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The First Amendment and a free people. A weekly examination of civil liberties and the media in the United States and around the world. The program is produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Bernard Rubin. With me today I'm happy to say is Charles rum bar the celebrated attorney who was principally responsible for changing American law in cases he contested on the subject of books like the lady charity's lover and Fanny Hill and Tropic of Cancer in the 50s late 50s and 60s and really turned around constitutional law in terms of how the court the United States Supreme Court viewed the right to print. There was no such thing after that time as something that is obscene without question. You have to prove it. His latest book is The Law of the land which has just been published by Simon and
Schuster in New York. It's called the law of the land the evolution of our legal system. Charles Rambert our first welcome. And let me ask you a hard question. I am smitten with your book simply because it talks about the law of the land by concentrating a great deal on the presidential evidence the historical evidence going back to your fascination I believe with Henry the seconde and people like Thomas Beckett. Is it a fact that the essential principles of law as it affect liberty don't change from decade to decade but based upon some victories and defeats of hundreds of years ago that we're trying to maintain. I think their. Principles are based on a series of victories and defeats and advance a retrogression.
But in general if you were able to put our individual our individual liberties on a graph you'd see a gradually ascending line jagged line with ups and downs. But in the main ascending I believe that we that is the people who live in America now have greater individual liberties than any people have ever had. And. This degree of freedom has to be attributed to a slow struggle that began very early and began in biblical times actually and has continued to this day. Well in biblical times it was considered good to
have some sort of trial if I may use the word inappropriately by ordeal and somehow if you survived the ordeal we've come a long way from the ordeal which was almost prejudgment wasn't it. Yes well if we go back to the the early methods of the Anglo-American system because it is one system right what exists in England and what exists here. The people were you might put it this way they had a very low level of self-confidence and they felt that they could not themselves judge things. And so in one way or another they left it to God. The ordeal was one thing. The person accused for example was made to carry a hot iron. He got a wound. If within a certain time the wound healed he was innocent if it festered he was guilty.
You have ordeal by water where the person is plunged into a pond. If he thinks he's innocent that's sort of a can't win proposition there. Then there's trial by battle where champions actually fight to determine who's right there again. The decision is too hard for man so it's left to God. God will will make the right side win the battle. They also had that more complicated thing called COMPRA geisha and where. The man accused swore he was innocent and then a bunch of friends come in and swear not that he's innocent but that he's the kind of man who tells the truth which seems to make sense except that they had to be exactly the right number of people and I had to say exactly the right words ritualized recitation and if they
stammered he was guilty. So there again you're leaving it to an outside force a divine force against that. You have the Norman conquerors rather addicted to rationality. But dealing with the people who are not rational. William Rufus the the son of William the Conqueror who was in many ways a bad king but no fool at one point trying to get rid of or deal in a case that he was interested in so that God was overburdened and he'd be willing to take on the burden of deciding the case. So I was like Fiddler on the roof the roof was in regard to these questions of ordeal I'm asking you two or three questions in a row because I want to arrive at the prime one. The idea of judging facts by a jury by citizens not
God intervening in some mystical fashion but by people doing this with some sort of rationality that took a long time. As I recall the trial of William Penn was important in that the jury voted against the Crown's instructions. The yes that in a way marks the culmination of the jury's power up until that time a jury could be what they called a tainted. That is the way you appealed from a jury's verdict was by bringing criminal action against the jury itself saying that they had rendered a false verdict. In the trial of William Penn you're quite right. They it was finally decided that it was call Bushell's case because Bushell was the juror. They finally decided that a jury's verdict was final.
