Ten questions on free speech with David Goldberger, the First Amendment lawyer who won Skokie, McIntyre and other SCOTUS cases

By Jonathan Peters
This is the eighth in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment.  Follow me @jonathanwpeters on Twitter.

David Goldberger is a professor emeritus of law at The Ohio State University. He began his career as a staff attorney for the Legal Assistance Foundation of Chicago, and later he served as legal and legislative director of the Illinois Division of the American Civil Liberties Union. In 1977, Goldberger won his first case before the Supreme Court: National Socialist Party of America v. Village of Skokie. It obligated state courts to provide expeditious review of injunctions against public assemblies. He argued the case McIntyre v. Ohio Elections Commission before the Supreme Court in 1995. It invalidated a state statute prohibiting the distribution of anonymous, non-libelous campaign literature. That same year, Goldberger was co-counsel in the Supreme Court case Capital Square Review and Advisory Board v. Pinette, which vindicated the right of the Ku Klux Klan to place an unattended cross on the Ohio statehouse plaza. Goldberger returned to the Supreme Court in 2005 to argue Cutter v. Wilkinson. It upheld a federal statute protecting the right of prison inmates to freedom of religion. Goldberger’s writing focuses on free speech, and he serves on the Panel on Peaceful Assemblies for the Organization for Security and Cooperation in Europe-Office of Democratic Institutions and Human Rights.

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

The threat of terrorism is a blunt tool being used to justify all sorts of restrictions on speech. Of course, there is a real threat. But the question is whether the threat and the response are proportionate. If we acknowledge, for example, that the threat of domestic terrorism is real but of uncertain imminence and gravity, then does it make sense to allow the government to engage in broad surveillance that includes reviewing library records secretly to determine who’s checking out what? I don’t think that’s proportionate or tailored to the requirements of actual cases.

Instead, we find ourselves in the midst of mindless attacks on loyal State Department employees who happen to be Muslim, efforts to block construction of a mosque because it’s a block or two from ground zero, and legislative bans against state courts from considering Sharia law. And, more to the point, we have the Supreme Court approving an anti-terrorism law that is so broad it criminalizes providing assistance to a group by helping it contact the UN because the Secretary of State has the group on her terrorist organizations list.

There needs to be stronger leadership in order to get us out of the mindset of fear. In some respects, today’s situation is reminiscent of the run-up to the internment of Japanese-Americans during World War II. We were so reflexively afraid back then of their subverting the country from within that our leaders used internment camps as a kind of ethnic cleansing. We had a failure of national leadership then, and in that respect—playing on fear—we have a failure of leadership today, too. As a result, panicky and narrow-minded politicians are more than willing exploit that failure and fear to restrict speech and other basic freedoms.

Occupy Wall Street. Police reaction to the protests was mixed, this year and last year. At some locations, we saw major clashes between the police and protestors, and at other locations we saw few—if any—clashes. What’s your take? And to what extent, generally, does the First Amendment protect what the OWS protestors have been doing?

Traditionally, the time, place and manner doctrine does not preclude officials from limiting the use of a forum so the forum is not monopolized for a long period of time. It is well established that reasonable regulations of assemblies in a public place are okay. The hard part is that the OWS movement – the impact of its message – has depended in part on the movement’s persistent presence at particular sites. Without the continuing presence at the Wall Street location, I don’t think we ever would have heard of OWS. It became not only a national movement but a global one.

There is no case law clearly protecting extended stays, but there is no case law, either, saying that the government has the clear right to kick them out if, by doing so, their message will be lost. The only Supreme Court case in this area – well, sort of in this area – is Clark v. Community for Creative Nonviolence, which is worrisome. It involved overnight demonstrations at Lafayette Park, where protestors were staying the night to support the rights and needs of the homeless. The Supreme Court upheld the prohibition against sleeping in the park, and that case grants government officials a great deal of discretion.

I’ve never been comfortable with the outcome of that case, and I suppose there are ways it might be distinguished from most, if not all, of the OWS cases. Lafayette Park, for example, is near the White House. That would give the government a greater interest in securing that park overnight. But if cases like Clark are used to suppress OWS-type demonstrations that rely on longevity to make a point, important viewpoints will be omitted from public debate.

Do you think the OWS protests have been peaceful?

I think there’s no doubt they’ve been peaceful. The fact that comparatively few were arrested during the height of the OWS assemblies was an indication of their peacefulness and perhaps the power of the First Amendment. For the most part, clashes between protestors and police occurred when police moved in to shut down the assemblies and clear the protest site. I have a feeling that even though the protestors have not been violent, government officials just don’t like them. The protestors rock the boat; they make things uncomfortable for local officials. But that’s the whole point.

What does it mean for a protest to be peaceful? Does it mean no violence? Very little violence?

