Book Reviews

Clarence Darrow: Attor- forged through a hard-fought and gritty early ney for the Damned career filled with both successful trials and By John A. Farrell devastating errors. Doubleday, New York, NY, 2011. 561 pages, $32.50 (cloth), $17.95 (paper). Act I The first act of Darrow’s career saw him Reviewed by Nicholas J. Patterson become a successful lawyer, pursue a career in politics, and get involved in radical causes. In Clarence Darrow: Attorney for the Darrow attended Allegheny College and Damned, John A. Farrell paints a brilliant the University of Michigan Law School, but portrait of the famous lawyer’s life. Going graduated from neither and claimed to have beyond the popular image of Darrow shaped taken the bar examination in a tavern. He by Spencer Tracy’s 1960 portrayal of a rum- began his legal career in Ohio, but it took pled, free-thinking trial lawyer in “Inherit the off in 1887, when, at age 30, he moved to Wind”—a fictionalized account of Darrow’s Chicago with his first wife and their young defense of John T. Scopes for teaching evo- son. Initially unsuccessful as a solo practitio- lution—Farrell reveals a highly intelligent, ner, Darrow’s fortunes soon improved due, compassionate, yet deeply flawed and difficult in large part, to his cultivation of John Peter man. A preeminent litigator and a fervent Altgeld as a mentor. Altgeld was a rich local defender of the underdog, Darrow was also judge on the rise in Illinois politics. After federal proceedings arising from a boycott not above stooping to unscrupulous means Altgeld helped a new mayor get elected, organized by the union that halted freight to win cases. He was, according to Farrell, Darrow joined the city legal staff and was and passenger travel across the country. willing to “employ any trick to save a client,” soon in charge of all the city’s legal affairs. Farrell also reveals a side of Darrow that and he was twice tried for bribing jurors. In 1892, he worked on Altgeld’s successful has been obscured by his later success as a Darrow’s personal life was no less complicat- gubernatorial campaign and Altgeld subse- litigator—his heavy involvement in Chicago ed. Although long married to his second wife, quently helped Darrow get a position in the and Illinois politics. In addition to having a Darrow was “a notorious rake,” according to law offices of the Chicago & North Western close relationship with Governor Altgeldt Farrell—“a professed sensualist who took Railway Company. and other politicians, Darrow unsuccess- much pleasure from the chase, seduction, and Darrow adopted Altgeld’s combination of fully ran for Congress, blaming his loss, act of love.” passion and calculation. Admiringly, Darrow in part, on being tied to William Jennings Farrell, a journalist and author of Tip said that Altgeld was “absolutely honest in Bryan’s unsuccessful presidential campaign. O’Neill and the Democratic Century, skill- his ends and equally as unscrupulous in the This experience stoked a longstanding dis- fully draws on numerous primary sources, means he used to attain them. He would do like of Bryan, his future opposing counsel including only recently available correspon- whatever would serve his purpose when he in the Scopes trial. Darrow was, however, dence, to seamlessly weave the legal, politi- was right. He’d use all the tools of the other elected to the Illinois state legislature. He cal, and social events and movements of side—stop at nothing.” resisted a movement to elect him mayor of Darrow’s time into a rich tapestry that ren- By 1893, at age 36, Darrow had a success- Chicago, in part because he did not want to ders the fullness of Darrow’s life. ful career working for the railroad company, give up his political independence. Although Farrell identifies the “great theme” of but he decided to take an unconventional Farrell briefly touches on the effect Darrow’s Darrow’s life as the “defense of individual path. Eschewing a stable, lucrative corporate political experience had on his courtroom liberty from modernity’s relentless, crush- career, he started a private practice focusing manner, it would not seem a stretch to think ing, impersonal forces.” He traces Darrow’s on criminal and labor law. that his two decades of political experience evolution in what may be viewed as three In his first major criminal case, Darrow helped teach him how to connect with and acts: Darrow’s beginning as a young Chicago defended Patrick Prendergast, an insane handle jurors, witnesses, opposing counsel, lawyer and politician on the make, his bare newspaper deliveryman, who had killed and judges. knuckle litigation as a leading labor lawyer Chicago Mayor Carter Harrison. Although Farrell also shows how Darrow’s combi- that ended with him on the ropes in grief and Darrow’s defense was unsuccessful and nation of intellectual curiosity and an empa- disgrace, and his resurrection as an immense- Prendergast was executed, Darrow went on thetic personality led him to explore many ly successful libertarian defense attorney and to successfully defend numerous others peo- progressive and radical political and social household name. Although Farrell makes ple facing capital punishment. Darrow also movements. His innate skepticism, contrari- all three acts compelling, the first two are began his transformation into a leading labor anism, and desire for independence, how- particularly so because they show that the lawyer by defending Eugene V. Debs, the ever, led him to remain a lone wolf, generally qualities that made Darrow memorable were leader of the American Railway Union, in two neither fully embracing nor being embraced

