Martin Garbus: Not a First Amendment absolutist

Wednesday, December 16, 1998

Martin Garbus...
Martin Garbus

NEW YORK — First Amendment lawyer Martin Garbus says he does not waver
in his commitment to freedom of speech and press, but he also says he is not
a First Amendment absolutist because when dealing with the First Amendment,
“you are forced not to be an ideologue.”

Situations involving free speech have to be looked at individually and
balanced against other values, Garbus said yesterday at a Newseum/NY Author
Series to discuss his book, Tough Talk: How I Fought for Writers, Comics,
Bigots and the American Way.

“When you talk about a society which has both more openness and more
tawdriness and a greater right of the public to know — and at times
we’ve seen some irresponsibility — the question is how do you balance
these values? For me it’s very difficult,” Garbus said. “Rather than
speaking about an absolute commitment to free speech, it’s an absolute
commitment to a reasoned dialogue.”

Garbus has been on the front lines in the battle to preserve the First
Amendment over the last 30 years and is considered one of America’s leading
First Amendment attorneys. His clients have included Lenny Bruce, Samuel
Beckett and Vaclav Havel.

However, he has also gone against the First Amendment grain at times, in his
colleagues’ view, such as when he prosecuted a libel case against New York
Daily News reporter Mike McAlary. Garbus represented a black lesbian,
“Jane Doe,” who claimed she had been raped in Brooklyn’s Prospect Park.
McAlary had called her a liar in three of his columns; Garbus found her
credible. He lost the case, and “Jane Doe” decided against an appeal.

Garbus discussed a range of topics where First Amendment values come into
play. The rise in popularity of the Internet, for instance, has created new
free-speech issues, he said. Hate speech, obscenity and pornography have
become greater concerns now that the Internet allows for quick and
widespread dissemination.

But Garbus does not support regulation. “It’s basically two concepts:
government regulation and private regulation,” he said. “Private regulation
would be awful, and the American history is that private regulation,
government regulation doesn’t work. It’s always devastating to have any kind
of regulation.”

Other issues Garbus addressed in his talk:

  • Cross-burning: Like flag-burning, cross-burning should be protected, he
    said. “Symbolic speech should be protected. [It] is difficult for many to
    accept because of the power of it, but symbolic speech is a very powerful
    part of the democratic process, and it’s necessary.”
  • Speech codes: Speech codes on college campuses, though they vary
    greatly, become part of the whole “PC debate,” said Garbus, who generally
    does not support them. He refused to condemn the political-correctness
    movement across the board, though: “That kind of simplicity is
  • Salman Rushdie’s The Satanic Verses: Garbus represented
    publisher Penguin Viking and tried to persuade major bookstore chains to
    carry the controversial novel. The stores were receiving bomb threats and
    Garbus had a difficult challenge: “When someone signs on to (work at) Barnes
    & Noble, their pay doesn’t include battle pay; it’s a battle they never
    signed on for. But I don’t think there are many publishers (today) who would
    say (as Penguin Viking did in agreeing to publish the book), ‘This is
    important to me, this is what I’m prepared to do.’”
  • The Cincinnati Enquirer/Chiquita incident in which a reporter
    illegally obtained information by intercepting voice mails from Chiquita
    Brands International: “You have questions about reponsibility … I don’t
    understand why the journalist took it on the chin that way. What he did was
    wrong, [but] he had a story which was totally truthful. The paper pays a
    small fortune and then kicks out the reporter. There’s a great deal to that
    story that I just don’t know, [but] what I do know about it doesn’t make