Rodney A. Smolla

Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate by Rodney A Smolla is a thought provoking and emotional read.

When I say an "emotional read" I don't mean that it is written emotionally but rather that a reader, probably regardless of where they stand on the political spectrum, will experience a range of emotion. Anger, sadness, frustration, and even helplessness at times. But this is a good thing, it means we have to think about why we feel as we do and what we actually believe is right to do in a pragmatic way without betraying our ideals. Praxis rarely if ever caters 100% to ideals, no matter what those ideals are, so we have to work out a way to retain as much of our ideals while creating a solution that works for, if not all, then at least the vast majority of people. And without leaving entire groups of people outside of the solution, we don't need more scapegoats to make us feel like we are making progress.

This book reviews both the events in Charlottesville as well as the history leading to it and the aftermath so far. In addition to this it also is a debate about what free speech, in the US, actually is and what it might become. Smolla does not leave himself and his history as a free speech lawyer out of the line of critique.

Smolla still falls into the marketplace theory of free speech and he makes a case for it very well. He also critiques the order and morality theory fairly and even, in a way, acknowledges that in some cases it would appear to provide better outcomes. As much as I am resistant to even the name marketplace I have to say he has convinced me that, if these are the two options, it is the way to go. The single biggest reason, what he calls the Achilles heel of the order and morality theory, centers on the issue of who decides and then enforces such a theory in practice. It would have to be the government and whoever at a given moment controls the government. That would always have been a worrisome problem but in the age of Trump dismantling anything that resembles rule of law, trying to consolidate power in not only the executive branch but in his own tiny little hands, and in the violent nature of his most vocal supporters, this does indeed become a major reason to adhere to the marketplace theory.

Whether you agree with my opinion above, either about the theories or about the current regime, that should not keep you from reading this book. Smolla explains the theories far better than I just paraphrased my understanding of them and, whichever side you argue, the facts here will lead to a better informed debate and, hopefully, some agreement. Even when we put a new or improved policy or system in place we need to always already be critiquing it. No policy or system is perfect and there will be flaws and places for improvement. It seems to me that the marketplace theory incorporates this element into itself while the order and morality theory would have us disrupt the entire system every time we needed to make any change at all.

Reviewed from a copy made available by the publisher via NetGalley.… (altro)

John Stuart Mill wrote in On Liberty: “An opinion that corn dealers are starvers of the poor, or that private property is robbery ought to be unmolested when simply circulated in the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of the corn dealer.” So what about a book that encourages and incites people to become hitmen.

Rodney Smolla, who has written several interesting books related to the Supreme Court, was faced with a dilemma. As a strong advocate of the First Amendment, he was being asked to help sue a publisher for publishing a book. That the book had a nefarious history made it more problematic. In 1983 Paladin Press had published a book on how to become a professional hit man and the book provided a recipe of instructions on just how to do it. James Perry followed those instructions after being hired by Lawrence Horn to kill his crippled child and ex-wife. The question was whether the publisher had any liability for the actions of the thug.

Trevor was extremely disabled thanks to a mistake at the hospital where a machine he was on was accidentally knocked loose causing brain damage and a host of other problems. The hospital was successfully sued for the millions estimated to provide long-term care.

Smolla uses discussions (most likely invented) from his First Amendment class to bring the issues into focus: natural rights, Hobbes v Locke, etc. The question at the bottom of the suit was expressed well by Judge Bork who asked whether “freedom of speech is something inside or outside the social contract.” Freedom of speech derives from the social contract, so, in Bork’s view, freedom of speech cannot include the right to advocate overthrowing the social contract. Does freedom of speech permit one to encourage “people to be vigilantes, to go outside the formal governmental justice system and commit individual acts of ‘justice’ for revenge or retribution.” That was the legal question facing the publisher and his opponents.

The case bore similarities to the Hustler case and Jerry Falwell (see my review of Jerry Falwell v Larry Flynt, also by Smolla at https://www.goodreads.com/book/show/218410.Jerry_Falwell_v_Larry_Flynt) Just how far does the First Amendment take us in protecting the truly distastful. (Personally, I found the parody Compari ad in Hustler to be hysterical and clever, but certainly distasteful.) The Brandenburg v Ohio case was also cited. Brandenburg was a Ku Klux Klan leader who was arrested under an Ohio syndicalism law that prohibited incitement to violence. Brandenburg was convicted but his conviction was overturned by the Supreme Court as a violation of his free speech rights. A more recent case coming after the book was written that might have applied would be Snyder v Phelps in which Phelps’ Westboro Baptist Church was engaged in picketing the funerals of dead soldiers as a protest against gay rights policies.

