Site Last Updated
|
|
|
|
Site Last Updated
|
|
|
|
|
|
|
Reviews The Lives Behind The Cases Speaking Our Minds: Conversations With the People Behind Landmark First Amendment Cases, by Joseph Russomanno (Lawrence Erlbaum Associates, 2002). What was it like for a 13-year-old girl from Iowa to receive death threats for wearing a black armband to school in protest of the Vietnam War? How did a lawyer deal with his conscience when defending a teenager who burned a wooden cross in an African-American family's front yard? And what strategies were devised to persuade nine Supreme Court Justices to side with a pornographer over a preacher? Joseph Russomanno brings these stories to life in Speaking Our Minds: Conversations With the People Behind Landmark First Amendment Cases. Ten of the past quarter-century's major First Amendment cases are explored through oral histories of the parties involved as well as excerpts from the court opinions. The profiled cases highlight issues ranging from invasion of privacy and intentional inflection of emotional distress to broadcast and cable television regulation, and the interviewees are equally diverse. But as Russomanno notes, they all "share at least one thing: They spoke not only for themselves, but also for a society that is founded on First Amendment rights, and a belief system that defends the ability to express opinions even when a majority may disagree with the specific view being proclaimed." The book commences with the most important case in the history of youth free expression, Tinker, et al. v. Des Moines Independent Community School District, in which three adolescents contended that their act of wearing black armbands in protest of the Vietnam war was protected by the First Amendment, despite its violation of school policy. Many remember the famous line from Supreme Court Justice Fortas's opinion: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," but as Russomanno shows - the young appellants paid a price for it. In addition to being teased by their classmates, they received prank calls and death threats, and the Tinker family even had red paint splattered on their house. "Well, I think through history we've learned that sometimes you have to violate rules and challenge things. You can't always accept the status quo," explained co-appellant Mary Beth Tinker. Their journey through America's legal system proved to be a memorable - albeit overwhelming - one. "Who thought a little case from Des Moines over a little piece of cloth would end up here?" marveled Christopher Eckhardt, another co-appellant. After presenting the young "heroes" of the First Amendment, Russomanno then spotlights its youthful "villains" of R.A.V. v. City of St. Paul, Minnesota, who burned a wooden cross in a black family's front yard, in violation of a St. Paul ordinance forbidding conduct that could be construed as racist. Russomanno was unfortunately unable to track down the appellants of this case, but attorneys Ed Cleary and Michael Cromett poignantly revealed their personal inner turmoil about it. "People reacted like I was a little crazy, or more importantly, hiding a racist or political agenda of some sort," Cleary said. "I felt a chill like I had read my obituary - being referred to as the cross-burning lawyer, which would not be the nicest epitaph." Yet both men willingly made that sacrifice for what they believed to be a higher purpose. "If you're going to allow people to regulate speech that you don't agree with, it can't be too long before your speech - speech that you agree with - will be limited too," Cromett reasoned. All nine justices agreed the law was unconstitutional, but for different reasons. (Cross-burning isn't always protected by the First Amendment, as the Court ruled in Virginia v. Black this past term.) The most entertaining chapter is undoubtedly Hustler Magazine and
Larry C. Flynt v. Jerry Falwell, which was spurred by the parody Campari
liqueur ad Hustler magazine published in November 1982 that featured
the Rev. Jerry Falwell as a celebrity endorser. After admitting his "fist
time" was with his mother in an outhouse, Falwell is shown reflecting:
"I always get sloshed before I go out to the pulpit. You don't think
I could lay down all that bullshit sober, do you?" Attorney Alan Isaacman rose to the challenge of defending the ever self-incriminating Flynt, who stated in his deposition that he intended to "assassinate" the character of Falwell. Fortunately, as Isaacman gleefully remembered, the Supreme Court had a sense of humor about the case: Justice Rehnquist even doubled over laughing at one point. In the end, the Highest Court ruled that in order to protect the free flow of ideas and opinions on matters of public interest, the First Amendment had to prohibit public figures from recovering damages for being the butt of unflattering jokes. The case not only saved the careers of late night satirical hosts like Jay Leno and David Letterman, but brought Falwell and Flynt closer together as well. "I've always known where he's coming from," Flynt admitted. "I talk to him regularly. I've gotten to know him very well." The final case in in Speaking Our Minds highlights the first of a series of challenges to Internet regulation. The Communications Decency Act of 1996 aimed to deny minors access to "indecent" or "patently offensive" material online by subjecting anyone who made such content "available" to minors to criminal prosecution. (Since most Web sites are available to anyone with a computer, the CDA essentially criminalized almost all "indecent" speech online.) The Internet was such a novel form of communication back then, that only one of the 12 judges the ACLU attorneys argued before had actually been online. During the U.S. District Court trial in Philadelphia, they wired the courtroom and gave the three-judge panel a virtual tour of the World Wide Web. "They… were wowed by it, and as a result wanted to do everything they could to protect it and ultimately they were able to issue a lot of fact findings that showed that they felt the Internet was not like broadcast television and shouldn't be subject to the weaker First Amendment standard, but rather the contrary - it should be entitled to the highest degree of First Amendment protection because it was such a speech-enhancing medium," said ACLU attorney Ann Beeson. Beeson and her colleagues went on to defeat the 1998 successor of the CDA, the Child Online Protection Act, as well. (They won that case twice in front of the U.S. Court of Appeals for the Third Circuit; the Supreme Court has not yet given a final decision.) Last month, however, the Supreme Court upheld Congress' third attempt to censor the Internet - the Children's Internet Protection Act - by a 6-3 vote. Russomanno's interviews beautifully capture the intensely personal - and painful - nature of much First Amendment litigation. Dan Cohen, the campaign adviser who got fired after a newspaper identified him as the source of unflattering information about an opponent despite the reporter's promise to the contrary, put it best during his discussion of Cohen v. Cowles Media Company: "What really was at stake here, so far as I was concerned, was my life. I was not going to let these arrogant bastards get away with that." One can't help but feel sympathy for these litigants, regardless of their stances, as they are challenged on actions driven by principles and beliefs rather than greed, jealousy, or lust. Their very character is often on the line, and - in the rare event that their case gets to the Supreme Court - nine total strangers decide the fate of it. This all causes one to reflect on the efficacy of the system: is litigation the best way to resolve some of these deeply divisive disputes, and what are the costs to the litigants? As Cohen's attorney Elliott Rothenberg noted, "You've got flesh and blood people here. It's not just ivory tower general legal principles. People are actually getting hurt." But while Russomanno attempted to recreate the fiery debates that First Amendment litigation often inspires, he only managed to interview parties from both sides of the story in two of the 10 cases. Though it is doubtful that anyone could have gotten the Rev. Jerry Falwell or Dr. James Desnick (the ophthalmologist who sued ABC's PrimeTime Live for using hidden cameras during its investigation of his shoddy medical practices) to agree to a such an interview, it is perplexing why Russomanno did not appear to have reached out to the family in whose backyard the cross had actually been burned. (And if he did, he should have mentioned it.) Moreover, several of the interviewees - in particular, Sam Donaldson of ABC News - used the experience more as an opportunity for self-promotion than historical preservation. Indeed, many of the transcripts could have benefitted from substantial editing. Nevertheless, Speaking Our Minds is an absorbing read for anyone interested in the First Amendment and its colorful social history. Stephanie Elizondo Griest |
|
|
|