Jan/Feb 2014 • The Federal Lawyer • 81 by these movements’ adherents. ing of the Los Angeles Times that left 21 rupting the juror because he had already One movement, however, that Darrow people dead, was less successful, both for begun to negotiate the McNamara plea. consistently supported was “the free love his clients and himself. Farrell explains that The second trial did not go as well, movement, which called for relationships the Times was targeted because it “had been although Darrow got off. Difficulties arose based on sexual and emotional compatibil- leading the Los Angeles business community because this time Franklin had bribed the ity, not repressive statutes.” After attaining in a fierce, violent struggle against labor that juror before the plea negotiations had begun, financial success, Darrow divorced his first summer.” Samuel Gompers, head of the and because Rogers was “in awful shape, pale wife, led an active bachelor life, married American Federation of Labor, hired Darrow and shaking in court” from his alcoholism, his second wife, and philandered for much to defend James McNamara, an unemployed forcing Darrow to take the laboring oar in his of the rest of his life. According to Farrell, printer accused of planting the bomb, and own defense. Darrow severely hurt his own Darrow “was often lonely, haunted by death, his brother John McNamara, the treasurer of cause in his closing argument by defending and prey to melancholy.” One of his lovers an iron workers union, accused of helping to the McNamaras: “I want to say to this jury, said that he relied on “physical nearness” orchestrate the bombing. even if it costs me my liberty, that the plac- to escape the “emptiness” and the “spiritual Farrell reports that Darrow made a pain- ing of dynamite in the Times alley was not isolation” of his life. ful decision to seek a plea deal after he deter- a ‘crime of the century.’ It was not even a mined that the case for James McNamara crime.” Instead, Darrow argued, the respon- Act II was hopeless. Darrow was in a difficult posi- sibility was that of the “paralyzing hand of The second act of Darrow’s life was his tion because the prosecution would not likely wealth which has reached out and destroyed involvement from 1906 to 1913 in two sets of strike a deal for James unless John also all the opportunities of the poor.” highly publicized trials of union men charged pleaded guilty, and a confession by John, Farrell makes little editorial comment with “wide-scale, bloody campaigns of ter- as an important labor figure, would humili- about this very troubling statement, stating ror.” Darrow became nationally famous for ate the unions and end Darrow’s career as a only that Darrow was attempting to make this defense work, but went through the labor lawyer. But Darrow felt that he had to amends with the unions; throughout the most difficult time of his life, including being seek a deal because, even though the unions book, Farrell allows readers to draw their prosecuted for bribing jurors. were paying him, his job was to save the own conclusions. The jury deadlocked with The first set of trials centered on the McNamaras’ lives. eight of the 12 jurors pushing for a guilty prosecution of the Western Federation of Circumstances soon became immeasurably verdict, in part because Darrow’s closing Miners President Charles Moyer, Secretary- more difficult for Darrow when, in the midst of statement convinced them that his radical Treasurer William “Big Bill” Haywood, and an plea bargaining, Bert Franklin, Darrow’s top philosophy could have led to his engaging explosives expert named George Pettibone, jury investigator, was arrested on a street cor- in bribery, and the judge declared a mistrial. for their alleged involvement in a conspiracy ner in the act of bribing a juror—“as Darrow Farrell believes that Darrow “[a]lmost to, among other things, kill former Idaho stood there, watching it go down.” Darrow assuredly” participated in the bribery Governor Frank Steunenberg. denied any role in the bribery and pushed scheme, either directly or indirectly. Farrell Farrell explains that the bloody conflict forward with the plea negotiations. The state weighs Darrow’s correspondence with his between capital and labor in industrial-age agreed to accept James McNamara’s plea and family, in which he did not assert his inno- America reached its apex in the west and ask the judge for clemency, if John pleaded cence, as well as the statements of colleagues that miners there were the “spearhead of guilty to the lesser charge of ordering a differ- and friends of Darrow who believed he was resistance to the new order.” Both sides ent bombing. involved. Interestingly, in almost a throw- employed violent means in this conflict, Farrell asserts that a factor in the state’s away line that Farrell uses in his description and both prosecutors and defense lawyers acceptance of a plea bargain was that politi- of the first trial but not in his later discussion used hard-ball tactics, including the abduc- cal and business operatives associated with of whether Darrow bribed the McNamara tion in Colorado of the three defendants by the prosecution saw guilty pleas as a way jurors, Farrell mentions that, after his acquit- Pinkerton detectives for trial in Idaho, the to derail the candidacy of Job Harriman, tal in the first trial, Darrow had his son pay a alleged paying of a “staggering bribe” to a a candidate for mayor of Los Angeles who juror who had been a thorn in the prosecu- witness by the defense, and the acceptance was closely tied to the unions. On election tion’s side “$4,500—some $55,000 in today’s of donations from mining companies by the day, James McNamara was sentenced to life currency—or more.” state to subsidize the prosecution. Darrow imprisonment, John McNamara was sen- ultimately secured acquittals for Haywood tenced to 15 years, and Harriman lost the Act III and Pettibone, and the state dropped the mayoral race. In the third act, Farrell shows how the charges against Moyer. Darrow’s success Soon after the plea agreement was two-year ordeal of his bribery trials made derived in part from exposing the unreliability reached, Darrow was indicted on two counts Darrow a better lawyer and a more compas- of the state’s primary witness, Steunenberg’s of bribery, which were tried separately. sionate person. “Darrow was fifty-five when killer, whom Darrow described as an “inhu- Darrow hired Earl Rogers, an attorney for the second trial ended, broke and disgraced. man monster, a murderer, bigamist, perjurer, an anti-union lobby, to represent him. In the But for the rest of his life he would make gambler, thief and incendiary.” first trial, even though Rogers had “prepped amends, score his greatest triumphs, and die Darrow’s second set of trials, which for the [case] by going on a bender,” he an American hero.” As Darrow explained, stemmed from his defense of two brothers mounted a showy and successful defense, that “sad, hard experience made me kindlier accused of participating in the 1910 bomb- arguing that Darrow had no motive for cor- and more understanding and less critical.”

