The Baldy Center Podcast

The Baldy Center for Law and Social Policy
Podcast Season 3, Episode 18
Podcast recording date: July 15, 2021
Host-producer: Edgar Girtain
Speaker: Samantha Barbas
Contact information: baldycenter@buffalo.edu

Podcast transcript begins.

Edgar: Hello and thank you for listening in to the Baldy Center for Law and Social Policy podcast produced by the University at Buffalo. I'm your host Edgar Girtain. Today we'll be speaking with Samantha Barbas, professor at the University at Buffalo School of Law and director of the Baldy Center.

Professor Barbas' research is focused on first amendment law, American legal history, privacy law, and mass communications law, and her recent research has explored the history of censorship, privacy, and defamation. She holds a Ph.D. in U.S. history from UC Berkeley and a JD from Stanford Law School. She was previously professor of history at Chapman University, a visiting professor of history at UC Berkeley, and a lecturer at Arizona State. She clerked for Judge Richard Clifton on the ninth circuit court of appeals in Honolulu. Professor Barbas is also the author of six books, which have been reviewed in the New York Times and the Wall Street Journal, and in 2020 she received a National Endowment for the Humanities Public Scholar award for her book on progress on the supreme court first amendment case New York Times versus Sullivan.

Today we spoke about her most recent book The Rise and Fall of Morris Ernst, Free Speech Renegade, which is available now through the University of Chicago Press.

Thank you so much for being here today and thank you for taking the time. I'm very thrilled to, like, actually meet you and have a conversation, and I'm really looking forward to hearing more about your book and learning more about Morris Ernst, because in the reading that I've been doing he seems like a very, very interesting man. How did you get started on this?

Samantha: I got interested in Morris Ernst because I had studied history of first amendment law and I noticed that Morris Ernst’s name was, like, on every case and every brief that was ever seemingly ever filed in the period that I studied and I really wanted to know more about this guy. So, I began researching and it turns out that Morris Ernst left all of his personal papers to the University of Texas. That trove consisted of 600 archival boxes, which is really a lot of material, and so there was a logistical challenge of really trying to just process all of this material.

Edgar: And you did that.

Samantha: I did that. I mean, the material was in boxes of course, and it was indexed, which is very helpful, but you know I had to go through. I looked at every page and, you know, read everything to try to kind of condense it into this book. So, this is the first biography of Morris Ernst, and often when there is not a biography about a public figure, it is because there's too little material and there's just not enough source material to build a story. But in this case, I think there was actually too much material and there had been a few biographers who had tried in the past but had to give up. And I heard, anecdotally, that it was because they just couldn't make sense of it. It was just too much. He wrote too much, he was involved in too many things, there are too many cases. So, it was certainly a feat to have to go through and figure out what to include and you know.

Edgar: So, would you call your book a biography or a legal book?

Samantha: Oh it's definitely a biography. It's-it's chronological, you know, starts in his childhood and goes right up to his death.

Edgar: So who is Morris Ernst?

Samantha: Well Morris Ernst was a celebrity lawyer, you might call him, of the 1930s and 40s. Not that he represented celebrities, but he himself was a celebrity. He was the kind of guy that you know today we'd see on CNN, sort of a talking head on legal issues. He was a lawyer in private practice. He had a very successful commercial law practice in New York. But he was best known for being co-general counsel of the American Civil Liberties Union and he did that work between the late 1920s and the 1950s, so his main focus on the ACLU was the fight for freedom of speech.

In particular, he fought against literary censorship, which is something that was widely practiced at the time. So, Morris Ernest would do things like represent authors whose books had been banned on the grounds of obscenity. He would represent filmmakers and authors of, you know, so-called risqué, you know, novels and so forth. And he was very important in this regard. I think there was probably no person in America in this time who did more to fight against censorship and to fight for freedom of speech than Morris Ernst.

Edgar: So, he also was involved in other kinds of litigation. What drove him to get involved with the ACLU and working with that kind of topic?

Samantha: So, the ACLU was founded in the World War One era, 1918-1919, and the point of that organization initially was to fight against government suppression of political dissenters, which was fairly fierce during the war years. People would be prosecuted under the sedition act for making a comment that was critical of the war or the government. So the founder of the ACLU was a guy called Roger Baldwin, and he really ran the whole show with this organization. Roger Baldwin and Morris Ernst kind of ran together in these New York liberal reform circles. And so, Baldwin asked Ernst, ‘well would you give me legal advice,’ Ernst was already a practicing lawyer by this time. And so Ernst was kind of drawn in by personal connection, but he found himself very captivated by the free speech issues that the ACLU was pursuing.

Edgar: So, what are some of his main cases? You mentioned that he was involved with the book Ulysses.

Samantha: Yeah, so, in the field of literary censorship, and that's again the field in which Ernst is most famous, he defended a number of authors of books that had been condemned as obscene. The most famous book being Ulysses by James Joyce and he took up this book to defend in 1931. I can give you the whole story of the Ulysses case if you want.

Edgar: Yeah, what's obscene about Ulysses?

Samantha: So according to the government there were 65 passages at least, might have been more, in Ulysses that were obscene and you have to understand the definition, the legal definition, of obscenity at this time. Something could be declared obscene if it had the tendency or potential to corrupt society's most vulnerable members i.e children. So, if something could put the wrong idea in the mind of a child - a sexual idea or some other kind of subversive idea - then the work could be condemned as obscene.

So what was obscene about Ulysses? I mean, just about everything, right? The novel is filled with discussions of sex, uh, you know, some which are quite overt. I think there was a lot of foul language, four-letter words and so forth, and all of those were, um, bases for condemning the book as obscene.