This was the case that William Penn was accused of assembling against the Roy laws not to assemble he was a Quaker and so he was really trying to express opinions which was against the law because it was hell that anybody who stood in the street in more than groups of three was a conspiratorial against the ground probably a Catholic or somebody like us. Well even so earlier in the century so great a name in the development of our law Edward Cook said that you have no right to criticize the crown if there's something you don't like. Go to parliament get a bill. But you mustn't say anything against the Crown. And it was those were harsh times and people who expressed opinions that those in power didn't like were drawn and quartered. Well Cook was the one in your own evolution of our legal system in your book you you say that he would not bend the knee to the crown he would bend it only to the law of the law and he
yes he had a very strange career. He started as. Attorney General for the crown. And in that capacity was harsh and dishonest. You're his sovereign was James. Yes. And really against everything that he later fought for. He then became a judge and a great judge the greatest scholar of his time. And began to advance the notion of the supremacy of the common law and eventually went to parliament where he was one of those who fought against the royal autocracy. It's an odd odd man that I wish I could really know because his views seem to fit his personal ambitions at every stage. On the other hand at
the end he was very brave very brave. And maybe some people just get better as they get older. They do know when when other about James the Second was it not. The first is James the first excuse me in the battles between Henry the Second correctly and Thomas Becket where they were arguing the question of the royal authority which eventually became the public oath already vs. the ecclesiastical authority. You said in the book. Well Henry who comes out very well Henry the Second comes out very well as a rationalist in your book even against his own family which tried to destroy him his wife Eleanor and his children always forgiving them raising the banners against his own rule. But you said in this battle with Thomas Beckett that Henry was a battle which perhaps should never have been fought that Henry was petty but Beckett was absolutely nutty would you explain that a little bit.
Well. Let me put it in a larger context. We live in a framework of law. Everything we do is conditioned by the law whether we're aware of it or not. In earlier times the law and religion were one thing. The first five books of the Bible are called the Torah which literally means the law. The Qur'an means the law. Confucianism is a series of precepts for right conduct with in Rome and Greece. We get some secularization of the law. Then Henry the Second comes along at a time when the most powerful force in Western Europe by far the most powerful force is the church and in most ways a liberal force more advanced than than the
bulk of the people. Thomas Becket represents that force. Henry is intent on the secularization of law in England. He wants England to be governed by a central authority which is a political authority rather than a religious authority. He and Bakhit who were originally were friends. Henry is a matter of fact picked Beckett from a rather low stratum of society and raised them to his high post. They come in conflict. Beckett was a man of extraordinary intellect and great power with a number of personal failures. He was very much interested in pomp and wealth and display of wealth. One of the richest people of the church of his day or
one of the richest people of his day period and eventually his battle with Henry got to be a personal thing. I guess a personal thing with both of them. But as I read what's available to read it seems to me that Henry was actually more interested in the welfare of his country than back at back it was more instant back. You think that Henry got a historical record by being charged with the murder of Becket. Do you think that it's circumstantial evidence. Oh yes I was. I guess I say in the book that Beckett's murder is said to have come from Henry's announcing who will rid me of this turbulent priest. And as I point out it's a beautiful English sentence Henry didn't speak English. He spoke French and Henry of course had a temper. He said that he chewed the rugs
several people report this well if it's possible they didn't have very many rugs and you can picture Andy just stuffing his mouth with what ever was around to hear I saw Lloyd saying things right. So I think you know we're always guessing things like this but translated into. Modern terms I can picture Henry particularly annoyed with Beckett saying something like I could kill that son of a bed. And then some of his dumb courtiers here that take it literally get drunk they were drunk when they did it go out and murder back which was the worst thing that could happen for Henry and Henry was much too good a politician to have wanted that to happen. In this law of the land Charles remember you you trace the battle between authority and rationalization of life and at one point you even remark that Richard Nixon wanted to deal only with the inner people and he chose the whole Germans in the early humans in
that group and only with one cabinet minister you suggest and that was Mitchell The attorney general whom he chosen maintained as a particular friend simply because he represented the same kind of regal attitude toward the elective situation the elective processes of the people that any or authoritarian King in medieval England would have next either did not understand democracy or held it in contempt. It's the only way to account for his actions. That is what is so. Startling about Nixon we've had all the corrupt politicians and we will have in the future. What was remarkable about Nixon was his utter contempt for law and the democratic system. It came out in a rather foolish little way when he had
those guards at the White House all dressed up in the fancy uniforms. It was in a tiny way I think it really reflects the man's mind. Now when we take a look at Nixon and without dwelling on him it's a classic case that has to come up every once in a while of a struggle a titanic struggle to maintain your progress if the Nixons win. Then you slip back. If the Supreme Court becomes too tough on the First Amendment people become anti First Amendment or they blame freedom of expression for all of their problems. Yet having said that I know that you are dubious about some of the uses being made of the First Amendment today. Could you dwell on that for a moment. Yes I feel that the First Amendment is being extended into areas where it doesn't really belong.