82 • The Federal Lawyer • Jan/Feb 2014 Having suffered, he tried to ease the suffer- defendant and his “pain and position,” they Conclusion ing of others. will act “to satisfy themselves,” and the case Although the term “definitive biography” Farrell also shows Darrow’s empathy is won. Juries will furnish their own rational- has become shopworn through overuse, it and support for a wide range of individuals ization. “If a man wants to do something, and aptly applies to Clarence Darrow: Attorney against whom “the good people” of soci- he is intelligent, he can give a reason for it,” for the Damned. Farrell has crafted an ety were prejudiced. For example, Darrow said Darrow. “You’ve got to get him to want intelligent, insightful, and entertaining por- defended black men accused of raping white to do it. ... That is how the mind acts.” trait of a difficult man of whom, to quote women and killing white men, saved the life Darrow also appealed to the intellect of Shakespeare, we “shall not look upon his like of a young psychiatric patient who killed a his audience. Farrell explains that Darrow again.” (Hamlet, Act I, Scene 2).  woman because he wanted money to buy “had the audacity to treat judges and juries a bicycle, and defended a chronic petty to original sermons on an intellectual plane Nicholas J. Patterson is an attorney in criminal whom the Chicago police arrested far higher than the usual courtroom wran- Washington, D.C. on what they called “general principles.” But gling, and to do so in a captivating way. Darrow was not adverse to helping wealthier People listened to his reasoning, despite its clients; he saved the architect Frank Lloyd strangeness, its theory, its difficult demand Iron Curtain: The Crushing Wright from prosecution for violating the for mercy.” of Eastern Europe, 1944- Mann Act, which was the federal law that On a more visceral plane, Darrow mixed 1956 made it a crime for unmarried couples to empathy with cunning. For example, he By Anne Applebaum travel across state lines. dressed and acted in ways that endeared Doubleday, New York, NY, 2012. 566 pages, $35.00 Darrow also threw himself into high pro- himself to juries. As Chicago newsman and (cloth), $17.95 (paper). file and seemingly hopeless cases—and won. author Ben Hecht, whom Darrow defended By 1925, he had bested William Jennings from censors, explained, Darrow “artfully” Reviewed by George W. Gowen Bryan in the Scopes trial, had saved the dressed in “baggy pants, frayed linen, and lives of the teenage thrill killers Richard string tie, and ‘play[ed] dumb’ for a jury as if For many Americans, the Soviet Loeb and Nathan Leopold (chillingly win- he were no lawyer at all, but a cracker-barrel Union’s crushing of Poland, East Germany, ning Leopold’s appreciation as a fellow philosopher groping for a bit of human truth.” Czechoslovakia, Austria, Hungary, Rumania, Nietzschean “Superman”), and had won Darrow explained that he never addressed Bulgaria, and Yugoslavia is irrelevant— trials involving corrupt Chicago politicos. juries. He talked to them. ancient history made more so by the subse- From these victories, Darrow “emerged as an Darrow employed similar finesse in cross- quent collapse of the Soviet Union and our American archetype: the legal sorcerer who examining witnesses. A contemporary jour- present fixation on totalitarian regimes in the won hopeless cases.” nalist noted that Darrow had “a capacity for Middle East. But our concern with today’s Farrell also shows the uglier sides of getting inside the skin of a witness. ... He totalitarian regimes actually adds relevance Darrow’s efforts, including his rough treat- never strikes an attitude. He never explodes. to Anne Applebaum’s review of the Soviet ment of Bryan on the stand in the Scopes He stands before a witness and just bores takeover of the Iron Curtain countries. trial and his defense of gangsters. When into his mind, gently, shrewdly with every Applebaum’s Gulag won the 2004 Pulitzer asked how he could represent such repro- appearance of wanting merely to know just Prize for General Non-Fiction, and now her bates, Darrow responded, “for the money, the truth and nothing more. ... He knows how retelling in Iron Curtain of the story of and because I hated jails and the good to browbeat, too. ... [H]e adapts his method to Eastern Europe from 1944 to 1956 is a rebut- people.” Farrell slyly notes that despite this the man and seldom makes a mistake.” tal of the revisionist historians “who argued jaunty rejoinder, Darrow did not include this On a more devious note, Darrow was that the Cold War had been caused not by chapter of his life in his memoirs. guided by the dictum that the jury needs a communist expansion but by the American villain. He would undermine his opposing drive for open international markets ... [and] Litigation Tactics counsel, alienate him from the jury, and that the division of Germany was caused not Farrell’s book is shot through with insights deflect juror animus from his own client by by the Soviet pursuit of totalitarian policies into Darrow’s litigation methods. Some of selecting a “goat” on the other side—often in Eastern Germany after 1945 but by the these methods, such as bribing jurors, are an attorney or opposition witness—a “foe Western powers’ failure to take advantage of inarguably unethical, and others, such as clos- Darrow chose for needling and vilification.” Stalin’s peaceful overtures.” She adds, “Any ing arguments lasting days, have become out- Finally, Darrow cultivated a close rela- close examination of