The First Amendment; C.l.u.m.

The eastern Public Radio Network in cooperation with the Institute for democratic communication at Boston University now presented a First Amendment and a three week old weekly examination of civil liberties in the media. In the 1970s the host of the program is the institute's director Dr. Bernard Reuben. I'm very pleased tonight to have as my guest two officials of the Massachusetts American Civil Liberties Union the Civil Liberties Union of Massachusetts Attorney James C. Hamilton who's the president of the Union. He is a partner in the firm of Homans Hamilton and Lampson the prestigious law firm in Boston. Also with me is John Roberts who since 1970 has been the executive director of the civet Civil Liberties Union of Massachusetts proprietor that he worked for the ACLU in Illinois and has been an intercity minister in such places as Cleveland and Chicago. Gentlemen let me ask you the first question sort of a frontier question if we want to use

that word. What are the new frontiers for civil liberties in the mass media insofar as you perceive these frontiers from your work over the last couple of years. Well it wasn't in in a sense the new frontiers are I suppose the old front tears that the First Amendment which is one of the main areas of our work has been on the books a part of our Constitution for 200 years and it's been subject to abuse for 200 years and the abuse continues. So a good deal of our work is simply holding the line trying to prevent incursions on First Amendment rights. In some ways very discouraging because a good deal of time it's repetitious work it's trying the same case all over again that was tried in 110 years ago or 20 years ago or 30 years ago but there are some some new possibilities I think especially when you direct your question as you did to the area of the media. We

may get into some some very new and interesting arenas of First Amendment rights. Certainly the radio and television media would would come to mind first. I think as as you and I discussed briefly earlier the entire question of the extent to which radio can be regulated by the FCC is one which has yet to be challenged in the court and which really has yet to be discussed thoroughly by lawyers civil libertarians and people in the media. One way of looking at the role the FCC would be to suggest simply that they have no other function but to distribute along the wavelength licenses. They have no other responsibility they have no right to control or even examine a program content that would be a purist civil liberties perspective. That issue has yet to be raised but certainly a number of people are discussing it and I think that will be one of the newest frontiers of civil liberties in the media. In other words you are suggesting that

whatever pertains to the print media traditionally should under the First Amendment pertain to all mass media is that the essence of it precisely that the only raise on that row for the FCC in the first place was because there were a limited number of spaces available on which to put radio and television channels so that there is some regulation or some licensing was required. But that's no longer true. There are certainly as many spaces available now as there are people with time money and the energy to run radio and television stations with with ultra high frequencies and so forth. So that how one translates this requirement to distribute over the wavelengths the number of stations into a right on the part of the government to decide what the program content should be I don't know. And I think the First Amendment. Would serve as a block just as it does to serve as a block against any government interference with the content of a newspaper. John Roberts how do you see it.

Well I think perhaps another area frontier issue is concerning the content in the commercial pages of a newspaper whether the same First Amendment rights extend into the into the commercial pages as extend to the news and editorial pages and this was a debate within the national board and it was finally decided that in the tradition of the purest First Amendment tradition. Yes. Even within the commercial sections the first amendment would apply there which would allow the newspaper to really do what it wants basically let's say General Motors asks a newspaper or a television station for the right to present a 20 minute program or half an hour hour program that they want to buy it to present their point of view on automobiles or on the energy crisis or whatnot. We traditionally know they've had difficulty.

Sometimes they get this very sometimes they don't but usually the stations say we've covered that in our you know news programs. They're much more easy to get it from the newspapers magazines. Would you rush to the aid in this theoretical case hypothetical case of General Motors and say they should have the right to buy whatever space they want. John No I think we would we would defend the right of the of the of the media to. Be selective of their programming. But isn't it isn't their right to decide and to say no. A form of censorship unless there is some other very good reason for saying no. But you know you you can always take that point I mean another. I'm just pursuing a purist point on the First Amendment I'm where I'm where we where we where we see this even more. More glaringly perhaps is in an instance where you have a newspaper in one particular town a small town that takes commercial

advertising for one candidate but refuses it for another. Now you know you could argue on one side that that's the only newspaper and you know in all fairness. And to be fair to the political process you would have to have access both candidates would have to have access to that newspaper. Again the Civil Liberties Union has come down on me on the side of the of the of the press in that instance to say no. The newspaper does have the right to run only only one side of that. That's been a real heated debate will burn I think the one of the problems is that the underlying theory or underlying set of principles behind the First Amendment assumes the so-called free marketplace of ideas it assumes that if the First Amendment is rigorously enforced that is that nobody's right to free expression is in any way abridged. Then each person will have a right to speak out and will speak out each cause will be

