Martin Garbus: Citizens United is the most serious threat today to free speech, and “there are two First Amendments”

By Jonathan Peters
This is the tenth in a series of interviews I’m conducting with lawyers and scholars who’ve made a mark on freedom of expression.  Follow me @jonathanwpeters on Twitter.

Martin Garbus is a trial lawyer and First Amendment expert who has appeared multiple times before the U.S. Supreme Court and in trial and appellate courts around the country. His clients have ranged from Nelson Mandela to Al Pacino to Daniel Ellsberg to Cesar Chavez to Don Imus. Garbus served as legal director of the American Civil Liberties Union, co-director of the Columbia University Center on Social Policy, and chairman of the Lawyers Constitutional Defense Committee. He has taught trial practice at Yale Law School and constitutional law at Columbia Law School. Garbus is the author of six books and numerous articles that have appeared in the New York Times, theWashington Post, and the Los Angeles Times, among others. He was the subject of the 2009 HBO documentary “Shouting Fire: Stories from the Edge of Free Speech.”

What’s the most serious threat today to free speech?

First, the Citizens United decision. Money can totally subvert democracy. It puts an enormous amount of power in the hands of the wealthy. Second, a judiciary insensitive to First Amendment concerns.

With respect to campaign finance, how do you feel about the idea of disclosure? The idea that we should know from where the money came?

It’s a profoundly important issue. The way that 501(c)(4) organizations operate is a major problem. Either the donors or the entities themselves should be required to disclose. The source of the funds is important. It’s an important part of evaluating the message. Justice Kennedy’s opinion in Citizens United, which says that money does not have a corrupting effect on elections, is either naïve or an attempt to use naïve language to obscure an agenda.

What would Justice Kennedy be obscuring or covering up?

It’s just inconceivable to me that anyone would believe what Kennedy said: that there’s no proof that money can corrupt the political system. It seems obvious to me, and it seems obvious to many others.

You said a second threat to free speech is a judiciary insensitive to First Amendment concerns. Could you elaborate?

By and large, the Supreme Court has shown sensitivity to First Amendment interests in a variety of cases. But in certain cases, the Supreme Court – and the lower courts – has failed to appreciate First Amendment interests. Consider the church-state area, in the context of what you’re allowed to say in abortion clinics and how doctors counsel their patients about the availability of abortion procedures and contraceptives. That area hasn’t enjoyed great First Amendment support.

The people you’ve interviewed before me have been academics or lawyers at large law firms that deal with high-level problems. If you deal with problems at a lower level, at the ground level where your clients are ordinary people, it can be more difficult to generate support for First Amendment interests. Instead of standing in a New York County courtroom discussing the elements of libel, you’re in Alabama or Mississippi or California, at the front lines of a hot social dispute.

Really, there are two First Amendments. There’s the one you invoke to protect ordinary people—I’m thinking here of the Civil Rights struggles, the Cesar Chavez struggles—and there’s the one you invoke to protect a large corporation. There are very different First Amendment constituencies depending on the nature of the case.

It’s been reported that your decision to sue the Daily News for libel on behalf of a rape victim cost you your membership in a guild of First Amendment lawyers and your association with the law firm you founded. Can you talk with me about that? What happened?

The fact that I represented a rape victim against the Daily News did cause me to lose my membership in a group that in large part was the insurance entity for libel cases. I was run out of that group for representing that woman. Basically, the Daily News had published articles saying the woman was a fake and fraud. The paper likened her claims to those of another woman in a different case where the claims turned out to be false. I filed on behalf of the first woman, and as a result, I lost my membership. I was kicked out.

What you have in the First Amendment bar, as you have in other places, are political divisions. Certain lawyers felt it was politically inappropriate—and inappropriate with respect to the First Amendment—for me to represent the woman. Which I thought was preposterous. There was an article in the New Yorkerabout what happened, and one of the other media lawyers likened me to a government lawyer who prosecutes narcotics cases and then goes on to defend narcotics users. I thought the bar’s behavior was awful and immoral.

You used the phrase “inappropriate with respect to the First Amendment” — that certain media lawyers believed it was inappropriate for you to handle the woman’s case. Is there such a thing as an inappropriate First Amendment case?

