Category: General Law

0

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!

0

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)

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)

* * * *  

 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.

0

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).

0

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!

0

The Bill of Rights and the Cold War

I’ve been hard at work on my Bill of Rights book (three chapters to go), which explains my recent absence here.  I’ll have more posts coming up shortly, but I did want to mention one part of my ongoing research.

The final chapter of the book is about the Bill of Rights and the Cold War. In a symbolic sense, that connection can be seen in the fact that the original Declaration of Independence, Constitution, and an original parchment of the proposal from the First Congress that became our Bill of Rights were all descend each night into a vault that was designed to survive a nuclear bomb. More interesting, though, is that the party platforms that invoked the Bill of Rights after the Second World War almost always did so in the context of fighting communism.  For instance:

The 1956 GOP Platform: “We hold that the major world issue today is whether Government shall be the servant or the master of men. We hold that the Bill of Rights is the sacred foundation of personal liberty. That men are created equal needs no affirmation, but they must have equality of opportunity and protection of their civil rights under the law.”

The 1960 Democratic Platform: “With democratic values threatened today by Communist tyranny, we reaffirm our dedication to the Bill of Rights. Freedom and civil liberties, far from being incompatible with security, are vital to our national strength.”

I’ll have some more on this as the chapter gets written.

10

The Second Amendment: Constructing Racial and Gender Hierarchy

As posts two and three suggest, social justice feminist (SJF) methods illuminate aspects of the Second Amendment’s history that the Court ignored but are essential to understand fully its social meaning.

At ratification, the right to keep and bear arms helped construct notions of citizenship, race, and gender.  Reconstruction challenged those ideas, but failed to dismantle them in the face of hate group terrorism.  Indeed, hostilities such as the Hamburg Massacre illustrate that the right to keep and bear arms was integral to reinforcing white hegemonic masculinity.

SJF shows that the Second Amendment does more than just support patriarchal norms of defending family, home, and hearth. It is a bulwark for the citizen-self, which has been raced and gendered from the founding.  The right to keep and bear arms has served as both a gatekeeper to and symbol of gaining that status.

What does this mean for today?  In the article upon which these posts are drawn, “Guns, Sex, and Race,” I argue that, by ignoring the racial and gender history of the Second Amendment, the Court protected and reinforced intersecting race- and gender-based oppressions as they relate to gun ownership and use.

Consider Stand Your Ground (SYG) laws.  In 31 states, such statutes allow people to use deadly force for self-defense purposes in home or in public with no duty to retreat.  Many of those jurisdictions provide immunity to persons asserting SYG.  The American Bar Association  reported on significant racial disparities it found in surveying these laws last year:  for example, a white shooter of a black victim is 350 times more likely to found justified than a white shooter of a white victim.  The ABA also reported that similar fact patterns yielded drastically different outcomes.

The cases of George Zimmerman and Marissa Alexander, Florida residents who sought refuge under SYG, are useful examples.  As is well known, Zimmerman shot and killed unarmed teenager Trayvon Martin in February 2102.  Police used their discretion not to arrest Zimmerman at the scene because he claimed he had acted in self-defense.  A jury ultimately acquitted him of second degree murder based on instructions that included SYG language.

The same year, Marissa Alexander, an African American woman, was sentenced to 20 years for firing a warning shot in the air out of fear of imminent abuse from her partner, who walked away unharmed.  The court denied Ms. Alexander’s attempt to assert SYG, which an appeals court affirmed.  As Catherine Carpenter has explained, SYG provides no relief for women such as Ms. Alexander defending themselves against battering cohabitants because both parties have an equal right to be the residence.

Race and gender combined powerfully in these cases.  With respect to Zimmerman’s encounter with Martin, they intersected to construct the teen as being a menace, even though he was armed with nothing more than Skittles and iced tea.  For Alexander’s efforts against an abusive partner, on the other hand, patriarchal norms protected the functional or titular head of the household, even when he was posed a real threat to his cohabitant.

Heller and McDonald suggest that the Court’s vision of Second Amendment promotes autonomy and individual rights.  However, as SJF methods demonstrate, by ignoring essential parts of the provision’s text and history, the Court has merely reinforced race- and gender-based barriers.

SJF reveals that the Second Amendment is an issue of concern for feminist legal scholars and advocates. In our efforts to dismantle the intersecting structural barriers confronting too many in our society, gun regulation should be on the agenda.

1

Feminist Legal Theorizing about the Second Amendment: (Re)constructing Black Citizens

The previous post in this series explored more deeply the text and context of the Second Amendment that the Supreme Court elided in Heller v. District of Columbia.  I argued that the right to keep and bear arms played a role in constructing “citizen” as white and male.  As I continue to draw upon my forthcoming article, “Guns, Race, and Sex,” this post next examines the Reconstruction era, when Congress repudiated that definition.

The Court examined this period in McDonald v. Chicago, when it held that that Second Amendment applies to the states.  Confining its reading of the narrative to instances in which whites sought to keep guns out of the hands from freed slaves, the majority reasoned that arming the former enslaved was essential to their self-defense, thus supporting the individual right first articulated in Heller.  But, social justice feminism reveals that the McDonald history was superficial and incomplete.