For example to protect commercial advertising. Again in the obscenity field to protect performances that most people find objectionable. We saw it again when the Supreme Court decided that a law regulating contributions to elections was unconstitutional as though spending money was a way of was the equivalent of expressing your opinion. The. Perhaps I might take you back to one of those illustrations that you just gave. You said before the program more explicitly that a girl dancing in a topless bar her jiggling would not necessarily be
an expression of her mind and therefore you ought not use the First Amendment forward. Where does the confusion come in other words what is the schism how should we divide the subjects that ought to know what not to be useful for the First Amend well. The most libertarian of our Supreme Court justices Hugo Black and William Douglas always drew a line between expression and conduct. Now there are some things that are a mixture of expression and conduct and they're drawing the line becomes difficult but that's where they drew it. The idea of the First Amendment is that you can say or write whatever you please within with certain very limited exceptions such as the famous one of printing the sailing dates of troop ships in wartime.
There are some exceptions but in general if what you're doing is attempting to communicate. You're protected. On the other hand if what you're doing falls on the side of the line that's considered behavior conduct action. The business of government is to regulate conduct behavior and action. And justice is black and Douglas always said that very firmly. In other words in one area your conduct is under the police power as it were of the state health safety and morals and morals may be a little questionable and on the other side if you're communicating that is the freedom of expression. Now black and Douglas are both gone. Brennan was also a very strong voice for these these views. Where is the present court taking us. Do they know. I don't know if they know they are on First Amendment things. I have
to put this in quotes. Liberal. It's sort of an easy way to be liberal while you're being very harsh on other things. I think that very often they get free expression mixed up with free private enterprise and what they're really doing is protecting business. Not not the world event elect was the court shocked as an institution by the Vietnam situation by the post Vietnam situation. Are they out of kilter with the rather chaotic life that we lead. It does not account for the fact that the they would like to see it and some of the decisions more orderly. That's very good thought at your thought not mine. Yeah I thought I had. That may well be but also the history of law
is a matter of ups and downs and the Warren court went very far in the protection of the accused. To an extent that many people who are charged with the enforcement of our laws who are not harsh people who are acting in good faith believe that they are just too handicapped. And as a result there is less water more crime than there ought to be. So to some extent you have the court backing up for that reason but they're not wiping out what the Warren Court did. We had a so-called Miranda case a couple of weeks ago the Miranda ruling required you to read the defendant is the person accused his rights his rights when it says when a person is taken into custody he has to be told that he has the right to remain silent that whatever he says may be used as evidence against
him and that he needs and that he has a right to counsel. And they do nothing until his lawyer comes. What happened in the case that they decided a couple of weeks ago was that a man arrested on suspicion of murder with a gun was in a police car and one of the policeman remarked to the other it would be a shame if that gun were lying around and some child picked it up and hurt another one. Whereupon the suspect told them where the gun was and that evidence was used against him. Now on the facts I think it's a bad case. It in effect penalizes a man for for a good deed even though he was a man who had committed a very bad deed before that. And also that sort of chance remark can be used as a method of
interrogation. But what the court said was that we're not abolishing the Miranda rule and we're certainly not. And if it had been a direct question it would have been the other way. In fact we're raising it. So right what what you have from this court is not an overthrow of the protections for the cues that the Warren court established but sort of a trimming down in those situations which were not covered by the earlier cases. Now we've had a spate of cases when one studies constitutional on the First Amendment. There really are no cases in the last century. There's a dearth of cases one or two in this century especially after the privacy article by Warren and Brandeis and in the 30s 40s 50s you know end of it. Are we now going into a period when reflection and consideration rather than ruling. To be more