what was happening on dated. Some of his tactics, however, remain tionship with the press that helped him the ground across the region between 1944 instructive for modern litigation. influence potential and actual jurors. Darrow and 1947 reveals the deep flaws of these These tactics ranged from the sublime used this skill and, later, his celebrity, to arguments—and, thanks to the availability of to the visceral. On the sublime end of the shape public opinion, “knowing that jurors Soviet as well as Eastern European archives, spectrum, Darrow could seduce a jury, both reflect communities” and that cases are not a close examination is now possible.” Having emotionally and intellectually. A great story- won in the courtroom alone. In the opening made these comments in her introduction, teller, Darrow explained that he would “try weeks of one trial, Darrow went so far as to Applebaum then proceeds, in exhausting to throw around the case a feeling of pity, of write daily stories on the case for the New detail, to examine what was happening on love, if possible, for the fellow who is on trial.” York Times. the ground. If the jurors can be made to identify with the The phrase “iron curtain” traces to

Jan/Feb 2014 • The Federal Lawyer • 83 Winston Churchill’s 1946 speech at that the sacrifices of the Soviet Union in to the even greater difficulties that nations Westminster College in Fulton, Mo., where World War II far exceeded those of France, devoid of any traditions of a liberal society, he was introduced by President Harry England, and the United States combined. such as Egypt and Libya, may experience Truman and said: “From Stettin in the Baltic At conferences in Teheran in 1943 and after breaking their chains of bondage.  to Trieste in the Adriatic, an iron curtain has Yalta in 1945, Roosevelt, Churchill, and Stalin descended across the Continent. Behind that “decided the fate of whole swathes of Europe George W. Gowen is a partner with the New line lie all of the capitals of the ancient states with amazing insouciance.” These three lead- York law firm of Dunnington, Bartholow & of Central and Eastern Europe. Warsaw, ers agreed to spheres of influence, especially Miller LLP. His areas of practice are trusts Berlin, Prague, Vienna, Budapest, Belgrade, as to Poland, that often paralleled the 1939 and estate, corporate law, and not-for- Bucharest and Sofia. ...” pact between Stalin and Hitler. Although the profits. He was an adjunct professor at the Applebaum divides her time, the jacket Soviets promised free elections, the future New York University Graduate School of cover tells us, between Britain and Poland, of the Iron Curtain nations was determined Business and has served on United Nations where her husband, Radoslaw Sikorski, is the largely by Soviet military force, as it occupied Commissions, as counsel to leading sports Polish minister of foreign affairs. The sub- Warsaw, Berlin, Vienna, Budapest, Belgrade, organizations, and as chair of environ- ject of the Soviet Union’s oppression of the Bucharest, and Sofia. mental and humane organizations. Eastern Europe nations deserves a book such Early in her book, Applebaum describes as hers, but, despite the fact that she focuses the totalitarian state as one with “one politi- on East Germany, Hungary, and Poland, the cal party, one educational system, one artis- Friend of the Court: On breadth of her coverage can make the details tic creed, one centrally planned economy, the Front Lines with the difficult to digest at times. Such breadth was one unified media, and one moral code. In a First Amendment intended to demonstrate how each totalitar- totalitarian state there are no independent By Floyd Abrams ian regime operated similarly. Each received schools, no private businesses, no grassroots Yale University Press, New Haven, CT, 2013. 471 pages, direction from Moscow and maintained con- organizations, and no critical thought.” Nazi $32.50. trol with police-enforced political loyalty, Germany, the Soviet Union, and the Iron acts of violence, control of radio and newspa- Curtain countries are swept up by this defi- Nuanced Absolutism: pers, indoctrination of youth, ethnic cleans- nition, and I wonder which of today’s nations Floyd Abrams and the ing, and, overall, an emphasis on the state might be too: Syria, Iran, Cuba, North Korea, First Amendment over the individual. Zimbabwe, and to varying degrees China, By Ronald K. L. Collins Russia’s expansionist dreams trace to the Vietnam, as well as others? Carolina Academic Press, Durham, NC, 2013. 240 pag- czars and their historic longing for a warm- Applebaum quotes Alexis de Tocqueville’s es, $27.00. water port. But it was Stalin who made these enthusiasm for “associations” that “Americans dreams realities beyond the wildest hopes of all ages, all conditions, and all dispositions Reviewed by Louis Fisher of the czars. On Aug. 23, 1939, the Soviet constantly form. ... If men are to remain Union and Nazi Germany signed a Treaty civilized or to become so, the art of asso- Floyd Abrams has built a remarkable of Non-Aggression (the Molotov-Ribbentrop ciating together must grow and improve.” career in litigating First Amendment issues. Pact) that contained a secret protocol divid- She contrasts America’s encouragement of His involvement at the trial and appellate lev- ing Eastern Europe into spheres of influ- associations to totalitarian states’ bans on els includes the Pentagon Papers case in 1971 ence. On Sept. 1, Germany invaded western independent associations, trade unions, and (New York Times Co. v. United States), a Poland. On Sept. 17, the Soviets invaded guilds of all kinds. 