Fight For Your Right

As Americans prepare to celebrate Independence Day, we do so amid ample reminders that freedom isn't free—clandestine videos from the streets of Teheran are the latest reminders of how dangerous speech can be if unprotected. When it comes to free speech issues in the U.S.—and especially in the publishing world—the name of Martin Garbus rings out. Author of six books, including The Next 25 Years: The New Supreme Court and What It Means for Americans (Seven Stories, 2007) and Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way (Random House/Times, 1988), the prominent First Amendment attorney will be the subject of a new film, Shouting Fire: Stories from the Edge of Free Speech, directed by his daughter, Liz Garbus, and airing June 29 on HBO.

PW caught up with Martin and Liz to talk free speech.

PW: Congratulations, Liz, on the premiere of Shouting Fire. Notably, two of the stories you chronicle are related to fallout from 9/11—including the saga of Ward Churchill, whose story I found far more engaging in your film than has been portrayed in the media.

Liz Garbus: Yes, the reason that we were inspired to make this particular film is because after 9/11, when the nation fell under attack, civil liberties and freedom of speech also came under attack. I think that my perspective before and after I met Ward Churchill was the same as yours. He likes to cause controversy, he likes to stir up emotions and feelings, and he has political convictions and doesn't pull his punches.

PW: Martin, in the film I was struck by how you've defended free speech even when the people or the causes you've defended have been distasteful. How difficult is that to do?

Martin Garbus: It isn't easy. At one point I had the Pentagon Papers in my house for two years and the FBI outside my door. What I found was that any time I touched one of these cases, my practice diminished. The whole idea of trying to maintain a practice while you're also doing this controversial stuff is very difficult. It seemed that each time I took on one of these cases, my salary was cut in half. First of all, a lot of it is pro bono. I often represented people when no one else would. I represented the Revolutionary Communist Party, for example, and they were enormous troublemakers in the '60s.

PW: In the film, I learned that the army's censorship directly led to your law career.

MG: That's right. I used to give kind of current events talks [while I was in the army]—this was just as the Korean War was winding down and the Red Chinese were allegedly pouring over the border. After one of my first talks, I think it was about Sacco and Vanzetti, my superior [officer] looked at me and said, “You know, you shouldn't do that.” The next speech I gave was about a book written by the Harvard dean of law, Irwin Griswold, called The Fifth Amendment. It was relatively a dispassionate talk, but I argued that the people who utilized the Fifth Amendment under McCarthy had an absolute right to do so. My superior told me I had one more chance. Then, I gave a talk about why we should recognize Red China. I was court-martialed. In the end, the army cut a deal. They stripped me of my security clearance, stuck me in Queens with an empty desk and gave me absolutely nothing to do. So I went to law school at night at New York University, which, if not for the army, I otherwise could not have afforded. And since I had nothing to do all day but study, by the time I got out, I had done more than two years and just had to finish up my third.

PW: Liz, your father is regarded as a great defender of free speech, and as a filmmaker, you've chosen a career practicing free speech. What was it like growing up Garbus?

LG: It was a stimulating household to grow up in. There was always some sort of political conversation going on, and it really varied from, you know, the Weather Underground or Salman Rushdie's Satanic Verses to having Robert Redford and those people stopping by. There was a real sort of salon feeling, a lot of intellectuals and writers. Obviously, my father's work with writershas been the mainstay of his practice, and a lot of these cases he has felt really, really passionate about, so the conversations were often quite heated. We definitely practiced free speech at home! My mother and my father allowed us at a very early age to express ourselves.

PW: As Liz said, writers and publishers have been a mainstay of your practice. How did that work begin?

MG: I lived in Greenwich Village [in New York City] while I was in law school—this was around 1956—and I got to know a good deal of the art community, writers, filmmakers, painters, and I realized that there was just a great deal of censorship going on. Early on, I represented Allen Ginsberg and Gregory Corso in a drug case. The first very big case that I played a major role in was Lenny Bruce's obscenity case. But I also had another very important free speech cases called Ashton v. Kentucky [1966]. That's not a well-known case, but it was very significant because the Supreme Court struck down criminal libel. Up until that time, you could be prosecuted criminally for libel. And of course I represented Barney Rosset and Grove Press.

