New book brings free-speech stories alive
First Amendment law encompasses far more than principles, tests and concepts. It arises from real people in real circumstances, from the turbulence of history and culture of particular times and places.
This jurisprudence arose out of a rich and varied history filled with trials and tribulations, peaks and valleys, heroes and rogues. Authors Ronald K.L. Collins and Sam Chaltain (full disclosure: we’re former colleagues) explain and explore many fascinating free-speech stories in their excellent narrative — We Must Not Be Afraid To Be Free (Oxford University Press, 2011).
The writers — both of whom have devoted much of their professional careers to First Amendment work — expertly intersperse the facts of crucial U.S. Supreme Court cases with character sketches of litigants, judges and attorneys, along with the cultural and historical contexts from which the cases emerged.
Readers will learn about Benjamin Gitlow, the losing anarchist litigant in Gitlow v. New York (1925), in which the U.S. Supreme Court first extended the protections of the free-speech clause to the states. They will appreciate the incredible Supreme Court litigation career of Judge Robert L. Carter, who successfully argued numerous First Amendment case on behalf of the NAACP.
But First Amendment case law doesn’t originate with the Supreme Court. It starts in trial courts. Collins and Chaltain respect this reality and offer interesting insights into federal district judges Murray Gurfein, Harold Medina and Walter Burgwyn Jones, whose rulings eventually culminated in the seminal Supreme Court decisions New York Times Co. v. United States (1971), Dennis v. United States (1951) and New York Times Co. v. Sullivan (1964).
Another powerful chapter focuses on Elmer Gertz, the famed Chicago-based civil-liberties lawyer who became a defamation plaintiff after he was besmirched by a publication of the founder of the John Birch Society. That litigation led to changes in defamation law in the Supreme Court decision Gertz v. Welch (1974). In another chapter filled with poignant passages, the authors discuss the cross-burning in the yard of African-American couple Russell and Laura Jones in St. Paul, Minn., that led to national discussions on hate speech and the Supreme Court decision in R.A.V. v. City of St. Paul (1992).
The authors also manage to explain the development of different areas of free-speech law in an accessible manner. They weave an intricate tapestry of free-speech stories around the judicial career of U.S. Supreme Court Justice Hugo Black, a former member of the Ku Klux Klan and U.S. senator from Alabama who later became one of the ardent defenders of the First Amendment until the massive war and civil-rights protests of the 1960s seemed to cause fear in the aging jurist.
“Quite apart from the soundness of his First Amendment jurisprudence, one cannot dismiss his impact on both the law and culture of free speech in America,” Collins and Chaltain write.
The authors take their title from the last line of Black’s dissent in the lawyer bar-admission case of In Re Anastaplo (1961): “We must not be afraid to be free.”
Readers should not be afraid of the more than 300 pages of this excellent narrative — more than 400 when you include a First Amendment timeline, informative endnotes and an index. Those who take the journey will be glad that they embarked. They will encounter the fascinating life history and culture of the First Amendment and the historical context in which free-speech principles evolved.