1978 case involving a newspaper that reported eastern Poland and simultaneously occupied Although Iron Curtain stops at 1956, it on a state judicial fitness panel (Landmark Lithuania, Estonia, and Latvia, whose exis- offers a brief commentary on what happens Communications v. Virginia), a dispute tence as separate nations would be prevent- after a totalitarian regime collapses: “As a the following year about a newspaper story ed by the Soviets for the next half century. result of this civilizational damage [caused by concerning a student brought before a juvenile In the spring of 1940, the Soviets conducted a totalitarian regime], post-communist coun- court (Smith v. Daily Mail Publishing Co.), a mass execution in the Katyn Forest of more tries required far more than the bare insti- a libel action by singer Wayne Newton against than 21,000 Polish prisoners. Although most tutions of ‘democracy’—elections, political NBC, a libel action initiated by a resident of of the victims were captured army officers, campaigns, and political parties—to become Istanbul against Newsday, and many other others were doctors, lawyers, and professors. functioning liberal societies again. They cases Abrams described in his excellent book, On June 22, 1941, in Operation also had to create or re-create independent Speaking Freely (2005). Barbarossa, the largest military operation media, private enterprise and a legal system This earlier book provides helpful back- in history, in terms of both manpower and to support it, an educational system free of ground in evaluating Abrams’ Friend of the casualties, Germany invaded Russia. Four propaganda, and a civil service where promo- Court, in large part because the new work million Axis troops, along with 600,000 motor tions are given for talent, not for ideological consists essentially of articles, speeches, vehicles and 750,000 horses, invaded, caus- correctness.” interviews, and testimony, without an effort ing Russian civilian and military casualties in Although Applebaum writes solely of the to identify and closely analyze their prin- the millions. Germany’s inability to capture difficulties that the Iron Curtain countries cipal themes. With such a large amount of Stalingrad and Leningrad led to its ultimate experienced after throwing off the yoke of reprinted material, written or spoken from defeat in 1945. Stalin justifiably claimed oppression, she implicitly provides lessons as 1978 to 2012, there are bound to be some

84 • The Federal Lawyer • Jan/Feb 2014 inconsistencies, and the reader may not about the First Amendment impelled me know which position Abrams takes today. I to defend such speech” and that for liber- will focus largely on the controversial deci- als to “abandon their historic defense of it sion issued by the Supreme Court in Citizens seemed to me a desecration.” Sen. Mitch United v. Federal Election Commission McConnell called to ask if he would be one (2010), which ruled that corporations have of two lawyers (the other being Kenneth a First Amendment right to spend unlim- Starr) to challenge the McCain-Feingold stat- ited amounts in political campaigns. Abrams ute (the Bipartisan Campaign Reform Act). devotes considerable space to defending this Abrams agreed to do so. In McConnell v. decision. Federal Election Commission (2003), the Toward the end of Speaking Freely, Supreme Court upheld the main elements Abrams discussed his work in the field of of McCain-Feingold. To Abrams, the Court campaign finance reform. He recognized had rewritten Buckley to be “totally speech- that “there was obviously a problem with destructive.” large corporations and unions giving millions Friend of the Court consists of 10 chap- of dollars to political parties,” leaving the ters. Each chapter begins with a page or impression “that favored treatment might page-and-a-half preface outlining a gener- follow.” He asked whether government could al theme, followed by reprints of Abrams’ ban all corporate and union contributions. articles, speeches, congressional testimony, He wonders if he has “devoted an inordi- It was his position that parties engaged in book reviews, letters to the editor, excerpts nate amount of time to publicly defending political campaigns “had First Amendment from affidavits, and interviews. There is no Citizens United.” rights, too” and suggested ways of dealing concluding chapter to express Abrams’ con- To Abrams, Citizens United emphasized with the problem of unlimited corporate and temporary views. The titles of the chapters that “[p]olitical speech ... receives the high- union spending. One proposal: more strin- reflect the breadth of his activity on First est protection under the First Amendment.” gent reporting standards to require immedi- Amendment issues: “The Vice of Censorship,” Does that include not only political speech by ate Internet disclosure of every contribution “The United States and the World,” “The natural persons but also political speech by a party received. Second: placing caps on the First Amendment and National Security,” corporations? That is the issue that Abrams amount of corporate or union contributions. “Presidents vs. the First Amendment,” defends as he devotes chapter 8 to Citizens Third: increasing public funding of cam- “On Libel and Privacy,” “Copyright Woes,” United. He argues that the Court’s decision paigns to make it easier for less well-funded “Confidential Sources,” “Citizens United,” “is rooted in the First