files Defamation Suit on Behalf of Pete Rose

WHEREFORE Plaintiff Peter Rose demands a money judgment against Defendant John Dowd for the amounts described herein and an award of punitive damages, together with costs and expenses, including attorneys’ fees, of this action, and such other and further relief as the Court deems just and proper. — Martin Garbus (pro hac vice pending)

Martin Garbus, a lawyer who has done his share of First Amendment defense work, now finds himself on the other side of the constitutional divide.  According to an ESPN news story, Mr. Garbus is representing Pete Rose in a federal defamation suit against “John Dowd, who oversaw the investigation that led to Rose’s ban from baseball, for claims Dowd made last summer that Rose had underage girls delivered to him at spring training and that he committed statutory rape.”

Martin Garbus

Martin Garbus

“The complaint,” says the ESPN story, “was filed today in U.S. District Court in Pennsylvania. It cites a radio interview last summer with a station in West Chester, Pennsylvania, in which Dowd said, ‘Michael Bertolini, you know, told us that he not only ran bets but ran young girls down at spring training, ages 12 to 14. Isn’t that lovely? So that’s statutory rape every time you do that.’ . . . “

“The lawsuit also cites an interview with CBS Radio in which Dowd said, ‘He has Bertolini running young women down in Florida for his satisfaction, so you know he’s just not worthy of consideration or to be part of the game. This is not what we want to be in the game of baseball.'”

“Rose denied Dowd’s accusations. Bertolini has said he never made such claims. Former commissioner Fay Vincent, who was deputy commissioner at the time of Rose’s ban, has said that he did not remember such allegations. .  . .”

Rose v. Dowd complaint here. The three claims for relief set out in the complaint are: (1) “Defamation per se“, (2) “Defamation”, and (3) “Tortious Interference with Existing or Prospective Contractual Relationship.”

 Additional News Stories:

  1. Randy Miller, Pete Rose suing John Dowd for statutory rape accusations,” NJ.com, July 6, 2016;
  2. Debra Cassens Weiss, Pete Rose sues former Akin Gump partner for radio show comments, ABA Journal, July 7, 2016;
  3. Brian Baxter, Pete Rose (and Marty Garbus) Sue Ex-Akin Gump Partner, Law.com, July 6, 2016; and
  4. Greg Noble, Pete Rose sues John Dowd over allegations he had sex with underage girls, WCPO9, July 6, 2016.

Biographical Snapshot:  Ever the maverick, Mr. Garbus has represented everyone from:

  • the ribald comedian Lenny Bruce (Garbus was co-coounsel with Ephraim London in People v. Bruce),
  • to a woman in a libel case brought against a Daily News columnist for allegedly claiming she faked a rape).
  • He was on the brief for the Appellant in Jacobellis v. Ohio (1964) and was counsel for Viking Press in the Appellate Division of the New York Supreme Court in which the court dismissed a libel suit against a novelist (see New York Times, December 16, 1982).

See generally:

  • Nat Hentoff, “First Amendment Lawyer Punished,” Nevada Daily Mail, April 11, 1996 (“Garbus . . . followed his conscience to help someone he believed had been terribly wronged by a columnist and his newspaper. Let this be a lesson to law school students with a conscience.”)
  • John Sullivan, “Columnist Wins a Suit On Articles About Rape,” New York Times, February 7, 1997 (“The woman’s lawyer, Martin Garbus, said that the judge’s conclusions were wrong and that the ruling could provide an opportunity for a successful appeal, though his client had not decided whether to pursue the case.” — The case was dismissed and no appeal was taken.)
  • Martin Garbus & Richard Kurnit, “Defamation in Fiction: Libel Claims Based on Fiction Should be Lightly Dismissed,” Brooklyn Law Review (1985)