PW: In the modern age of consolidation, do you think we'll see vanguard figures like Barney Rosset rising to defend free speech in the publishing industry?

MG: I think you'll see people like Barney Rosset again, but where you'll see them is at small, independent publishing companies and on the Internet.

Publishing has changed a lot. Now, it's all business. When it comes to free speech issues, the people who run the publishing industry are the insurance companies. If there is a question about something, the answer is often “don't publish,” because if you don't publish, you can't get hit with a libel suit. I just recently gave a speech for Barney Rosset, who's a singular figure in American publishing. At one time he had a vast fortune. He's now penniless—or very close to penniless. He must have supported half the First Amendment lawyers in America in the 1970s. He's just starting to be appreciated now, and maybe the reason he's being appreciated is because he's so different from some of the suits today.

PW: The Internet is a powerful, democratizing force, but critics also point out that an all-digital information world could lead to greater control, such as Web filtering. Does technology pose a potential danger to or change free speech?

MG: I think the Internet is uncontrollable, and that technology is going to lead to freer, greater speech and lead to the possibilities of no longer censoring or banning speech. Technology is marvelous for free speech. Since words are everywhere on the Internet, hopefully certain words will become so common that people won't react to them anymore. I think that means that publishers will be freer to publish more books that contain more information and material that, years ago, could not have been published. We'll have a totally different language standard. I think there will be far fewer obscenity charges. In certain areas, like child pornography, the Internet will be regulated, but very little else will be.

PW: In an early Internet case, you represented Eric Corley, publisher of 2600: The Hacker Quarterly, who was sued in 1999 by the major movie studios for publishing links in his publication to a code that broke DVD encryption. You argued that had First Amendment implications.

MG: Yeah, I lost that case. People just didn't understand it. We were dealing with the Digital Millennium Copyright Act (DMCA). I argued that the Internet is all about links, and that if you start telling people, reporters, what they can or can't link to, you would cripple the entire system. I remember I deposed [former MPAA chief] Jack Valenti, and Harper's magazine ended up publishing an excerpt of the deposition, and it was very, very funny. It was obvious that Valenti was oblivious to how the Internet worked, that the movie industry was oblivious to how the Internet worked. I argued that the case was like, say, if the New York Times reported there was drug dealing on Park Avenue, and then you go and buy some drugs, the Times could then be prosecuted. That was the analogy. Nobody bought it.

PW: Digital piracy is a thorny issue facing publishers, but should we be concerned that laws designed to protect digital copyright, like the DMCA, might facilitate too much control over speech?

MG: Absolutely. Copyright is not dead, but it's going to slowly decrease, and the reality is, there's nothing we can do about it. Publishers have to learn how to live with a new system. Piracy is a word that is used to protect copyright, but I think there's no way that you can have fair copyright laws that prohibit 90% of the world from getting materials, economically or otherwise. If there ever was that possibility in print, the Internet has obliterated it. You may see some major players in the book industry refuse to adapt and become like General Motors. But they need to be at the forefront of recognizing that copyright will not give them the protection it gave them in the past—they must be at the forefront, not be opponents, but at the forefront of trying new systems that compensate authors and allow people to have access to materials. On the other hand, at the present time publishers are the people who are paying the monies that enable authors to sit and write books. Until such time as the Internet industry does that, then it is the publishing industry's place. But I think it's just a matter of time until Internet entities are the ones paying authors, and not to recognize that is shortsighted. Somewhere along the way, the Internet is going to learn how to get Nora Roberts $10 million.

PW: Internationally, you've been involved with China and its development of an intellectual property regime. What have you learned from that experience?

MG: China has gone through this economic explosion, so people have the vision now that everybody in China is relatively middle class, or lower-middle class, which is preposterous. Once you get outside the major cities, the poverty is staggering. You have to get computers out there, and these people will never be able to pay even $200 for a Mac or an IBM. But they are going to have to have computers—and the [computers are] going to go for $30, $40. The only way they're going to be able to do that, ultimately, is to rip off other people's intellectual property. Something has to be done to get to China. The idea that billions of people are going to be deprived of computers, or the information on the computer, it's just not going to happen. That only encourages piracy. Putting aside censorship and all that other stuff, we want the guy out in the middle of the countryside to be able to read Charles Dickens. How could you not want that?