Medium 9781936227037

Figures of Speech

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Recounting controversial First Amendment cases from the Red Scare era to Citizens United, William Bennett Turner—a Berkeley law professor who has argued three cases before the Supreme Court—shows how we’ve arrived at our contemporary understanding of free speech. His strange cast of heroes and villains, some drawn from cases he has litigated, includes Communists, Jehovah’s Witnesses, Ku Klux Klansmen, the world’s leading pornographer, prison wardens, dogged reporters, federal judges, a computer whiz, and a countercultural comedian. This is a fascinating look at how the scope of our First Amendment freedoms has evolved and the colorful characters behind some of the most important legal decisions of modern times.

“Turner tells fascinating stories of unlikely heroes and explains difficult legal issues clearly and concisely, educating and entertaining at the same time.”—Elizabeth Farnsworth, The PBS News Hour

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1. Yetta Stromberg

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Yetta Stromberg was 19 years old when she was a counselor at a summer camp for young Communists. It was 1929. The camp was in the mountains near San Bernardino, California. The campers came from working-class Communist families from Los Angeles. The 40 or so boys and girls ranged in age from 6 to 16. The parents paid only $6 a week per camper, as all the adults at the camp, including Stromberg, were volunteers.

At 7:00 every morning, Stromberg led a flag-raising ceremony for the campers. As the children stood by their beds, one of them would raise a red flag while the others recited in unison this pledge:

I pledge allegiance to the workers’ red flag,

And to the cause for which it stands,

One aim throughout our lives,

Freedom for the working class.

On August 3, 1929, the camp was raided by several carloads of American Legion members from nearby Redlands, led by George H. Johnson, the district attorney of San Bernardino County. The raid was prompted by the Better America Federation of Los Angeles and the Intelligence Bureau of the Los Angeles Police Department, who were keeping a close eye on radical activities. The Federation, backed by business interests, believed the republic was being undermined by a subversive conspiracy directed by Bolsheviks in the Soviet Union.

 

2. Jehovah's Witnesses

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My constitutional law professor, the great Paul Freund, remarked in class that it seemed most of constitutional law was made by the milk industry and the Jehovah’s Witnesses. Indeed, the milk industry was frequently involved in disputes over such Commerce Clause issues as state and local laws establishing minimum prices, requiring local pasteurization, protecting against out-of-state competition, and so on. These cases were possibly of economic significance but were not thrilling for law students to read.

The Jehovah’s Witnesses cases, on the other hand, raised issues that go to the heart of what it means to be an American. You might expect the cases to involve the religious clauses of the First Amendment. But in fact the most important decisions have been based on the Free Speech Clause. The decisions do not simply protect the Witnesses’ right to practice their religion but protect the freedom of speech for all of us.

The Witnesses have been prolific Supreme Court litigants, accounting for an astonishing 72 decisions by the Court. They are unlikely users of the legal system, believing as they do that all the answers are in the Bible, not in law books. They proclaim that they “believe in the Bible as the Word of God. They consider its 66 books to be inspired and historically accurate.” Based on their interpretation of Scripture, they avoid all involvement in politics, discourage voting, and refuse to serve on juries or in the military.

 

3. Dannie Martin

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“I committed bank robbery and they put me in prison, and that was right. Then I committed journalism and they put me in the hole. And that was wrong.” So said Dannie Martin, a convict’s convict. A longtime heroin addict and alcoholic, Martin knew jails inside and out, mostly from the insider’s point of view. Caught red-handed in a bank robbery in a little town in Washington, Martin was sentenced to 33 years in federal prison.

Prison gave Martin plenty of time to complete the education he never got in the “free” world, and he was an avid reader. He started to write, and it turned out that he had a remarkable gift: the ability to write clearheadedly, honestly, and affectingly about life in prison. No self-pity here, no claims of innocence, no macho braggadocio, no prisoner clichès.

In July, 1986, while in the federal prison at Lompoc, California, Martin mailed off to the San Francisco Chronicle an article he wrote on AIDS in prison. It vividly revealed for the public how serious the epidemic was among prisoners. It landed on the desk of Peter Sussman, editor of the Chronicle’s Sunday Punch section. Sussman liked the piece, determined to publish it, added Martin’s byline, and sent a check for $100 as the standard freelancer’s fee. The article ran on Sunday, August 3, 1986, and readers liked it. Martin continued to submit articles, all first-person essays and vignettes of prison life, and Sussman continued to publish them. They covered diverse facets of prison life that captured the imagination of Chronicle readers and made Martin the most popular regular contributor to the Sunday Punch. One of my personal favorites was “Requiem for Mr. Squirrel,” a poignant story of how Martin alleviated boredom and the lack of meaningful relationships by feeding a grateful and friendly squirrel, whom the prison officials soon poisoned.

 

4. Raymond Procunier and Robert H. Schnacke

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Ray Procunier deserved to be considered a First Amendment villain. He authorized and defended the oppressive California prison censorship rules in Procunier v. Martinez. But he got a chance to redeem himself, and he rose to the occasion.

The occasion was provided by Robert Schnacke, a federal district judge in San Francisco. Schnacke, like so many judges, was a former prosecutor. While a U.S. Attorney, he had even prosecuted a sedition case in the McCarthy era, charging writer John Powell with having accused the U.S. military of using germ warfare in the Korean War. Schnacke was a crusty, conservative Republican known to be hostile to civil liberties cases. But he had a maverick streak as well, perhaps evidenced by his being caught in a noontime police raid of the Market Street Cinema adult theater in the Tenderloin.