precise one of or two of our people appear on this program have said it's ridiculous taking all these cases and newspaper cases into court. Publishers have said to me we ought to protect our own rights instead of turning these things over to the courts all the time. How do they expect to protect their well they think that they ought to fight it out more before they run to their lawyers that they ought to protest they ought to assert they ought to spend some of them money being a little more brave rather than immediately to say to their lawyer if you say it's out it's out. Oh I see. Well that depends on who their lawyer is. I advise publishers and writers and I often tell them leave it then leave it in. The lawyers are inclined to be a little too cautious. And in my view they are. I think it too often governed by the thought that if I tell my
client he can do it he gets in trouble he'll hold me responsible. But if I tell him he can't do it and he doesn't do it the question will never come up and I won't have a black mark against me. I don't think that's a proper function of a lawyer certainly in this field in the field of free expression. His function is to help his client. EXPRESS As much as possible print as much as possible say as much as possible within the rather loose limits that are now established. You mentioned that you know we didn't see much about the First Amendment in the courts until recently. And we hear expressions of dismay and regret every time there's a decision against the publisher the writer Well the fact is that we heard nothing about the First Amendment because no one thought to invoke it for a long long time it was only in the 1920s that the courts began to talk about the First Amendment. And now for example that there are all these cries about how tough the
libel law is on publishers and writers Well actually the law libel law has been extremely weak and so far as plaintiffs are concerned. And the reason we have cases is that every time the law moves people move right up to the edge of it. They have a new liberty and they exercise it. And you get more cases. Do you feel that the giant institutions of publishing newspapers magazines book publishers television network operators are too conservative when it comes to understanding where they ought to go do you find that the institutionalization business is a handicap in getting more First Amendment extension. Well you would think it would be but in fact it it it is not. We get. The we get much better news for example
when the networks handle it. Then when local stations do. In my judgment this great power that has been amassed has been used beneficially it's still worrisome to see such a concentration of power but in fact newspapers and the electronic media are much better now. The people get more news more facts more views than they did 50 years ago. Well I'd like to say that's a good way to end this discussion on a note of optimism. I think you are absolutely correct. But we still have to fight every battle in a pitch sense when it comes before us. When Charles Rambert our it's been delightful having you and I recommend heartily your new book The Law of the land. For this edition Bernard ripping. The First Amendment and a free people weekly examination of civil liberties and the media
in the United States and around the world. The engineer for this broadcast was Barry Carter. And the program is produced by Greg Fitzgerald. This broadcast is produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University which are solely responsible for its content.
Series
The First Amendment
Episode
Charles Rembar
Producing Organization
WGBH Educational Foundation
Contributing Organization
WGBH (Boston, Massachusetts)
AAPB ID
cpb-aacip/15-11kh1hfp
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Description
Series Description
"The First Amendment is a weekly talk show hosted by Dr. Bernard Rubin, the director of the Institute for Democratic Communication at Boston University. Each episode features a conversation that examines civil liberties in the media in the 1970s. "
Created Date
1980-05-21
Genres
Talk Show
Topics
Social Issues
Media type
Sound
Duration
00:28:57
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Credits
Producing Organization: WGBH Educational Foundation
Production Unit: Radio
AAPB Contributor Holdings
WGBH
Identifier: 80-0165-07-09-001 (WGBH Item ID)
Format: 1/4 inch audio tape
Generation: Master
Duration: 00:28:38
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Citations
Chicago: “The First Amendment; Charles Rembar,” 1980-05-21, WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed March 29, 2024, http://americanarchive.org/catalog/cpb-aacip-15-11kh1hfp.
MLA: “The First Amendment; Charles Rembar.” 1980-05-21. WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. March 29, 2024. <http://americanarchive.org/catalog/cpb-aacip-15-11kh1hfp>.
APA: The First Amendment; Charles Rembar. Boston, MA: WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from http://americanarchive.org/catalog/cpb-aacip-15-11kh1hfp