FAN 36 (First Amendment News) Forgotten Free Press Advocates — The Women Lawyers in NYT v. Sullivan

These three women were active in ACLU First Amendment work during those early years and had an enormously powerful and lasting impact on the law we enjoy today. — Joel Gora (longtime ACLU lawyer)

The news follows, but before it does I want to say a few words about three remarkable women and their roles in New York Times Co. v. Sullivan (1964). They are:

  1. Harriet Pilpel (1911-1991)
  2. Nanette Dembitz (1913-1989)
  3. Nancy F. Wechsler (1916-2009)
Harriet Fleischl Pilpel

Harriet Fleischl Pilpel

Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in the Sullivan case. Beyond the single sentence they receive in the Supreme Court Reports and in Anthony Lewis’ Make No Law: The Sullivan Case and the First Amendment (1991), the women are virtually unknown players in the First Amendment world. As their respective stories reveal, there is more, much more, to be said about the people in the landmark case and how it came to be so. (BTW: Doris Wechsler — the wife of Herbert Wechsler, the attorney for the Times — helped write the merits brief in Sullivan and is listed on it. She sat in the lawyers’ section when Sullivan was argued in the Supreme Court.)

Recently, I had occasion to say a few words about some of those people in connection with a conference hosted by the University of Oregon School of Journalism and Communications and the Law School, a conference to commemorate the 50th anniversary of Sullivan. That is how I came upon the ACLU brief filed in Sullivan.

The lead attorneys for the ACLU and the New York Civil Liberties Union were Edward S. Greenbaum (of the famed Greenbaum, Wolff & Ernst firm) and Harriet Pilpel. Melvin L. Wulf, Nanette Dembitz, and Nancy Wechsler were of counsel.

Here is how things began: Mel Wulf, the ACLU attorney, contacted Greenbaum and asked if his firm would file a brief on behalf of ACLU. Greenbaum agreed and, as Wulf recalls, Nancy Wechsler wrote the first draft along with help from Harriet Pilpel. Nanette Dembitz added her own comments, whereafter Wulf did the final read and edit. Greenbaum, the lead attorney, had little or no meaningful input on the brief. The ACLU brief was 37 pages long (plus appendix) and made three basic arguments:

  1. Alabama’s exercise of its long-arm jurisdiction over the Petitioners violated the First Amendment and the due process clause of the Fourteenth Amendment
  2. Alabama’s defamation law as applied to criticism of public officials on matters of public concern violated the First Amendment as applied to the states by way of the Fourteenth Amendment
  3. The trial judge denied the Petitioners due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment

Those arguments were teased in a variety of ways — e.g., Alabama’s use of its defamation laws was analogous to the Alien and Sedition acts; there was no reasonable basis for presuming malice or damages; and the trial was so rife with racial prejudice against the Petitioners as to deny them equal protection. More could be said about the brief, but for now let me leave it there so as to return to my sketch of the three women who contributed to the ACLU brief.

 Harriet Pilpel was an accomplished public-interest advocate with sterling credentials: A graduate of Vassar College and Columbia Law School (1936, second in her class), she went to wotk for the firm of Greenbaum, Wolf & Ernst. Later, she served as general counsel for both the ACLU (1979-1986) and Planned Parenthood. In 1982 she joined the law firm of Weil, Gotshal & Manges. During her career, she participated in 27 cases that came before the Supreme Court. She argued on behalf of Planned Parenthood in Poe v. Ulman (1961). She wrote yet other briefs for Planned Parenthood in cases such as Griswod v. Connecticut (1964, with Nancy Wechsler), Roe v. Wade (1973, with Nancy Wechsler), and Carey v. Population Services International (1977). Pilpel was also on the briefs for the Appellees in Harris v. McRae (1980).

In the free speech context, Pilpel was co-counsel with Edward Greenbaum in Farmers Union v. WDAY (1959), a statutory interpretation defamation case.

Harriet was very helpful in supporting my initial run for the ACLU National Board of Directors (a very competitive process), and she also debated Catharine MacKinnon about pornography at an ACLU Biennial Conference.Nadine Strossen

“The early reproductive rights movement challenged anti-obscenity Comstock laws. Pilpel was one of three attorneys who represented the Kinsey Institute in a lawsuit against the United States Customs Service, after an Indianapolis customs collector deemed sex-related literature “grossly obscene” and began impounding the materials in 1950. Seven years later, in 1957, she won the case before the Federal District Court.” (Source here). Pilpel also served on the boards of the Guttmacher Institute and NARAL, and was co-chair of the National Coalition Against Censorship. (For more information about her, go here, here, and here. See also Harriet Pilpel & Theodora Zavin, Your Marriage and the Law (1964).)