heard. If that assumption proves in practice to be untrue then I suppose we have to re-examine the entire Bill of Rights and particularly the First Amendment. And I agree that in the case John mentioned that is of the small town with one newspaper. In practice the First Amendment principles are somewhat difficult to apply. Nevertheless there is no such thing as a totally isolated one newspaper town. Certainly the people in that town have access to national magazines. There are literally hundreds of national magazines some very popular as Time and Newsweek some very obscure. There are radio stations there are television stations there are weekly newsletters there may be county newspapers or newspaper some other large city nearby. So that I think the underlying principles that is the notion that if a free marketplace of ideas is kept open all ideas will be expressed and heard and sifted still works. And that so far we don't have such an isolated situation we have to worry about changing our

fearless I was the situation I've observed is different in some other countries is becoming different in Europe. For example there are there are communities there are whole countries in which people are getting on your limited spectrum no matter what they do. And this has become a great worry for example to our friends in Great Britain. And I was to how wide they can keep a spectrum of the marketplace of ideas. And they are beginning to wonder whether it is wide enough. We are still more comfortable you feel we haven't reached a flashpoint yet to worry about that. That's right I must say that. Things have gotten a bit worse over the last few years with the demise of newspapers and that many even large cities now are one one newspaper towns I. We as civil libertarians are delighted to be in Boston because Boston is still a multi newspaper town with two of the main dailies constantly at each other's throats as it should be competing vigorously.

That kind of situation I think is extremely healthy and I'm very disturbed to see that cities of comparable size to Boston do not have that kind of situation I think if that if that were to continue I would continue to be more worried like to just shift gears a little bit now gentlemen and ask you to comment on something that everybody asked you to comment about and that is what is the Civil Liberties Union's view in its rationale in its defense of Nazi partisans of people whose views are anathema to to most. And yet. It is a well known fact that even in the most difficult moment when people are very worried about violations of their own rights the American Civil Liberties Union comes in and says this George Lincoln Rockwell should have the right to the rostrum or in Skokie Illinois regardless of the local composition of the community a large proportion having.

Learned some horrible experiences in Nazi concentration camps. A parade should be allowed through the center of their community. I understand some of the rationale but a lot of people worry about whether you are. You said you take the same case over and over again. Do you ever get trapped to becoming in effect part of the publicity machine with the Nazis knowing you are going to come in at the right moment. Well yes I think I think we would have to say that. I think recently that the Nazi Party is targeting certain communities for this and getting a great deal of publicity for it. They get the publicity because the people in the community take up the cudgel and don't ignore what these people were ignored of course we wouldn't have an issue. But when the community like like Skokie reacts the way it does and says well we're going to pass an ordinance which says that for anyone to to demonstrate in

Skokie they have to put up with three hundred fifty thousand dollar bond. They cannot they cannot wear uniforms they cannot wear certain symbols and make those ordinances so sound like he longs tax only on certain newspapers yet he's here in a lot of the ones here. When they read them when they react in that way of course then then the battle is joined. The Civil Liberties Union if nothing else has been consistent in its defense of any organization or any person. Being able to speak and to demonstrate and at any given moment we are representing people on the left and on the right. In this town and school desegregation began we were at the same time representing the Nazis to be able to leaflet to be able to speak as we were defending the Committee Against Racism of the of the Progressive Labor Party to march

people become terribly confused very often they say gee you know you got the Black Panthers on this side and you got the. Nazis on the other side where what are you people doing how can you defend. The point is we're we're defending is not is not their ideas or their ideals we're defending their right to speak. And we say we're consistent on this and so that when it happens in Skokie Illinois we we fight that ordinance and that's basically what we're doing in that in that instance. Why did you. Why do you think that there was certain membership attrition of the American Civil Liberties Union over this issue are the people that and I think is exaggerated is the number that you lost probably but the people who left the organization are not not understanding of the of the civil liberties points or are they of a different view as to the role of this it will Liberties Union in such cases in other words is there a dispute in the organiser that's a that's a very interesting question Byrne that

we're trying to analyze ourselves right now and I don't think we've come to any conclusion. There are some tentative hypotheses which have been advanced and I think kind of interesting. There is no general dispute within the organization about whether we should represent unpopular causes be they Nancys communists or Ku Klux or anybody else as John pointed out we're not defending them we're defending the First Amendment. Always have been and always will and frequently the people whose rights need defending are the people who are the least popular most offensive to the most number of people. And that's why these cases attract media attention but you back to your original question of our attrition membership it hasn't been all that large but there was indeed a discernible attrition in membership after the Skokie Illinois case. The theory advanced that I find interesting is that we had a large increase in membership in the late 60s and early 70s during although. We weren't specifically involved in anti-Vietnam activities we

