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BACKSTORY:
A Review of Joseph Russomanno's Recent Book on the People and Events Behind Ten Important First Amendment Cases


By RODGER D. CITRON


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Friday, August 30, 2002

In his recent book Speaking Our Minds, Joseph Russomanno, a journalism professor at Arizona State University, provides an oral history of ten notable First Amendment cases. All but two are cases decided by the U.S. Supreme Court.

The First Amendment serves society by promoting robust debate about matters of public importance; Russomanno's book attempts to increase our understanding of how the Amendment works in reality, for particular people in particular places and situations.

The idea is a very good one: the most prominent public record of such a case is generally the judicial decision that resolves it, and such decisions rarely, if ever, tell the complete and colorful story of all the events and personalities that went into their making.

Limited Access Results in Only Partial Stories For Eight of the Cases

With respect to each case, Russomanno has interviewed the clients and the lawyers, insofar as he has access to them, and allows them to tell their stories. Each chapter includes a transcript of his interview with the players, interspersed with background narrative, and an excerpt from the judicial opinion resolving the case.

Unfortunately, only two of the ten accounts of cases feature interviews with people from both sides. As a result, ironically, Russomanno's book often fails to fully represent the adversarial quality of First Amendment litigation, or to present the very kind of robust, two-sided debate that the First Amendment is meant to protect.

Still, Russomanno probably cannot be faulted for his lack of access to all the participants - and even the partial stories he is often forced to tell are interesting, if incomplete.

Russomanno also offers an interesting perspective on the law. The premise of Speaking Our Minds, according to the author, is that "[t]he study of law can be - and arguably ought to be - more than studying law. It is more than examining cases and the law that stems from them. Another perspective is to learn about the people at the center of the cases - their motivations, their beliefs, their feelings. And one method of accomplishing that goal is to talk with those people."

Freedom of Speech: Protest, "Hate Speech," and Parody

Russomanno chronicles the litigation in Tinker v. Des Moines Independent Community School District - in which high school students won the right to wear armbands to protest the Vietnam War. He also tells the story of R.A.V. v. City of St. Paul, Minnesota. There, a defendant charged under a municipal "hate crimes" ordinance for burning a cross on an African-American family's lawn successfully challenged the ordinance as a First Amendment violation. The two cases illustrate how both heroes and villains can equally invoke the First Amendment.

Russomanno also presents an account of Hustler Magazine v. Falwell. In that case, the Reverend sued for intentional infliction of emotional distress when Hustler published an ad parody purporting to describe his first sexual encounter - which, it suggested, involved his own mother. Ultimately Falwell's claim was rejected because, as Chief Justice Rehnquist explained, the First Amendment protects "'vehement, caustic, and sometimes unpleasantly sharp attacks'" made "in the area of public debate about public figures."

Freedom of the Press: Libel, Privacy, Anonymity, and Newsgathering

The First Amendment guarantees not only free speech but free press rights, and Russomanno surveys a number of crucial press freedom cases.

Two concern libel and privacy claims: Desnick v. American Broadcasting Co. concerned an unsuccessful invasion of privacy claim by the subject of a television news magazine story. Meanwhile, the decision in Ollman v. Evans and Novak provided guidelines on what constitutes an opinion, as opposed to a factual assertion, in the context of a libel claim that, as described below, was dismissed before trial. (Under libel doctrine, a suit must be based on a provably false assertion of fact, not on an opinion with which one disagrees.)

Two of the press freedom cases concern newsgathering. In Cohen v. Cowles Media Co., an anonymous source successfully sued two newspapers for breach of contract after they broke their promise not to reveal his identity. And in Nebraska Press Association v. Stuart, a court order restricting the coverage of a sensational murder trial in a small town was challenged.

Cases Relating to Commercial Speech, Cable, and the Internet

Cases that involve commercial speech and new media are also covered in Russomanno's book. For instance, in 44 LiquorMart v. Rhode Island, a store owner persuaded the Supreme Court to strike down a state regulation prohibiting advertisements that included the price of liquor.

In Turner Broadcasting, Inc. v. FCC, the "must carry provisions" of the 1992 Cable Act - which, according to the Supreme Court, required "cable television systems to dedicate some of their channels to local broadcast stations" - were upheld as constitutional. In Reno v. ACLU, by contrast, the Court sustained a challenge to the Communications Decency Act - an overly broad effort by Congress to deny children access to indecent material on the Internet.

Russomanno succeeds on his own terms - offering, as promised, a portrait of the people at the center of the cases, to the extent that he was able to obtain access to them. The stories behind the cases are interesting, and they remind the reader that cases - even those involving lofty constitutional principles - involve "flesh and blood people" (in the words of the plaintiff's attorney in Cohen).

The interviews also illuminate the different perspective of lawyer and party - and of plaintiff and defendant - as a case unfolds. In Ollman v. Evans and Novak, for instance, the columnist Rowland Evans and his colleague Robert Novak were sued by a political science professor. They had written a column describing the professor's intentions to indoctrinate students through teaching Marxism, and questioning his qualifications to assume a position at the University of Maryland.

Evans recalls having a "very sinister reaction" after learning that he was named a defendant in a $6 million libel suit: "You're very uneasy. It leaves you feeling pretty clammy and cold. If you get a judgment against you for $6 million and you're in our position, you don't have much left."

In contrast, the professor's attorney, Isidore Silver, says that the purpose of the lawsuit was not to enrich the professor or bankrupt the defendants, but rather to "even[] the score a little, maybe teaching them a lesson or at least getting some kind of publicity that you should not use the First Amendment to attack the politically defenseless."

The lawsuit was dismissed before trial, with summary judgment entered in favor of Evans and Novak. That decision ultimately was upheld by the full D.C. Circuit Court of Appeals after an en banc hearing. For one who has read Russomanno's account, it is striking how each side must have interpreted the victory - with Evans seeing it as the end of financial peril, and Silver seeing it as the loss of the chance to make an important political point.

The Limits Of Oral History: Far From a First Amendment Primer

Speaking Our Minds provides an interesting perspective on the First Amendment, but - as the author acknowledges - it should not be confused with a primer on the First Amendment. The excerpts from the judicial opinions at the end of each chapter are slender, with the result that the exploration of First Amendment principles in the book stays at a fairly basic level.

Furthermore, regardless of one's views on the insights provided by oral history, it is hardly controversial to note that participants have a tendency towards self-aggrandizement when asked about the significance of their case. Larry Flynt says his case "with the Reverend was probably the most important since New York Times v. Sullivan," while Dan Cohen insists that his case "all but supplanted New York Times v. Sullivan as the single most important newspaper case of the last 35 years." In the face of competing claims like this, it seems such assessments are better left to more objective commentators.

The Best Chapters Feature Interviews with Both Sides

Ollman, for example, involved a somewhat technical legal question. Nevertheless, the interview with the columnists suggests the importance of constitutional protection for commentators to express their views, even - especially - when they are controversial. Meanwhile, the interview with the political science professor reveals how he believes - strongly - that his reputation was damaged by the commentators' views.

While the other eight chapters features a different kind of conversation - between Russomanno and the side that he interviews - it is far less interesting than the conversation between the parties that occurs in the two chapters where both sides speak. Speaking Our Minds would have been more compelling had Russomanno been able to offer that type of conversation in every chapter.


Rodger D. Citron, formerly an editor of Writ, is an attorney in Washington, D.C.

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