Books in the Law
From Washington Lawyer, May 2011
By Ronald Goldfarb
By Ronald K. L. Collins and Sam Chaltain
Oxford University Press, 2011
In We Must Not Be Afraid to Be Free: Stories of Free Expression in America, Ronald K. L. Collins and Sam Chaltain analyze important First Amendment issues that raised recurring conflicts in our nation’s history. They do so in a storytelling fashion that provides easy yet authoritative readings, for students especially. Their case histories are familiar ones that experts and lawyers will know; they have been written about before in greater depth. But for a panorama of interesting conflicts, most not resolved now, or probably ever, this book is an easy introduction for neophytes and a fresh reminder for professionals. It is an engaging primer that includes key First Amendment cases (Anastaplo and Gitlow), precedent–setting decisions on pornography and obscenity, flag burning, hate speech, students’ rights, libel and defamation, along with interesting collateral materials—a thorough list of leading First Amendment cases, an interview with the late U.S. Supreme Court Justice Hugo Black, and analysis of Professor Alexander Meiklejohn’s important theories about free speech.
Their essays are succinct but inclusive. In 34 pages, the authors synthesize the line of cases dealing with hate speech. Focusing on a 1992 St. Paul, Minnesota, cross burning decision, they describe the related decisions that distinguished between point of view and threatful action, between expressions and conduct—notions not always separated by a clear line.
The era of political correctness has included sensitivity to verbal attacks on race, religion, sexual orientation, and ethnicity, which, First Amendment purists claimed, resulted in “outsider jurisprudence.” When are words and images equivalent to action, and arguably are not free expression protected by the First Amendment? The line of Supreme Court cases on the subject—not all so clear in their conclusions—is presented, leaving a general principle in place, but an unpredictable future. Courts will continue to grapple with distinguishing between acts and ideas, and imaginative attorneys will continue to advocate the policies for favoring one over the other.
Collins and Chaltain draw on the seminal writing of professor and philosopher Zechariah Chafee and precedential Supreme Court cases to analyze the relationship between defamation and libel and constitutionally protected free speech. They describe the career and cases of a First Amendment lawyer Elmer Gertz to tell this story, along with interesting asides about former president Richard Nixon relating to the public–private distinction courts use in measuring responsibility for libel, and the standards of care that apply in cases that balance the need for a robust debate of issues with the need for responsibility for false criticism.
The authors juxtapose biographical information about civil rights lawyer Robert Carter and Justice Black to discuss one confounding area of First Amendment constitutional law—freedom of association. Justice Black was a Ku Klux Klan member as a young Alabama politician but a civil libertarian’s hero in his career on the Court; he advocated absolutism in First Amendment issues. Carter was a NAACP attorney who argued important First Amendment cases before the high court. The authors use these historic figures to relate the background of an important case, NAACP v. Alabama, which dealt with the First Amendment’s freedom of association provision.
In the heat of the civil rights revolution in midcentury, hostile state legislatures attempted to expose and harass NAACP members by subpoenaing the organization’s membership lists. Ironically, northern legislatures did the same to expose Ku Klux Klan members, and southern states relied on the precedent, approved by the Supreme Court in 1928. Carter argued to the Supreme Court in 1958 that for NAACP members to band together to fight segregation, they needed to do so anonymously. The Court ruled—Justice John Marshall Harlan II wrote the opinion; he, the grandson of the author of the dissent in Plessy v. Ferguson, a notable trivia of Court lore—that lawful association included the right of anonymity. Unlike the 1928 Ku Klux Klan case, which dealt with illegal activity, the NAACP was involved in legal activity, and thus its rights were immune from public scrutiny where the purpose was subversive.
Other recalcitrant southern states supported Alabama’s position and argued to the Court that the NAACP should not be treated like “a favored child.” Conservative justices feared that federal courts could be accused of improper judicial activism in their efforts to protect and enforce civil rights laws. It wasn’t until 1964, after eight years of litigation, that the Supreme Court ruled in the Alabama case that the NAACP’s organizational records were protected from the state’s intrusion.
Their history is relevant today. There is a current line of cases dealing with anonymity where the Court again has been called upon to justify inquiries about membership lists of state referenda signators and voters’ identification where anonymity was claimed to protect the privacy of those sought to be identified.
The authors’ treatment of the Pentagon Papers case, a notorious incident during the Vietnam War era, will remind those of us who lived through those times and inform those who came after it, that there is an important lesson to learn, one we should remember today. Solicitor General Erwin Griswold, who argued that case in the Supreme Court, urged that national security was endangered by the press’ publication of those papers describing our involvement in the war. The Supreme Court ignored his claim and ruled—as ample precedent provided—that the First Amendment prohibits prior restraint. That same, then ex–solicitor general wrote years later that no national security danger had occurred when the Pentagon Papers were published. In fact, those Papers proved the government was hiding embarrassing information about its prosecution of a costly and questionable war.
Today, the nation grapples again with the tensions between disclosure of public information and claims that publication will endanger national security. The authors use this case to explore the historic sources of the rule against prior restraint in the writings of John Locke, John Milton, Benedict de Spinoza, Sir William Blackstone, and the Supreme Court in Near v. Minnesota (1931). Get the debate out in the open, federal trial judge Gerhard Gesell ruled when the government sought to prohibit The Washington Post from publishing the Pentagon Papers, as The New York Times did. The stories were published, and the Republic did not fall, as the government warned. The whole litigation was called by one biographer (of Justice Black) “a theatre of the absurd.”
Readers of this chapter should come away recalling the words of Justice Black in that case:
The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic … paramount among the responsibilities of a free press is the duty to prevent … government from deceiving the people and sending them off to distant lands to die.
This engagingly written tour of First Amendment law will interest political scientists, prelaw and law students, and lawyers with a special interest in the subject. The authors present their expertise in a storytelling, literary style, and their authoritative mastery of their subject is evident.
Ronald Goldfarb is a Washington, D.C. attorney and author. E-mail him at email@example.com.