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8. Larry Flynt

Turner, William Berrett-Koehler Publishers ePub

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.

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2. Jehovah's Witnesses

Turner, William Berrett-Koehler Publishers ePub

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.

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9. Clinton Fein and the ACLU

Turner, William Berrett-Koehler Publishers ePub

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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1. Yetta Stromberg

Turner, William Berrett-Koehler Publishers ePub

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.

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6. Richard Hongisto

Turner, William Berrett-Koehler Publishers ePub

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.

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