Breaking News from the New York Times:
“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”
“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”
Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands. I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)
Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban
By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).
Among other things, Gilbert Roe was the lawyer for the Free Speech League. He knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.
Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.
In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.
Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)
→ Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).
- Gilbert E. Roe, Our Judicial Oligarchy (1912) (introduction by Robert M. LaFollette)
- Gilbert E. Roe, “Reasonable restrictions upon freedom of assemblage” (1915) (Free Speech League pamphlet)
→ Gilbert Roe died in 1929.
* * * *
Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.
The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free Speech. Here is the abstract:
“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”
“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”
“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”
How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well. I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting). But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.
“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”
“What followed was the most enjoyable scholarly experience of my career: a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech. I only hope I have done him justice.” [Source: e-mail to RKLC]
→ Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”
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