It means no violence. At most of the OWS protests, the unlawful activities that drew the most attention were peripheral to the assemblies. From the point of view of the local officials, the protest becomes an attractive nuisance for unlawful activities—drug use or public intoxication, for example. Someone was killed at one of the protests, too. But the person who committed the killing was mentally ill, and his conduct was abberational. So is that a peaceful protest? I would say so, yes. Much of the complaining was that the demonstrators were unsanitary, that the streets were blocked, that there was a health hazard, and so forth. None of that, though, equates to violence or non-peacefulness. But any one of those problems could be the basis for reasonable time, place and manner restrictions.

Is protesting alive and well today?

Three or four years ago, I felt that street demonstrations were becoming historic relics. They were not en vogue. And that’s obviously no longer the case. Back then, things were warming up in Europe as a result the collapse of the Soviet empire, but not here. We had some demonstrations at the national political conventions, and we had a few big ones related to immigration reform. But they all were atypical. You just didn’t hear often about assemblies, let alone major ones. That has changed and shifted so much in recent years that people like me, who have expertise in the law of public assemblies, are back in business.

Shifting gears a bit, you’ve said for a long time that it’s important for the bar to support lawyers who represent unpopular clients. You’re a lawyer who’s done that, who’s represented a number of infamous people, including Frank Collin, the former leader of the National Socialist Party of America. Is that type of bar support still a problem today?

It’s not as much of a problem, but periodically you see high-profile cases that make you worry. The bar goes quiet. Cases involving terrorists or accused terrorists would be an example. I worry that the lawyers representing defendants accused of terrorism will take heat if they are too successful and that the bar will stand silent.

What are the costs? What’s the effect of bar hostility or indifference?

It encourages lawyers not to take important cases simply because the client is unpopular. I once attended a CLE run by a prominent ethics professor, who said there was no need to be concerned about members of the general bar undertaking representation of unpopular clients. He said there were lots of lawyers who were happy to do it. And I thought to myself, “There is a guy who has never represented a truly unpopular client.”

In the Skokie case, with a few exceptions, lawyers in private practice wanted nothing to do with the case. The bar was silent or hostile. In general, the private firms are going to be reluctant to support lawyers in lightning-rod cases. The firm’s other clients wouldn’t like it, and some members of the firm wouldn’t like it, either. A small number of lawyers quietly stepped up to work with me, but they were careful to remain off the legal papers so they wouldn’t draw attention to their firms.

Consistent bar support is absolutely necessary.

You argued the case McIntyre v. Ohio Elections Commission at the U.S. Supreme Court. It held that the First Amendment protects the freedom to publish anonymously, extending “beyond the literary realm to the advocacy of political causes.” Is that a sound principle in the digital era, in a society where anonymous speech on the Internet can cause so much harm?

It depends on what kind of speech we’re talking about. To the extent we’re talking about political speech involving people who would be deterred from speaking if they couldn’t do so anonymously, then McIntyreremains a very helpful decision. It does not protect anonymous personal attacks that are genuinely libelous. Under such circumstances, the right to speak anonymity should give way to the victim’s right to use the rules of discovery to learn the identity of his or her attacker. I’m also distinguishing this right to anonymous political speech, of course, from anonymous political donations. I don’t think donations, notwithstanding the Supreme Court’s view, are the same thing as political speech in the form of anonymous leafleting or political advocacy.

How do you strike the balance between protecting the right to speak anonymously and protecting victims of libelous personal attacks? What are some of the criteria?

You have to remember that people who speak anonymously, many of them, are afraid to suffer the consequences of their speech, whatever they might be. And that interest is vindicated by McIntyre. On the other side is the problem of false statements. If the speaker is anonymous, then theoretically you lose a measure of accountability. There might not be consequences. However, as I said, I think if speech itself is unlawful or otherwise unprotected, then there is no right to anonymity.

Some say the Roberts Court is a friend of free speech, others say it’s a foe, and many say it’s somewhere between those extremes. What’s your take?

The conservative court has been more protective of speech than a lot of people acknowledge. I think it has been quite speech-protective, though not without exception. I don’t agree with all of its First Amendment cases. I think it was wrong in Holder v. Humanitarian Law Project, which upheld an incredibly broad ban on assistance to groups listed as terrorist groups, even where the assistance might have the effect of facilitating the abandonment of terrorism.

Over time, I have shifted my views in the campaign-finance cases, and I think the conservative bloc dropped the ball in Citizens United. Also, I’ll be curious to see what happens if the Court takes up a First Amendment claim in a terrorism case that tempts the justices to restructure Brandenburg so as to make dissenting or dangerous speech easier to prosecute. As Geoff Stone and others have pointed out, the Court has often failed to protect First Amendment rights in the face of amorphous claims that national security interests were more important. Post-9/11 terrorism cases raising strong First Amendment arguments may face a long road when they reach the Court.

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