Procunier and Schnacke were two curmudgeonly old-timers who found themselves on opposite sides of a very difficult First Amendment issue: whether prison officials can prohibit news organizations from televising executions. No American execution has ever been televised.

 

5. Earl Caldwell

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On June 15, 1969, the New York Times carried a story headlined “Black Panthers Serving Youngsters a Diet of Food and Politics.” It was an inside view of the Black Panther Party’s free breakfast program, and of its revolutionary indoctrination of African American young people in the San Francisco Bay Area. It was full of authentic detail, including the children’s repeating after a Panther leader: “I am a revolutionary; I love Huey P. Newton; I love Eldridge Cleaver; I love Bobby Seale; I love being a revolutionary; I feel good; off the pigs; power to the people.” An observer was quoted as remarking, “Say anything you want, but there is one unmistakable fact: Black Panthers are feeding more kids every day than anyone else in the whole state of California.”

The article was written by Earl Caldwell. It was one of at least 16 Times articles Caldwell wrote that year on the Black Panthers. The Times had hired Caldwell, an African American, because its white reporters had been unable to get access to the Panthers or establish any rapport with them. The Panthers paid no attention to press credentials or customary reporter-source practices. Caldwell was basically the Times emissary to the black radical movement. He had covered riots in several American cities in 1967 and 1968. He was the only reporter actually present at the assassination of Martin Luther King Jr. in Memphis and wrote the Times’s front-page story on it. Caldwell developed relationships with Panther sources and was the only reporter in the Times organization able to do so.

 

6. Richard Hongisto

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Richard Hongisto was an enigma: a maverick cop who became a politician, a jailer who became a First Amendment hero, a police chief who became a First Amendment villain. He helped in trying to open the doors of government. Later he acted like a petty tyrant and clumsily tried to suppress criticism that stung him. He lurched from friend of a free press to destroyer of newspapers.

Hongisto worked as a San Francisco police officer in the turbulent 1960s. He was the only white officer to testify in federal court on behalf of the plaintiffs in a lawsuit alleging discrimination against African Americans on the police force. In 1971, he ran for Sheriff against the longtime incumbent and won an upset victory. As sheriff, he recruited minority deputies, appointed the first openly gay deputy, and tried to improve jail conditions. In charge of the San Francisco jails, he opened the doors to the press. In 1972, for example, he allowed local public television station KQED to do a 90-minute live television program from inside the jail. It vividly showed squalid jail conditions and included on-the-spot interviews with both prisoners and guards.

 

7. Clarence Brandenburg

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“Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel,” Clarence Brandenburg said. The film showed twelve hooded figures, some of whom carried firearms. They gathered around a large wooden cross, which they burned. The members of the group could be heard saying, “This is what we are going to do to the niggers,” “Save America,” “Bury the niggers,” “Freedom for the whites.”

In the late 1960s, Brandenburg was a Ku Klux Klan leader in Cincinnati. He had telephoned a local television station and invited a reporter to come to a Klan rally at a farm in Hamilton County. The reporter, accompanied by a cameraperson, attended the rally and filmed it. During the rally Brandenburg made a speech, in which he said, “We’re not a revengent [sic] organization, but if our president, our congress, our Supreme Court continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.”

Brandenburg was prosecuted under an Ohio criminal syndicalism law of the same vintage as the “red flag” law used to prosecute Yetta Stromberg in California, one of the batch of similar World War I–era laws passed by states out of fear of Bolshevism. The Ohio law made it a felony to “advocate ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg was convicted, fined, and sentenced to one to ten years in prison.

 

8. Larry Flynt

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Larry Flynt is no James Madison.

A typical issue of Hustler magazine contains well over 100 of what Flynt calls “pink shots,” close-up pictures of models’ vaginas, sometimes pried open with fingers. That does not make Flynt a First Amendment hero.

Flynt has been prosecuted in various states for publishing “obscene” material. But he has avoided being sent to prison, as the convictions have been overturned on appeal. That does not make him a First Amendment hero.

Every month, Hustler publishes an “Asshole of the Month” column, crudely excoriating a politician or other public figure. Several of Flynt’s targets have sued him for libel and other wrongs. He has won every suit. That does not make him a First Amendment hero.

On one of his trips to the Supreme Court, when he thought the argument his lawyer made had gone badly, he shouted at the justices: “You’re nothing but eight assholes and a token cunt!” Chief Justice Burger ordered him arrested. He has been held in contempt of court on several other occasions, once for wearing an American flag diaper to court. None of this makes him a First Amendment hero.

 

9. Clinton Fein and the ACLU

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Clinton Fein felt betrayed. He thought he had been promised freedom of expression. Instead he got the Communications Decency Act.

Born in South Africa, Fein grew up under Apartheid. As he graduated from the University of Witwatersrand, he was interested in journalism. But the South Africa of the time was not a promising environment for young journalists. Under the repressive censorship regime, one could be imprisoned for quoting Nelson Mandela, who was then in prison for revolutionary activities. Fein emigrated to the United States, studied for citizenship, learned all about the Constitution, and was naturalized in 1994. When he took the oath, he was bemused by the seeming contradiction in having to swear to God to defend a constitution that prohibited any religious coercion. But his primary allegiance, and hope, lay with the First Amendment’s free-speech clause. Then Congress enacted, and President Bill Clinton signed, the Communications Decency Act of 1996. As a result, because his speech was online and subject to the Act, Fein would have had freer speech in South Africa, which by that time was post-Apartheid, than he had in the United States. Fein’s sense of betrayal propelled him to the federal courthouse.

 

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