Nanette Dembitz

Nanette Dembitz

Nanette Dembitz was Louis Brandeis’ second cousin. Born in Washington State, she was a cum laude alumna of the University of Michigan. Dembitz, too, graduated from Columbia Law School (1938), where she served as an editor of the Columbia Law Review. As recounted in her obituary, “she was nevertheless unable to obtain a job in a New York law firm. One man, she said, told her that she might find a spot as a secretary, if she could type. She turned to public law, first as a legal research assistant to the New York State Constitutional Convention Committee. After working at the Justice Department [see here and here re her work there] and the National Labor Relations Board, she was volunteer general counsel of the New York Civil Liberties Union from 1955 to 1967. She was also a special counsel in family law for the Legal Aid Society. Mayor John V. Lindsay appointed her to the Family Court in 1967. . . In 1972, voters rejected her campaign to become the first woman elected to the Court of Appeals, the state’s highest court.” (See election ad here with endorsements from Gloria Steinem, Bella Abzug, Betty Friedan, and Shirley Chisholm)

Dembitz co-authored an ACLU amicus brief with Mel Wulf that was submitted to the Supreme Court in Lamont v. Postmaster General (1965), the first case to strike down a federal law on First Amendment grounds. With Edward J. Ennis, she wrote the merits brief in a citizenship case, Afroyim v. Rusk (1967). Other cases in which she contributed to briefs submitted to Supreme Court include: Nelson v. Los Angeles (1960), DeVeau v. Braisted (1960), Douglas v. California (1963), Wheeldin v. Wheeler (1963), and  Boutolier v. Immigration Service (1967).

Her scholarly works include: “Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions,” 45 Columbia Law Review 175 (1945) (see William Wiecek’s comments here), and “The Supreme Court and a Minor’s Abortion Decision,” 80 Columbia Law Review 1251 (1980). See also her “Welfare Home Visits: Child versus Parent” article published in the American Bar Association Journal (Sept., 1971).

Nancy F. Wechsler

Nancy F. Wechsler

→ Like Harriet Pilpel and Nanette Dembitz before her, Nancy Wechsler was a Columbia Law School graduate (1940, top of her class). Here father was Osmond Fraenkel (general counsel to the ACLU); she was the sister-in-law of Herbert Wechsler, the Columbia Law professor who represented the Times before the Supreme Court. “In 1948, Wechsler joined Greenbaum, Wolf & Ernst, and began a storied career as a copyright and intellectual property lawyer. She garnered even more attention because of the firm’s representation of Planned Parenthood Federation of America, at a time when contraception and abortion were essentially outlawed. . . .” Along with Harriet Pilpel, she co-authored several amicus brief  submitted to the Court in reproductive rights cases. See Marc Stein, Supreme Court Decisions from Griswold to Roe (2010)

“The bulk of her career was spent representing publishers, authors, agents, and literary estate, while also taking on cases involving libel, obscenity, right of publicity, and other First Amendment issues. ‘It was a big deal to review a book for libel,’ she recalled. ‘You sat with the author and worked through the whole book. I did a lot of that.'” Robert F. Kennedy was one of her clients.

Note:  All five of the lawyers on the ACLU brief were Columbia Law School graduates.

→ I plan to say more about the ACLU brief along with yet others involved in the Sullivan case. Meanwhile, for other accounts of forgotten women in our free speech history, see Ronald Collins & David Hudson, “To the High Court: Olive Rabe Representing Rosika Schwimmer” (First Amendment Center, May 26, 2008), and “Remembering Two Forgotten Women in Free-Speech History” (First Amendment Center, May 27, 2008).

FCC Chairman Urged to Reject Petition Against use of ‘Redskins’ Name

This from a CBS news story: “The FCC has received a letter requesting its chairman, Tom Wheeler, reject a petition to deny the renewal of a Red Zebra Broadcasting-owned radio station’s broadcasting license, over its use of the word ‘Redskin.'”

“The initial 27-page petition, filed Sept. 2 by George Washington University law professor John F. Banzhaf III — who made his bones pushing for tobacco advertising reform — requested the FCC not renew WWXX (94.3 FM)’s license because it ‘deliberately, repeatedly, and unnecessarily broadcasts the word ‘R*dskins,’ and “actively encourages or indeed forces many other broadcasters to likewise broadcast a derogatory racial and ethnic slur. . . .'”