This practice should be agnostic, but in reality it’s not. And, no, I don’t think there’s any such thing as an inappropriate First Amendment case. I’ve represented Nazis, I’ve represented racists, and so on, but those cases didn’t affect the First Amendment bar in the same way. In the Daily News case, money was a factor. The bar was quick to criticize me, and many of the critics were the very people who gained from my representing that woman. In other words, I was unavailable at the time to defend other libel cases, so the critics picked up those clients. They had a financial interest in going after me and in getting me kicked out of their group.

A few years ago, New York magazine wrote that you’ve “had a hand in what feels like every important First Amendment case in the past 50 years,” representing Daniel Ellsberg, Lenny Bruce, Cesar Chavez, Nelson Mandela, and many others. Which case holds the most significance to you?

It’s hard to say that anything is more significant than the Ellsberg case. After all, Herbert Brownell, the attorney for the New York Times, had told the editors that the paper should not publish the Pentagon Papers. To play some role in getting them published was important to me. During the Vietnam War, people lined up against the war, and there was a huge division within the First Amendment bar about what was permissible and what was not. Many people were offended that the New York Times would publish the Pentagon Papers. Brownell, in counseling the Times not to publish, represented a large cross-section of society.

Meanwhile, the Lenny Bruce case didn’t seem as remarkable at the time: It wasn’t well known, the courtroom was empty most days, and by the time the case wrapped up, Bruce was performing in small venues—small rooms and auditoriums. The number of people who rallied to Bruce’s defense was modest. But since then the case has had an extraordinary echo. It’s been a legal and cultural thread in all manner of cases that have attempted to draw the line between what you can say and what you can’t say. Those questions very much remain with us today.

Let’s circle back to Ellsberg and the general issue of government leaks. President Obama has prosecuted more government leakers than all other administrations combined. Yet he promised when he took office to have the most transparent administration in history. What do you make of that? Are those things mutually exclusive?

No, they’re not mutually exclusive. But the reason he’s prosecuting leakers is political expedience. He’s dealing with discomfiting leaks in the same way he has dealt with Guantanamo. Which is to say, he’s doing something politically expedient that’s awful. I’m a supporter of President Obama, and apparently in these cases he feels the need to make political decisions. But they’re wrong.

You wrote in 2009 that “Obama has become radical in his commitment to secrecy, not totally unlike the Bush administration.” Today, three years later, is that statement any less true?

No, it’s still true.

You were court-martialed in the Army because of your speech, you were jailed in Mississippi and California because you defended protesters, you faced bar disciplinary proceedings because you wrote essays criticizing South African judges, and you were detained in Russia because you attempted to deliver a letter from a Russian dissident to President Carter. To what extent have those very personal experiences shaped your views on the First Amendment?

Having been a defendant in the dock, it makes you more aware of what it means in real life to be a defendant. I’ve seen lawyers advocate First Amendment interests in ways that divorce them from the interests of their clients. The lawyers simply don’t understand the passion that many of their clients feel about their causes. So the lawyers separate themselves from their clients. Part of the reason, I suspect, is to curry favor with the court by rising above the client’s supposed intemperateness. But too often the effect is to make the clients appear as if they’re outside the veil. I’m not saying, of course, that if you represent a Nazi or racist that you need to identify with that client, but you can maintain your separateness and not denigrate the client.

You’ve been a neutral observer of trials in foreign jurisdictions, and you’ve worked as a consultant on constitutional law with leaders of the former Soviet Union, Czechoslovakia, Poland, China, and Rwanda. You’ve said that those experiences frustrated you – that some of your efforts were fruitless – but you’ve also said that small acts can have big consequences. What did you mean by that?

I was in Chile shortly after the coup, in January 1974, and I went to a trial put on by the Pinochet government. It was a trial of generals, and I was the one outsider who attended. One of the generals on trial was Alberto Bachelet, who had opposed the 1973 coup that Pinochet led. I was treated as part of the defense team, so I had the chance to speak with Bachelet. He knew the trial would have only one result and that he wouldn’t get out of prison alive. He asked me at various times to deliver messages to his wife and daughter – which I did – and he was tortured in prison until he died in 1974.

Many years later, I met Bachelet’s daughter, Michelle, who had become the president of Chile. She told me that when I had attended her father’s trial, coming out each day to report on what had happened, and relaying his messages to her, she had seen that Pinochet’s grip on Chile could be shaken. She knew I had been relentless to get access to the trial, and she said it showed her that one person could make a difference—that my standing up in a small way could mean a great deal. I was quite humbled.

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