were certainly involved in protecting demonstrators or defending demonstrators in defending people involved in draft dodging and so forth we had a principle role in the early days of the impeachment movement. The Civil Liberties Union took that on and I think attract a lot of members as a result of that the Vietnam War is over. Watergate has come and gone and it's entirely possible that a number of people who joined during those times for those reasons have didn't understand the complete scope of activity of the Civil Liberties Union didn't realize that defending one person's right to speak means that you defend everybody's right to speak and as they found out the scope of our activities said well that's not the organization for me and left. And I think that that. Simply maybe people came in under a misimpression of those four words Thank you Jim of those who stayed. Is the argument clear cut. Is it

settled peace of mind here or is there within those who stay so some concern about the next case as to whether the union should jump. For example say you do the same case over and over again. It's necessary under the First Amendment. Do you ever classify a case and say we're not going to do it this time we're going to give the court our brief in the last one. Well unfortunately that's not so easy to do John. Yeah this is the only area that we take every case where highly selective really it's a small organization and weak and weak. We cannot take. Many cases then are we get 30 or 40 phone calls a day of people that have problems. The area of the First Amendment we say we take every case we think that's the cornerstone of our of our freedoms and the cornerstone of the Constitution and when you cut off speech you begin to silence people. It is when

all of the Bill of Rights you know begin to erode so when it comes to the First Amendment. Boy when it comes in on the on the phone you know we take the more I think the Tell Me I've just called up I've told you I've got a First Amendment case and involves me or something else. Perhaps the state perhaps it was the state police chasing the Nazis out of the state in 1973 and you came to the at that time. What happens do I get immediate attention. Well let me give you an illustration you know a few weeks a few weeks ago we got a call from the farm workers farm workers were picketing kinetic Connecticut Mutual Life Insurance company who owns a lot of a lot of farmland in the in the Coachella Valley in California. They were doing a 24 hour vigil about 8:00 or 9:00 o'clock they call me on the phone and they said that the police would come by and said we've basically Well we've had enough of this you've been here all day but Boston closes at 8:00 o'clock at night or at least the financial district does. And you should go home now. The phone call came

and I immediately called our staff attorney and we conferred and then called District one of the police had police and got the person in charge and said look this is what's happened and you know that the police can't do this they have a right to be there they're not blocking et cetera et cetera et cetera. And the man in command said yes I agree with you and call the car and said These people have a right to be there. Leave them alone. A lot of the First Amendment cases are really handled that way we'll call the police or we'll call someone to call counsel for someone's attorney and say look you know you know I can't do that and that's the end of it. So it's not a great expenditure of resources. Sometimes we have to go into court but there again even when we go into court the law is quite settled. We're not into a case that goes on and on and on that takes you know a tremendous amount of the of the organizations resources so we can handle them you know fairly

quickly and fairly easily now. How do you handle. Your decisions as to where you are per year each year do you. Do you have a meeting. I know you have a national need you have a state meeting to decide. This is the thrust we not only are responsive to cases brought to us but this is where we ought to do work. How is that that we certainly never can get into one area of emphasis to the exclusion of everything else except as John said in First Amendment area we tend generally to take most First Amendment cases that come along but from time to time we have special projects or special emphasis. Some of it depends on the talent available at a particular time to our local organization or to the National some of it depends on how we perceive the need whether we give me an example of this we a few years ago. Had a Privacy Project at the Civil Liberties Union in Massachusetts which was very active. It was at a time when sensitivity to rights of privacy was just developing

really. I think the general public now is is really quite aware and sophisticated about rights of privacy. Seven or eight years ago I don't think that was the case. We were instrumental in drafting legislation in bringing some cases and that was done because we had a special director for the Privacy Project that we had decided to put a special emphasis on that. And that lasted for several years. Our director decided to leave and go to law school and that was for the moment the end of our Privacy Project. And what happened to that director after that. And she's finishing law school now and will be active in civil liberties work I'm sure the byproduct is an inspired lawyer. Yes exactly I said at the moment we have a Women's Rights Project and a prison project or Prisoners Rights Project. Those happen to be two areas we think are extremely important right now. Could you tell me what the progress is on these two projects. John-John Well yes in the area of of women's rights we've we've been involved in.

