Published September 16, 2020
Keywords: Culture and Society, Human Rights, Civil Rights, Constitutional Law, Legal History, Social Justice and Social Change
Title: Morris Ernst – Civil Liberties Pioneer
Article by: Cecilia Meyer
Morris Ernst was a celebrity lawyer before it was cool. He earned his living as a corporate lawyer, served as general counsel for the ACLU for 25 years, and had an essential role in expanding free speech rights in America. Samantha Barbas of UB’s School of Law and Director of the Baldy Center recently completed her sixth book, The Rise and Fall of Morris Ernst: Free Speech Renegade (Spring 2021, University of Chicago Press), which focuses on Ernst’s fascinating life. Cecilia Meyer of the Baldy Center interviewed Barbas about the book and the experience of researching Ernst.
Why did you choose Morris Ernst as the subject of your biography?
I have written books in the past on media law, First Amendment law, and legal history. I noticed that one person who kept coming up in my research was Morris Ernst. Ernst was a lawyer; he was general counsel for the ACLU for many years, and he had been involved in many important First Amendment cases. When I found that Morris Ernst left a very large archive of all of his personal papers, I became intrigued. I went to his archive at the Harry Ramson Center at the University of Texas and discovered that there were 600 boxes of his personal papers. This is a lot of material to process! I think that’s why nobody had written a biography of him - because they were really daunted by this amount of material.
Morris Ernst was general counsel for the ACLU between 1927 and 1954. He was very influential in free speech law; specifically, literary censorship. Ernst was involved in many important cases, most famously, the Ulysses case. He legalized that novel, which had been banned as obscene in the United States. He won a number of cases that went up to the Supreme Court and established important precedents. He was a very colorful person and it was quite enjoyable to write about him.
You wrote in a letter to the editor of The New York Review of Books (1) that Ernst helped to perpetuate the idea that he founded the ACLU, when in fact he did not.
One thing about Ernst was that he was always seeking the spotlight. I think he wrote as many as 22 books and hundreds of articles; he was always on radio and television. As he got older in the 1950s, he no longer had the public attention he had in the 1930s at the peak of his career. The world had moved on, and he felt left behind. He started claiming that he founded the ACLU. For many years the rumor circulated that he was a founder of the ACLU, but that was not true.
How did you tackle this huge project and Ernst’s massive personal archive?
This was the most overwhelming project I have ever done. I have written a number of history books and none were as challenging as this one. I made multiple trips to the archives at the Harry Ransom Center, where I went through each of the 600 archive boxes at least once, and some boxes multiple times. It required a lot of discipline and persistence.
Was there anything notable about Ernst’s personal life that you believe impacted his work?
Biographers often want to show how the personal traits of their subjects motivated them and affected what they did in the world. In the case of Ernst, he desired to be well-known. He was motivated by this feeling of needing to be known, applauded, and recognized. He was always being nagged by this feeling that he wasn’t good enough. He wanted to be celebrated. I had to work that aspect of his life into the story.
Morris Ernst was an advocate of free speech, but he was anti-communist at the same time. How did he reconcile those two beliefs in his career?
That is a complicated issue. He definitely became anti-communist in the late 1930s, but he didn’t think that communists shouldn’t be able to speak, that their ideas should be suppressed. He came up with this idea he called “disclosure.” He believed that if all the facts about communism were made public, the American people would decide to reject communism. His idea was that transparency and exposure would lead to the demise of the Communist Party in the U.S. He didn’t want to drive the Communists underground. That was the way he reconciled his belief in free speech and his anti-communist beliefs.
From 1940 on, he devoted his life to working against communism. He wrote extensively about communism, and developed a friendship with J. Edgar Hoover, head of the FBI, and tried to assist him in apprehending communists, including communists in the ACLU. This made him quite unpopular in the ACLU.
The book is entitled The Rise and Fall of Morris Ernst: Free Speech Renegade. How was Morris Ernst a renegade?
Ernst took on unpopular causes such as obscene books and reproductive rights. He was the lawyer for Margaret Sanger and her organization, Planned Parenthood. He was involved in important cases involving contraception in the 1920s and 30s. He defended civil liberties when it was a controversial cause.
Many of the free speech rights we enjoy today can be traced to Morris Ernst’s activism.
What about Morris Ernst did you find most compelling?
One thing that was compelling about Ernst was that he was significant in many areas of law, including literary censorship, birth control, and First Amendment law. Many of the free speech rights we enjoy today can be traced to Ernst’s activism.
Another thing that was interesting about Ernst was that he contributed to his own self destruction. In his later life when he fell out of the spotlight, when he wasn’t at his peak, he started doing questionable things just to get attention. He got involved with J. Edgar Hoover and anticommunism and at one point he represented a South American dictator, which shocked his ACLU colleagues.
What would you say is most notable about Morris Ernst?
His work is still relevant. Even though Ernst was best known for his work on literary censorship, he worked on many different progressive causes, including civil rights. He was involved with the NAACP. He started the National Lawyers Guild, an organization for progressive lawyers that still exists. He advised President Roosevelt on aspects of the New Deal. His influence was profound. He was at the beginning of debates around progressive social issues that still exist today.
(1 ) NY Review of Books
The Rise and Fall of Morris Ernst: Free Speech Renegade by Samantha Barbas
Forthcoming Spring 2021, University of Chicago Press
In the 1930s and 40s, Morris Ernst was one of the best-known liberal lawyers in the country. An eminent attorney in private practice, an early leader of the American Civil Liberties Union and its general counsel for over twenty-five years, Ernst was renowned for his work in free speech, especially the fight against literary and artistic censorship. With his trademark bravado, Ernst came to the defense of films and novels considered risqué, including James Joyce’s Ulysses. In the decades before World War II, no one did more than Ernst to extend legal protections to literature, art, theater, and movies.
Censorship was only one of Ernst’s causes. Ernst was among the most prominent liberal activists of his era, at the forefront of countless initiatives, including the labor movement and civil rights. As lawyer for Margaret Sanger, Ernst litigated groundbreaking reproductive rights cases. Ernst was a confidante of Roosevelt and advised the New Deal. In the late 1930s, Ernst’s career took an unexpected turn when he became one of the most vocal anticommunists on the left, and an ally of J. Edgar Hoover and promoter and defender of the FBI. This biography tells the story of the rise and fall of this dynamic, complex man, a key figure in the ACLU who transformed free speech and was at the center of some of the era’s most significant civil liberties causes – and ultimately went on to damage the cause of civil liberties.
Cecilia Meyer is from Rochester, NY and is in her third year at the University at Buffalo School of Law. Before coming to law school, she earned her B.A. in Chemistry at the University at Buffalo. Ms. Meyer is also a Publications Editor for the Buffalo Law Review and student ambassador for the law school. Her legal interests include family law and general practice.
Samantha Barbas, PhD, JD, is the Director of the Baldy Center for Law & Social Policy and Professor of Law at the University at Buffalo School of Law. Barbas holds a Ph.D. in U.S. history from the University of California, Berkeley, and a J.D. from Stanford Law School. Barbas is the author of several books and her sixth book about ACLU lawyer Morris Ernst is forthcoming in spring 2021 from the University of Chicago Press. Learn more.