Category: First Amendment

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

IMG_4837

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

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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 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

_______________________________________________________

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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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)
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FAN 117 (First Amendment News) Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law

Columnist George Will held them out as the go-to group when it comes to the First Amendment and campaign finance laws. The group: The Center for Competitive Politics. Consistent with that reputation, the Center has recently prevailed in a challenge it leveled against  a Utah campaign finance law (Utah Taxpayers Association v. Cox). Here are some excerpts from a press release from the Center:

Screen Shot 2016-07-19 at 9.39.24 PM

“In an agreement approved by a federal judge this afternoon, Utah agreed not to enforce a state campaign finance law that violated the First Amendment. The complex law required nonprofit advocacy groups to register with the state and publicly report their supporters’ private information, threatening donations to those organizations.”

“The agreement, known as a consent decree, was approved by U.S. District Court Judge Dale A. Kimball and settles a lawsuit filed on behalf of three Utah groups by attorneys at the Center for Competitive Politics, America’s largest nonprofit working to promote and defend First Amendment rights to freedom of political speech, assembly, and petition.”

Allen Dickerson, CCP Legal Director and the lead attorney in the lawsuit said, ‘This complicated law chilled speech and association protected by the First Amendment. By regulating speech about any public policy issue and groups with only trivial connections to elections, Utah failed to regulate with the care the Constitution demands. We appreciate the work done by Attorney General Sean Reyes’s office to settle this litigation and provide necessary guidance to all advocacy groups in Utah.'”

The plaintiffs were represented by Center for Competitive Politics’ Allen Dickerson and Staff Attorney Owen Yeates.

Here are a few excerpts from the consent decree:

“The State Defendants and their agents, officers, and employees agree not to enforce the law currently codified at Utah Code Ann. §§ 20A-11-701 to -702, as modified to create a donor reporting regime by H.B. 43, because imposing such requirements on Plaintiffs for engaging in constitutionally protected political advocacy and political issues advocacy is unconstitutional unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose. In particular, the State Defendants will not impose fines against corporations for failing to comply with the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose; file or refer criminal charges against such corporations; or otherwise enforce the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose.”

Colorado Petitions SCOTUS in Campaign Disclosure-Requirements Case

The case is Williams v. Coalition for Secular GovernmentThe issue in the case is whether Buckley v. Valeo’s “wholly without rationality” test apply to all dollar thresholds that trigger campaign finance disclosures, or are thresholds below some as- yet-undefined amount subject to heightened constitutional scrutiny?

In its cert. petition Colorado notes:

“To trigger campaign finance disclosure regulations, States rely on dollar thresholds ranging from zero to amounts in the thousands. Recognizing that setting a disclosure threshold is a policy decision entitled to deference, this Court held in Buckley v. Valeo that disclosure thresholds must be upheld unless they are “wholly without rationality.” 424 U.S. 1, 83 (1976). The Tenth Circuit, however, has rejected this test. In two decisions, it has held that Colorado’s disclosure threshold for “issue committees” is too low, although it declined to explain what number would be constitutional. Under that reasoning, even groups that spend $3,500 on campaign advocacy—a figure over ten times greater than the amount that triggers similar disclosure regulations in other States—are exempt from Colorado’s disclosure laws.”

Colorado urged the Court to grant review for the following reasons:

“I.  This Court’s review is necessary to resolve the circuit split over the standard of review for campaign finance triggering thresholds.”

“A. The Circuits are split three ways over Buckley’s ‘wholly without rationality’ test.”

“B. The outcome below conflicts with cases from the Fifth, Ninth, and Eleventh Circuits, which uphold disclosure thresholds for issue committees ranging from $0 to $500.”

“II. The constitutional standards that govern campaign finance disclosure laws, particularly laws that apply in the ballot issue context, are exceptionally important in dozens of States.”

“III. Because it comes from the outlier circuit after a bench trial, this case is an excellent vehicle for resolving the confusion among the lower courts.”

Frederick Yarger, Solicitor Generall, counsel of record for Colorado.

The challenge to the Colorado law was brought by the Center for Competitive Policits.

The ACLU & Campaign Finance Laws: Marcia Coyle Interviews Outgoing Legal Director Steven Shapiro Read More

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FAN 116 (First Amendment News) Farber on Scalia & the Abortion Protest Cases

Professor Daniel Farber

Professor Daniel Farber

The current issue of the Minnesota Law Review Headnotes consists of a symposium on Justice Antonin Scalia. One of the contributors to that symposium is Professor Daniel Farber, whose contribution is entitled “Playing Favorites?Justice Scalia, Abortion Protests, and Judicial Impartiality.” His essay consists of an analysis of Justice Scalia’s views on four abortion protest cases and the First Amendment.

Here are a few excerpts from his introduction:

“[G]iven Scalia’s accusations of partiality in the abortion protest cases, a 2013 statistical study concluded that Scalia himself was far more likely to uphold the speech rights of conservative speakers than liberal ones, though the study has been subject to some methodological criticisms.”

“Taking a closer look at the abortion protest cases can shed light on these disputes over judicial bias in First Amendment cases. It can also shed light on two important aspects of Scalia’s work: his rhetorical style, which regularly featured scathing attacks on the motives or competence of other Justices; and his insistence that his own decision-making adhered to rigorous, objective methods of analysis.”

1199772_630x354“In reexamining the four abortion protest cases, my goal is not to decide whose views of the doctrinal issues were correct. Rather, it is to assess whether Justice Scalia or the majority stepped outside normal bounds in ways that might indicate bias. At the risk of eliminating suspense about the results of the inquiry, there seems to be more evidence of partiality on the part of Justice Scalia in these cases than on the part of his opponents.”

He concludes his essay by noting:

“In these cases involving abortion protesters, Justice Scalia accused the Court of ignoring well-established law in the interest of suppressing speakers with whom the majority disagreed. That was a serious accusation. It involved not only violation of the general judicial duty of impartiality and fairness toward all litigants, but also of the First Amendment’s own imperative of neutrality toward opposing viewpoints. A close examination of the relevant cases suggests little support for this accusation, although it is never possible to say with confidence that a case was completely unaffected by the biases or ideologies of the judges. . . . “

Headline: “Judge Rules Virginia Can’t Force Delegates to Back Donald Trump”

According to a story in the Wall Street Journal “Virginia can’t require Republican National Convention delegates to back Donald Trump, a federal judge in Richmond said Monday, though he made no ruling on whether the party can itself bind its delegates.”

“U.S. District Judge Robert Payne said the Virginia state law requiring delegates who oppose Mr. Trump to vote for him next week at the party’s convention creates ‘a severe burden’ on First Amendment rights.”

“But Judge Payne explicitly avoided weighing in on whether Republican National Committee rules requiring convention delegates to follow the results of their states as dictated by state and national party rules. Judge Payne said he “lacks jurisdiction to adjudicate” the broader unbinding question. . . .”

Bopp Petitions Court in Judicial Elections Free Speech Case  Read More