Amendment.” Certainly candidates to run. “Assessing the Press,” and “Reflections.” The individuals are protected by that amend- In Speaking Freely, Abrams turned for last chapter may appear to constitute a ment. Why does it also protect artificial per- support to Mills v. Alabama (1966). A unan- concluding chapter, but it merely consists of sons, including corporations? Abrams refers imous Supreme Court held that a newspaper seven documents dated, in order, 1988, 1993, to Justice Kennedy’s opinion for the Court in could not be punished for publishing on elec- 2000, three from 1997, and 2009. Citizens United, saying that Kennedy cited tion day an editorial urging adoption of the In a 15-page introduction, Abrams “twenty-five cases” (actually 23) giving cor- mayor-council form of government. State law explains that his book “is not one of legal porations “full First Amendment protection.” prohibited electioneering or soliciting votes scholarship.” He says, understandably, that As Abrams notes, many of them “involved on election day for or against any proposition the First Amendment “is too important” powerful newspapers owned by large cor- or candidate. The Court considered the law to be left solely to scholars. A subhead porations; others involved nonpress entities a flagrant violation of the First Amendment. promises three propositions. The first: “the such as a bank, a real estate company, and a This decision, however, protected media First Amendment is not left or right, lib- public utility company.” corporations that had clear protection under eral or conservative.” Abrams never iden- Here is Kennedy’s language: “The Court the Press Clause of the First Amendment. It tifies the second and third propositions, has recognized that First Amendment pro- had nothing to do with the right of non-media but makes a number of other observations, tection extends to corporations.” Most of the corporations to spend unlimited amounts in such as “the central concern of the First cases he cites involved media corporations political campaigns. Amendment is the danger of government protected by the Press Clause of the First Why do non-media corporations have control over what is thought and what is Amendment. This constitutional safeguard First Amendment rights? In Speaking said.” Moreover: “It is commonplace to say protects not merely newspapers but the Freely, Abrams refers to Buckley v. Valeo that the First Amendment is not absolute. need of citizens to be informed. The cases (1976), which he describes as “one of the That is true—perjury remains a crime in he cited involved, among others, Time, Inc., most controversial rulings of the twentieth America and libel law still exists—but it is Southeastern Promotions, Ltd. (involved in century.” The Supreme Court concluded not true to the extent or with the impact theatrical productions), Cox Broadcasting that Congress could limit the amount of that many believe.” Abrams refers to the Corp., Miami Herald Publishing Co., New York financial contributions to candidates but Supreme Court’s decision in Citizens United Times Co., Kingsley International Pictures lacked authority to limit expenditures by as “what may well be the most maligned First Corp., Turner Broadcasting System, Denver donors to promote their political objectives. Amendment ruling protecting freedom of Area Educational Telecommunications Abrams decided that “everything I knew expression in the Supreme Court’s history.” Consortium, Simon & Schuster, Sable

Jan/Feb 2014 • The Federal Lawyer • 85 “depiction of animal cruelty” as any visual broad terms may imply that corporations are or auditory depiction, including any photo- entitled to broad First Amendment rights. graph, motion-picture film, video recording, Additional insights into Abrams’ con- electronic image, or sound recording of con- stitutional positions come from Nuanced duct “in which a living animal is intentionally Absolutism: Floyd Abrams and the First maimed, mutilated, tortured, or killed.” Amendment, by Ronald K. L. Collins, whose Legislative debate focused primarily six previous books explore a number of on criminalizing “crush videos” portraying First Amendment issues. Collins serves as women in high heels stepping on small ani- a fellow at the First Amendment Center at mals. However, the bill was poorly drawn the Newseum in Washington, D.C., and he and could have led to prosecution of those is the Harold S. Shefelman Scholar at the who publish hunting and fishing maga- University of Washington School of Law. zines. Instead of vetoing the bill and asking Nuanced Absolutism advances an inter- Congress to avoid overbreadth, President est that Collins has long pursued: studying Clinton signed the bill and directed the not just judge-made law but the contribution Justice Department to prosecute only those of lawyers who help shape legal doctrines, who market crush videos. The George W. particularly on constitutional issues. As Bush administration decided to prosecute Collins explains: “Law is not only what law- Communications of California, The Florida someone involved with dogfighting videos. makers create and judges interpret, it is also Star, Philadelphia Newspapers, Landmark In Stevens, the Supreme Court properly what lawyers do with it.” To Collins, “the cult Communications, American Mini Theatres, found the statute to be overbroad and invalid of the judge dominates much legal thinking, Robert Welch, Inc. (which ran a month- under the First Amendment. After the deci- especially in the world of legal education.” ly magazine), and