Consider this piece of lost history.

Read More

1

Feminist Legal Theorizing about the Second Amendment: Gun Violence is a Women’s Issue

Thanks so much, Naomi, for inviting me to blog this month.  It’s really an honor and pleasure to participate in the lively discussion on this forum.

Starting today, concealed weapons will be allowed on college campuses in Texas.  Ironically, this new law goes into effect on the solemn anniversary of the state’s largest mass shooting at none other than its flagship institution, the University of Texas.

More guns.  Just what we need.

After all, there haven’t been enough headlines about Black lives lost at the hands of police, or stunning murders of white police officers as they protected Black Lives Matter protesters.

Please forgive my sarcasm. I’m frustrated.  Before this year is out, I’m sure there will be more tragic slayings, more outpourings of grief and recrimination, but still no movement toward sensible reform of gun laws.

And, amidst the din, there is little to nothing coming from feminist legal circles.

Two summers ago, Nation commentator Dani McClain argued that “the murder of Black youth is a reproductive justice issue.”  Her call to action came to mind when I saw the “Mothers of the Movement” during the Democratic National Convention.  The mother of Jordan Davis, who was shot for playing his music too loud, openly hoped for a time when membership in this “club of heartbroken mothers” would shrink.

I had been puzzling over this issue for a while, struck by the no-regulation-no-time stance of the National Rifle Association.  In the context of reproductive justice, many have argued with success that the state’s interest in potential life trumps women’s fundamental interest in bodily integrity (thankfully, with Whole Woman’s Health v. Hellerstedt, the Court finally has drawn a line over which states cannot cross).  Imagine if potential gun buyers had to jump through the same hoops as women seeking abortions. As district court judge Myron Thompson stated in Planned Parenthood v. Strange, the legislature would have “a heck of a lot of explaining” to do.

Hypotheticals aside, it doesn’t take much digging to see the gendered and raced aspects of gun violence.  An August 2015 survey by the Ms. Foundation for Women showed that violence is a top concern for women.  Firearms figure prominently in the domestic violence context.  According to the Pew Research Center, gun owners are predominantly male and white—they are 82 % of firearm owners.

So, in the next three blog posts, I accept McClain’s challenge and apply a feminist analysis to the issue of guns in the nation.  Given the medium, the exploration will be brief; but, I discuss it more fully in a forthcoming article upon which my posts are drawn, “Guns, Sex, and Race:  The Second Amendment through a Feminist Lens,” which will be published in the Tennessee Law Review.

The feminist lens that I’m using is one that is intersectional and rooted in feminist legal practice:  social justice feminism (SJF). SJF emerged from practitioners responding to the calls from women of color and other marginalized women to recalibrate the women’s movement with a focus on their needs.  As my colleague Kristin Kalsem and I have explained, SJF is about uncovering and dismantling social and political structures that support patriarchy, while “recognizing and addressing multiple oppressions.” SJF methodologies focus on historical context, structural inequities, intersecting oppressions and underserved populations.  In so doing, they reveal issues liberal feminism might fail to recognize as having gender implications.

SJF’s historical method looks to the past in order identify the roots of structural inequalities and dismantle them.  In this sense, SJF follows in the footsteps of feminist and critical race theory in seeking to uncover lost histories, elevate the experiences of marginalized people, and reveal how traditional historical narratives mask and perpetuate subordination.

In the posts that follow, I will apply this methodology to the Court’s decisions in Heller v. District of Columbia and McDonald v. Chicago, cases that relied heavily on a so-called originalist telling of history.  However, SJF reveals the context omitted by the majorities in both cases—one that helped lay the foundation for a race-and gender-based social hierarchy.

0

Guest Blogger – Verna Williams

Verna Williams, Law professor

Verna Williams

I am delighted to introduce Professor Verna Williams as a guest blogger for the month of August.  Professor Williams joined the University of Cincinnati College of Law in 2001 after  many years of practice in the areas of civil and women’s rights.  She co-directs the University’s joint-degree program in Law and Women’s Studies and the Center for Race, Gender, and Social Justice.  Professor Williams teaches in the areas of  critical race theory, family law, gender discrimination, and constitutional law. In 2004 and 2011, she received the Goldman Prize for Teaching Excellence.

Prior to joining the faculty, Professor Williams practiced law in the private and public sectors. She was Vice President and Director of Educational Opportunities at the National Women’s Law Center, where she focused on issues of gender equity in education. During her time at the Center, Professor Williams was lead counsel and successfully argued before the United States Supreme Court Davis v. Monroe County Board of Education, which established that educational institutions have a duty to respond to and address complaints of student-to-student sexual harassment. She also practiced at the Department of Justice and at Sidley Austin LLP. Professor Williams began her legal career clerking for the Honorable David S. Nelson, U.S. District Judge for the District of Massachusetts.

Her forthcoming publications include

  • The Patriarchy Prescription: Cure or Containment Strategy? forthcoming, ___ Georgetown J. of Modern Critical Race Perspectives (2016)
0

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.