→ Forthcoming: Op-ed on FCC flap by Robert Corn-Revere (stay tuned)

Upcoming Yale Conference: “Public Health in the Shadow of the First Amendment”

→ Hosted by: Yale Law School, Yale Medical School, and the Yale School of Public Health

Date & Time: Friday, October 17, 2014 – 1:30 pm to Saturday, October 18, 2014 – 5:00 pm

→ Description: Public Health in the Shadow of the First Amendment will bring together leading scholars, key policy makers, and top experts in law, public health and medicine. This conference, the first of its kind, will investigate a broad range of complex constitutional issues raised at the intersection of medicine, public health, and the First Amendment.

The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion.  First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures.  For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.In addition, new and important questions about the limits of a legislature’s ability to mandate or forbid certain physician speech are emerging.  For example, should the First Amendment protect doctors from requirements that they provide patients with ultrasounds or medically unproven “information” in the abortion context, or mental health providers from restrictions on conducting reparative therapy for gay teens?

→ List of 26 participants here (Jack Balkin, Jane Bambauer, Alex Kozinski, Robert Post, Fred Schauer, David Vladeck, and Eugene Volokh, among others)

→ For more information, go here.

→ See also: John Robertson, “Free Speech, Medicine, and Public Health: An Overview of Issues,” Balkinization, Oct. 14, 2014

First Amendment Award to Alan Keyes

“Former Ambassador Alan Keyes, who served as a high-level Reagan-era diplomat and today continues his advocacy for the constitutional republic that is America, writing as a commentator for WND, is being honored with the Christopher Reeve First Amendment Award by the Creative Coalition, a nonpartisan political advocacy organization for the entertainment industry.The award will be presented at the annual Spotlight Awards Gala Tuesday [Oc. 14, 2014] in New York City.Keyes, who 17 years ago became the second regular columnist for WND, behind WND Founder and CEO Joseph Farah, said he was a little surprised when he was notified that he had been chosen, given that past recipients include Sean Penn, Harry Belafonte, Walter Cronkite and Rep. Charles Rangel.”

Source: Seth Johnson, “Alan Keyes to receive Christopher Reeve 1st Amendment award,” WND Faith, Oct. 14, 2014

1st Circuit: Adult-Entertainment Zoning Regulations Unconstitutional

Writing in the Constitutional Law Prof blog, Professor Ruthann Robson noted: “In its opinion in Showtime Entertainment v. Town of Mendon, the First Circuit reversed a grant a summary judgment for the Massachusetts town and found that the zoning bylaws infringed on Showtime Entertainment’s ‘right to engage in a protected expressive activited’ violated the First Amendment.”

“Judge Juan Torruella’s opinion for the unanimous panel first confronted the issue of whether the challenge to the zoning bylaws should be viewed as a facial challenge or as an as-applied challenge.  Here, there was ‘little practical distinction’: there were only four plots of land within the ‘Adult Entertainment Overlay District’ to which the bylaws applied.  But because the relief sought was an invalidation of the zoning bylaws, the court treated the challenge as a facial one. Additionally, the court discussed whether the town’s actions should be judged as content-based, thus meriting strict scrutiny, or should be judged as content-nuetral, meriting intermediate scrutiny.  The court withheld its conclusion, finding that the zoning bylaws failed even the more deferential intermediate scrutiny standard.The problem for the Town was that its stated governmental interests — its proferred secondary effects — did not further a substantial governmental interest unrelated to the speech. . . .”

  The opinion: Showtime Entertainment v. Town of Mendon (1st Cir., Oct. 8, 2014)

 → Prevailing counsel: Thomas Lesser with Michael Aleo on the brief for Appellant.

Joel Gora

Joel Gora

Debating Campaign Finance: 6 Views

 Steven D. Schwinn, “Court Rejects Challenge to Disclosure Requirement,” Constitutional Law Prof Blog, Oct. 9, 2014

→ Andrew Tutt, “McCutcheon Calls for a National Referendum on Campaign Finance (Literally),” Columbia Law Review Sidebar, Oct. 13, 2014

Justin Levitt, “Electoral Integrity: The Confidence Game,” New York University Law Review (forthcoming, 2014)

→ Todd Pettys, “Campaign Finance, Federalism, and the Case of the Long-Armed Donor,” University of Chicago Law Review Dialogue (2014)

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LastFAN Column: #35 — “Clear & Present Danger in the states — Holmes’s Legacy

Next Column: #37 — Wednesday, Oct. 22, 2014

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