BOOKS-ON-LAW/From the Editors - June 1999; v.2, no.6

JURIST: Books-on-Law is edited by Ronald K.L. Collins and David Skover of the Seattle University School of Law

Editorial Consultants:

This Month: We return to another Past-Perfect review -- this one with Alan Dershowitz reviewing Alexander Bickel’s The Morality of Consent (Yale University Press, 1975).  The review originally appeared in 1975 in the New York Times Book Review.

In our regular reviews, Mary-Christine Sungaila opens with her thoughts on a new (and yet another controversial) book on feminism.  Then, Michael Fischl examines Pierre Schlag’s latest book on jurisprudence.  Moving into constitutional law and constitutional history, Susan Herman discusses a new tract on the history and law of double jeopardy. Howard Ball follows with his review of a new biography of Justice Clarence Thomas, with a reply by the author Scott Gerber.   Next, a just-published book on international environmental law is critiqued by Stephen Kass, followed by a reply from the author, Paul Kibel.  Finally, James O’Fallon offers some observations on Mark Tushnet’s latest work on constitutional law.  As always, you have the final word, so talkback.

The First Amendment is the coin of his practice.  He makes it his business to be where the First Amendment action is: from opposing anti-paparazzi legislation to defending tabloids against punitive libel verdicts, from challenging semi-secret Senate impeachment proceedings to defending online providers against defamation actions, just to list a few areas of his expertise.  He is the general counsel to the Society of Professional Journalists and has represented a wide variety of clients: politicians, celebrities, authors, reporters, and free speech troublemakers.

The American Journalism Review billed him as one of the most accomplished press lawyers in the nation; the National Law Journal listed him among the 100 most influential lawyers in America; and The Washingtonian described him as a lawyer "without peer" in First Amendment law.

He is Bruce W. Sanford, a partner with the Washington office of Baker & Hostetler.   He is the author of the forthcoming book, Don’t Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us (Free Press, 1999).

Ten years in the making, the forthcoming book "grew out of my jury research in libel cases," Sanford told Books-on-Law.  "In the late 1980s, I noticed that we were entering a different era, one in which the public became increasingly critical of the press." he added

The irony is something befitting a Platonic riddle.  There is, on the one hand, a national craving for more information; on the other hand, there is an increased hatred toward those who provide such information. In other words, people love the message but hate the messenger.

Based on revealing anecdotes and research on media dynamics and public opinion, Mr. Sanford’s forthcoming book discusses and critiques the free speech implications of the public’s ever less sympathetic attitudes toward the Fourth Estate.  This "backlash" against the media, we are told, has prompted some papers to kill truthful stories rather than face litigation; has invited judges to make greater use of legal devices to defeat free speech claims; and has made possible libel awards inconsistent with Madisonian values.  The "public hostility toward the media has come to roost in our courts," Sanford told us.  "There has been a steady drumbeat of press defeats."

But the rascals are not so much those who provide the public with what it demands; no, "the public is a villain."  More than that, adds Sanford: "In many ways the public has contributed to the deterioration of the press."  Mr. Sanford’s book explores what this means as a matter of First Amendment law and how it may affect our media culture.

Don’t Shoot the Messenger will be available in August.  Among other works, Mr. Sanford is also the author of Libel and Privacy (Aspen, 1998) and First Amendment and Libel: The Experts Look at Print, Broadcast, and Cable (1997) (with R. John Cooper).

Fighting a War & Fighting for Free Speech

One problem with most books on free speech is that they focus, almost exclusively, on the work of courts, typically the Supreme Court.  It is as if no other branch of government mattered in these matters; and forget the culture of free speech, whatever that is.  All that counts is what Justice Holmes said or what Justice O’Connor should have said.  A half-loaf will suffice.

Gladly, some few authors buck the trend.  One such writer is Richard W. Steele who authored the just-published Free Speech in the Good War: Defining an American Ideal, 1939-1945 (St. Martin's Press, 1999).  "The focus of my book is on free speech and the Justice Department," Steele told Books-on-Law.

The Steele story is one of free speech in the era of World War II; it is the story of how the Executive Branch declared war on the "un-American" messages of Communists, Christians, Black nationalists, anti-war activists, and others.  It is the story, too, of "erstwhile civil libertarians" who (contrary to their Holmesian values) opted for a more "realistic" definition of free speech.

Professor Steele, an emeritus professor of American history at San Diego State University, tells his story largely by examining what three of President Franklin Roosevelt's Attorneys-General -- Frank Murphy (1939-1940), Robert H. Jackson (1940-1941), and Francis Biddle (1941-1945) -- did to please their President and aid the War effort while attempting to hold true to their First Amendment convictions.   As Steele points out, all-too-often the former prevailed at the expense of the latter.

Free Speech in the Good War is based on research gleaned from Department of Justice and Attorney-General records of the time.  Says Steele, it took years of FOIA requests to obtain the information.  The book discusses how FDR prompted his Justice Department lawyers to use the Espionage Act of 1917 and the Smith Act of 1940 to prosecute radicals opposed to the War.  The resulting story is complicated, and reveals the ambivalence some had in executing the President’s orders.  For example, after the Pearl Harbor bombing a number of dissidents were arrested, only to be ordered free by Francis Biddle . . . only to be later prosecuted by Attorney General Biddle.

Free Speech in the Good War is also the story of how the War affected the free speech values of liberals.  "Many civil libertarians," Steele told us, "abandoned their absolutist or near-absolutist views on free speech.  When fascism became a factor, there was a demand for a more realist approach," an approach far less accommodating to the First Amendment.  Some liberals -- such as David Riesman, Archibald MacLeish, and Lewis Mumford -- maintained that "free speech should not be extended to anti-democratic forces," said Steele.  Other liberals, such as Roger Baldwin (the founder of the ACLU) disagreed and held to more absolutist view.  What resulted was a division in the liberal community; and it is a division that makes for one of the great debates in the history of the First Amendment.

Professor Richard Steele’s other books include Propaganda in an Open Society (Greenwood Press, 1985) and The First Offensive 1942: Roosevelt, Marshall and the Making of American Strategy (Indiana University Press, 1973).

First Amendment Hits

Coming this July: Crown Press will soon release Rodney Smolla's latest work on the First Amendment: Deliberate Intent: The Behind-The-Scenes Story of the Infamous Hit Man Case (Crown, 1999).

The book comes on the heels of the recent settlement of the case involving a lawsuit by the family of a murder victim against Paladin Press for publishing Hit Man: A Technical Manual for Independent Contractors, a work ordered and read by the convicted murderer.

Forthcoming: The next issue of Books-on-Law will be published in September, after our Summer recess.

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law