Greenbelt Cooperative sion, Congress rewrote the statute to focus Given the prominence of Floyd Abrams on Publishing Association, Inc. exclusively on crush videos. If someone were First Amendment law, he is a natural choice. In Friend of the Court, Abrams acknowl- prosecuted for creating or distributing such In pushing back against the prevailing edges the difference between media and videos, the constitutionality of that action Court-centric orientation, Collins looks at non-media corporations. He refers to Justice might be litigated, but crush videos were the “clear and present danger” test sup- Stevens’ dissent in Citizens United that not at issue in Stevens. The Court expressly posedly created by Justice Oliver Wendell McCain-Feingold “contained a media exemp- stated that it did “not decide whether a stat- Holmes. A judicial discovery? Not quite. tion.” Congress knew that media corpora- ute limited to crush videos or other depic- Collins explains that lawyer Benjamin W. tions required protection under the First tions of extreme animal cruelty would be Shaw coined the phrase before Holmes made Amendment. Stevens added: “The conceit constitutional.” it famous. Perhaps we might consider charg- that corporations must be treated identically In a debate with Burt Neuborne in es of plagiarism against justices who pretend to natural persons in the political sphere is 2011, Abrams said that some individuals to create out of whole cloth majestic phrases not only inaccurate but also inadequate to will defend “distributors of videos of ani- they borrow without attribution. justify the Court’s disposition of this case.” He mals being tortured or killed.” Stevens did In the prologue to Nuanced Absolutism, remarked that the framers, unlike the major- not decide that issue. When interviewed by Collins develops his principal thesis: “By ity in Citizens United, “had little trouble dis- Richard Heffner in 2012, Abrams spoke about juxtaposing jurisprudence with biography, tinguishing corporations from human beings, the support that exists for “people who film we are reminded of how much the former and when they constitutionalized the right to the torture of animals.” In an article for the is dependent on the latter. For law does not free speech in the First Amendment, it was Yale Law Journal Online, Abrams claimed come to life in the abstract, free of the mark the free speech of individual Americans that that Stevens supported the “appalling” right of mortal minds.” Collins then highlights a they had in mind.” to sell crush videos. While debating Alan central issue in the work Abrams has done It is surprising that someone of Abrams’ Morrison at Albany Law School in 2012, in First Amendment law. As Collins notes, sophistication would repeatedly misrepre- Abrams stated: “We don’t permit statutes Abrams “has devoted much of his career sent the Supreme Court’s free speech deci- to make criminal the creation of films that to defending everything from the right of sion in United States v. Stevens (2010). He depict the intentional torture and killing of newspapers to publish sensitive materials states that the Court “held unconstitutional helpless, small animals; cats and dogs, by concerning national security to the right of under the First Amendment a federal statute women wearing high-heeled shoes who slow- for-profit corporations to contribute colossal that criminalized the commercial creation, ly crush the animals to death.” This allusion amounts of money to political campaigns.” sale and possession of disturbing graphic to Stevens misleadingly failed to note that, The jump here is substantial: from The New depictions of the torturing and killing cer- after Stevens, Congress rewrote the statute York Times publishing the Pentagon Papers tain animals.” Legislation in 1999 provided to make the creation or distribution of such (supported by the Free Press Clause of the criminal penalties for whomever “knowingly videos a crime. These mistaken references First Amendment) to such for-profit corpora- creates, sells, or possesses a depiction of ani- to Stevens may serve a purpose. If Abrams tions as Coca Cola, Exxon, General Electric, mal cruelty with the intention of placing that can convince an audience that the First and Philip Morris. The constitutional need depiction in interstate or foreign commerce Amendment protects crush videos (it does to protect media corporations is plain. Much for commercial gain.” The statute defines not), then understanding free speech in such less clear is a constitutional requirement

86 • The Federal Lawyer • Jan/Feb 2014 to grant all corporations First Amendment As for Citizens United, Collins notes don’t go after speech which is not deceptive rights to spend unlimited amounts in political that Justice Kennedy, writing for the major- and not fraudulent by its nature just because campaigns. ity, “couched his words in nearly absolutist it comes from corporations.” But the record Collins provides interesting background terms” by observing that political speech is clear that tobacco companies for years on Abrams. Born in the Bronx on July 9, “must prevail against laws that would sup- withheld from the public facts about demon- 1936, he attended public school and served press it, whether by design or inadvertence.” strable health hazards of smoking. They as president of the Forest Hills youth branch As the title of Collins’ book makes clear, never informed smokers of what smoking of the Liberal Party, a third-party group in Abrams is not an absolutist. He recognizes would do