Generally, the courts have always held that copycat behavior or emulation of a violent scene in a movie did not leave the creator or producer of the scene at risk of being held responsible for the actions that resulted from watching the depiction. The rationale behind those decisions was that the programs did not encourage such behavior. So what about a book that did?

The case of United States v Progressive might be pertinent except for the classified nature of the material in question. Progressive magazine was enjoined from publishing an article on how to build a hydrogen bomb. They had used only publicly available information. The case itself was interesting in that there were two: one in public and the other in camera, the latter one which the defendants could not attend since they refused security clearances. Their lawyers were but they were forbidden to reveal what went on in the closed session to their clients. Ultimately the suit was withdrawn by the DOE because other “secret” information had been published elsewhere and the Progressive republished their article. The issue of intent remained crucial since in the case of the Progressive and the imitative violence cases the intent of the authors was certainly not to be imitated.

The strategy of the publisher’s legal team was to stipulate that the content of the book was clearly to instruct how to kill people for profit, but both teams also agreed to stipulate that the book was available to others who might have an interest in learning about these techniques such as authors, police, etc. So rather than have a jury trial first, in an unusual move, Smolla had to argue the First Amendment issues first, rather than wait and argue them on appeal, an appeal that would have occurred no matter which side won the jury trial.

The book didn’t start off well for me. I found the insertions of class discussions irritating at first, but since the issue was fascinating, I persevered and it really took hold. Smolla does a good job of integrating the memoir of his own “come to Jesus” moment with that of Howard Spiegel and why they decided to take the case. I won’t reveal the outcome of the case, but my personal take on the case is that Smolla was on the wrong side.… (altro)

In 1983 Hustler magazine printed a parody of a Campari advertisement. The real ad was based on the slogan, "You'll never forget your first time." Flynt's parody showed Jerry Falwell in a reflective pose being interviewed about his first time and included such lines as, "I never really expected to make it with Mom, but then after she showed all the other guys in town such a good time. . . ." The pseudo-interview continued in similar bad taste. Falwell, understandably, and having no sense of humor, was incensed when one of his staff showed him the Hustler advertisement (it's unclear if this was regular reading material for the staff or not.)In any case, Falwell decided to sue (and not coincidentally use the incident as the foundation for a major fund-raising campaign.) Flynt, one of America's more repugnant byproducts, rested his case basically on the premise, "Can't you take a joke, Jerry?"

Smolla, a professor of Constitutional Law at the College of William and Mary, has written a fascinating account of the case, which raised all sorts of fundamental freedom of speech and freedom of religion issues. The book is delightfully entertaining, while presenting a clear and concise accounting of the case and some background on the evangelical movement with biographical sketches of the main players.

The Supreme Court decided, in a unanimous decision that Flynt, had every right to make a fool out of Jerry Falwell (and himself.)

The best comment I read about the case came from a book by Lewis Grizzard [b:Don't Bend Over in the Garden, Granny, You Know Them Taters Got Eyes|573504|Don't Bend Over in the Garden, Granny, You Know Them Taters Got Eyes|Lewis Grizzard|http://photo.goodreads.com/books/1175908057s/573504.jpg|1363301]. It's too good not to quote:

"Who do yo pull for in something like that. It's like picking a favorite between cancer or heart attack, fat or ugly, Iraq or Iran.
It took me about three seconds to decide who I was for: Flynt.
Her's why: Give the book burners one little victory like Falwell over Flynt and those people can get red-eyed with determination to see everything but the Bible, Reader's Digest and Guns and Ammo flushed down the toilet. You've seen people like that. They have beady little eyes, the men wear Bermuda shorts and eat a lot of prunes and the women have mustaches and dowager's humps. They tend to speak partially through their noses.
They not only want to censor books and magazines, they would do away with anything that is fun, such as doing it with the lights on and drinking in the daytime.
These people have no sense of humor, keep plastic over their living room furniture, like Bob Barker, send money to television evangelists, buy velvet paintings of Jesus and/or bullfighters from people selling along the edge of the road, don;t like dogs, are pale, are still wearing polyester and haven't had a decent bowel movement in twenty years.
S.J. Perelman referred to such individuals as 'damp people.' I could add to that by saying they are the mushrooms of the human race.
Let them have a say in what we can read or watch or do and pretty soon, the rest of us will be just as bored as they are."… (altro)