Employment discrimination cases we've been involved in cases concerning correctional institutions rights of women within within correctional facilities they they don't get what men get. Men don't get that much but access to the library access to recreational facilities actual access to work release access to things like that. So we've had to you know we've had to do that we're concerned about abortion rights rights to abortion We've had cases a number of cases in that area. What's your position there. Well our position is that we believe that a woman has a right to control her own body into and to make decisions concerning concerning her own body and so has would have a right to an abortion. And that one of course is heating up now. We've been involved in the Equal Rights Amendment. Now that's just a stop on that abortion thing you're actually taking a position beyond the right of the person to speak. You're taking a position on the

subject matter. No you're not. Because if somebody said I was denied the right to speak anti-abortion you'd run to their defense. Absolute Oh sure absolutely. Do you do you do you have this as a problem. I don't say it is a problem but you do have a position on this is that a problem when somebody calls you up. Oh no that because that has. How did you get that position how did you write it has to do with it other than the First Amendment that has to do with rights of privacy rights of free choice. Is this done by a meeting of your council. Yes you hold a poet amongst your members in general has no policies developed really by the by the board of directors which is elected by the by the membership a la many around the board. There are 30 on that board. Key leaders of the community is a general description as well. They're elected really basically from the membership and among people who have often demonstrated a concern to the attorneys that have done cases or other people that we know of who are members in or in the community that we know has demonstrated some some concern.

But a lot of our policy is developed by the National Board national board really functions as a think tank for the organization with its committee structure. It is better equipped to develop policy a law that does not exclude the local affiliate from developing policy and very often affiliates develop policy ahead of the National Board we for instance had a position on the marijuana the decriminalization of marijuana long before the national board did and sometimes when there is no policy the national board level will get into it and develop it. But most of it really is developed nationally and it's contained in the manual it becomes sort of a Bible for us. Oh I see. And do you go to these meetings yourselves at the national level to give them some input as to Massachusetts feeling. Yes there's a there's a representative from each state affiliate that goes to the

to the national board sits on the board. Frequent communications come from our members to the national office and there's there's there's no lack of the chance to exercise every right or free speech available and I'm afraid our members perhaps do it to excess. What would have been some of the recent things that you've been working on. I mean your list one of six months or so well beyond the projects that the other other was of course the Prison Project County focusing mostly on county correctional facilities where we found that no one is paying much attention there are people working in the state and federal prisons concerning prisoner rights but at the at the county level there really wasn't anyone and we receive a lot of mail from from from prisoners pretrial detainees who are locked up 23 hours a day. Who again don't have the kind of rights that prisoners have in the state and in federal system convicted.

So we're spending a good deal of time on that and that again is this is it is a special project so I would say that our emphasis of course is whether the projects are as well as the as well as the First Amendment area Jim. Then there are the usual assortment of Freedom of Information Act cases illegal search and seizure cases. Some very In other words some very traditional civil liberties cases that come along and some very some very new ones I'd like to repeat really for the sake of emphasis what John said before the way in which the cases are handled is quite varied from the one telephone call way of handling a case which is frequent unnoticed and I think quite effective over the long range to the appeal to the U.S. Supreme Court which happens from time to time and in cases where you well enough in a sense to carry what you have to carry on through the

courts so we know it's not a process we never have enough money. You never have enough money. But are you are you desperate for money or civil rights to search your support. We're surviving but it's only because people like John Roberts our executive director and other members of the staff are willing to work at a pathetically low wages and because we have anywhere from two to three hundred volunteer attorneys in the city of Boston who will handle a case a year or two or three cases a lawyer. I'm glad you told me that would the firm of Homans Hamilton and Lampson take the case of John Roberts against the misuse of Civil Liberties Union on the grounds of peonage. Yeah when the public says it is strange you should bring that about that case is in process and I would rather not comment on it at this point. This is just a final question. How much of your time James Hamilton has taken up as a lawyer in this work. Well I haven't been able to really figure that out I've been president for a little over a year and the term lasts through through another year and I suppose it's about 20 or 30 percent of my time.

Well it's time very well spent and I think one of the things you've done in this program is to illustrate the kinds of work you do. Most people never talk about the internal Civil Liberties Union they just hear about it on the external side it's become a little more alive to me and I want to thank you both John Roberts the executive director and James S. Hamilton the president of the Massachusetts Civil Liberties Union. This is Bernard Ruben saying good night. The eastern Public Radio Network in cooperation with the Institute for democratic medication at Boston University has presented the First Amendment as a free people a weekly examination of civil liberties in the media. In the 1970s the program was produced in the studios of WGBH Boston. This is the eastern Public Radio Network.

This is Bernard Ruben the host of the series the First Amendment and a free people. This week's guests Mrs. Richards and Hamilton the director and chairman of the board of the Massachusetts Civil Liberties Union. I hope you will tune in for the discussions of issues involving U.S. media and civil liberties today.