to their health. New York. He applied to Cornell University limits to the First Amendment, including Collins offers some principal values that when he was 15 and entered just as he defamation, obscenity, child pornography, guide constitutional government. One is that turned 16. Abrams studied constitutional and copyright claims. Still, in a letter to “what is ultimately at stake here is the right law under Professor Robert E. Cushman, the New York Times on Jan. 17, 2012, of the people to self-rule in a democratic soci- a political scientist who wrote widely on Abrams explained: “The reason I became ety.” That principle cannot allow all corpora- constitutional law and civil liberties. Justice involved in the Citizens United case ... was tions free rein to spend as much as they like Ruth Bader Ginsburg, who attended Cornell because I thought it was contrary to the First under the theory that the First Amendment a few years before Abrams, was a student Amendment at its deepest and most impor- applies equally to them as it does to natural and research assistant for Cushman. After tant level to limit political speech. ... And so individuals. Collins suggests: “Some might graduating from Cornell, Abrams studied to be told, well, because it’s a corporation argue that such a commitment to democratic law at Yale Law School, and there worked they shouldn’t get protection and they can government is undermined by Mr. Abrams’s under professors Alexander Bickel, Thomas ... have that speech criminalized simply isn’t support of Citizens United.” In that sense, Emerson (a First Amendment scholar), and the First Amendment that I think we have.” Collins highlights the central value of the U.S. Fred Rodell. The argument is strong for First Amendment Constitution. It is not the First Amendment, Following Yale, Abrams served for a brief protection for media corporations. It is far interpreted in an absolutist or nuanced abso- time as a research associate to Alpheus weaker for all other corporations. lutist manner. It is the capacity of the nation- T. Mason, a political scientist and consti- Collins underscores this point when he al government to remain accountable to the tutionalist who taught at Princeton. He refers to Abrams’ efforts to come to “the public, and to assure the citzenry that public accepted a two-year clerkship with a federal defense of the free speech principle in con- policy has not been transferred to wealthy district judge, Paul C. Leahy of the district troversial cases such as those involving cor- corporate powers.  of Delaware, and then joined the law firm porate election contributions or advertis- of Cahill Gordon & Reindel, where he has ing by tobacco companies.” In those cases, Louis Fisher is scholar in residence at remained ever since. Over the years, Abrams Collins says, “it is all too easy to paint a First the Constitution Project. From 1970-2010, served as visiting lecturer at Yale Law School Amendment lawyer with a scornful relativist he served at the Library of Congress as a and Columbia Law School. For 15 years, he brush.” Abrams’ work for the Greensboro, senior specialist in separation of powers taught First Amendment law at the Columbia N.C.-based Lorillard company involved a rule with the Congressional Research Service Graduate School of Journalism. by the Food and Drug Administration requir- and specialist in constitutional law with In national security cases, such as ing tobacco companies to display nine new the Law Library. He is the author of more Schenck, Debs, and Abrams, decided by textual warnings, including graphic images than 20 books, including The Law of the the Supreme Court after World War I, Floyd of diseased lungs and a cadaver bearing chest Executive Branch: Presidential Power, to be Abrams found the rulings against antiwar staples on an autopsy table on every cigarette published by Oxford University Press in plaintiffs to be based on unacceptable consti- package manufactured and distributed in the January 2014. His personal web page can tutional doctrines. It is difficult, he said, “not United States. be found at loufisher.org. to be stunned by the pathetic inadequacy To Abrams, the “real issue is whether the of any proof of any threat of any sort by the government can require an entity that makes speech in question that we would recognize a lawful product to emblazon on its package a today as constituting anything near to an message which screams out not to buy it.” He emergency—or, indeed that could properly conceded that government “has the power be said to meet any First Amendment test at to require warnings, which it has done for all.” To Abrams, another “instructive exam- many years,” such as the Surgeon General’s ple of the perils of unsubstantiated fears of warning on cigarette packages that smoking danger” is the Pentagon Papers case, where is dangerous to your health. Subsequent the executive branch warned that publica- warnings were more specific: smoking causes tion of the top-secret documents would lead lung cancer, heart disease, emphysema, and to great harm and even deaths. Yet, 10 years may complicate pregnancy. Does Abrams after publication, Abrams contacted every find First Amendment violations with those government witness who testified about the warnings? dangers and not one could cite a single pub- Apparently, he does. He argues: “If you lished passage that compromised national want to ban cigarettes, ban them. If you want security. to punish people for fraud, punish them. But

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