Edgar: And so how did he get involved in the case?

Samantha: Morris Ernst had started his work in the literary censorship field in the late 1920s. He had developed quite a reputation by the early 30s and had a lot of connections in the book publishing field, and he was really the expert in this area. And in 1931, he said, you know, the most famous book out there that is still banned under United States obscenity law is Ulysses. And so it's going to be kind of, you know, a show of his great skill and mastery of the field. He was actually going to get Ulysses cleared. Get the ban removed.

So, Morris Ernst called up his friend Bennett Cerf, who was the publisher of Random House Publishing Company, and said, “Let's make a deal. You work with me and we'll get Ulysses cleared in the courts and then you, Random House, you can go ahead and publish the book.” So, they made a deal under which Ernst would not get paid anything for his legal work, but Random House would give him five percent of the royalties from Ulysses when the book was published, and this was consummated and Ernst made a lot of money off the publication.

Edgar: I'm curious why there was an issue against it in the first place. Did people really think that children would be reading Ulysses?

Samantha: Yeah, that's a great question. So, the standard of obscenity that I mentioned was created in the 19th century, sort of like a puritanical worldview, right, where people were very afraid of anything sexual. It was generally acknowledged by the 1920s that, you know, this was not in touch with reality, it was hyper protective, moreover it was absurd that children would come into contact with most of these purportedly obscene literary works. I think the original intent was not just to protect children, they wanted to shield women, I think, you know, from getting any kind of sexual notion or anything that would cause them to contest their position in society.

So, these antiquated laws, though, they were still on the books in the 30s. They were still being enforced, and that became one of Ernst's arguments, that these laws are outdated. It was absurd. Who was going to read Ulysses as a child? Is anybody even going to understand Ulysses, right? I mean, who's going to be corrupted by it if you can't even understand it.

Edgar: The book is titled The Rise and Fall of Morris Ernst. How did he fall?

Samantha: Morris Ernst was kind of at the peak of his powers in the 1930s and he began to fall from grace, that is, many of the supporters that he had began to turn on him when he became a fierce anti-communist. And, in the 1930s, the communist party had a rather significant presence in the United States, and this must be viewed against the context of the Great Depression, right? The communists were actually responding to the conditions of the depression - the poverty, the unemployment - with concrete action. They were organizing unions, they were, you know, creating bread lines, they were giving out charity. Plus, the ideology of communism held a great deal of appeal to discontented Americans at the time. So, many who had been on the left were becoming involved with the communist party and many of the groups that Ernst was involved with, such as the ACLU, National Lawyers Guild, and other liberal organizations, had communist affiliated members in the group, and this really began to bother Ernst.

He didn't like communism on ideological grounds, he felt that it was impossible to stand for civil liberties and still support the Soviet Union, thought that was hypocritical. He also didn't like the fact that he felt his leadership of these groups was being challenged by, you know, various, um, communist affiliated individuals and he felt personally threatened. So, at any rate, he becomes, in his words, uh, the number one red baiter of the left. You know, somebody who is really aggressively trying to push communists out of organizations and this made him unpopular.

Edgar: What drew you to him today? You know, like - what interest is there for someone today, or what parallels are there between today's society and the society of America in the 1930s or 40s?

Samantha: I mean, there are tremendous similarities and I think those similarities have become even clearer, you know, in the past year or so. Public dissatisfaction with the state of economic affairs, you know, widening gaps between wealthy and the poor. Free speech has really surged as a public issue in you know the past couple of years with debates over educational content and debates over hate speech very much in the news lately. Those issues are just cresting in Morris Ernst’s time.

I think, in fact, all of the issues that he held dear and that he dealt with have somehow emerged on the public stage. Not only free speech but also birth control - he was very involved in Margaret Sanger's birth control crusade in that time. The rights of labor is another issue of his.

Edgar: Who were his predecessors? What kind of public figures were there in American life before him that have taken up similar causes or worked on similar issues?

Samantha: You know, freedom of speech really did not emerge as a large-scale public issue in the U.S. until his time. So I can't think of an analogous public figure free speech lawyer before Morris Ernst. And the ACLU was really responsible, in large part, for putting that issue on the public stage. So, I mean, there were progressive lawyers like Louis Brandeis, the supreme court justice. He had been an activist lawyer in probably the generation prior to Ernst. He was working on behalf of causes like breaking up monopolies and, you know, fighting for welfare rights or workers. And, in fact, some of Morris Ernst’s fans actually likened him to Brandeis, which Ernst took us quite a compliment. But really, Ernst was the beginning of, you know, the liberal civil liberties lawyer as public figure and icon, which, you know, has progressed since that time.

Edgar: Do you think he is a classic kind of figure that identifies with a particular school of thought? Or is he the kind of person who is a one-of-a-kind product of his time?

Samantha: He's very much a product of his time, and his background. You say a school of thought, I think there are many who ascribe to that today, which is kind of a viewpoint neutral on perspective on free speech. All perspectives should be aired in the public sphere, in the marketplace of ideas, and that's the way to build strong democracy. It's a way to build up the strength and tolerance of individuals, to hear diverse views, to be forced to debate views, right, to learn skills of critical thinking and reasoning. Again, you know, the kind of marketplace of ideas ideal - that was new in Ernst’s time.

Edgar: Yeah and we see how that works today with all the anti-vaxxers.

Samantha: Yeah, I mean, of course. The whole thing has really come under question with social media. Is it really true that a robust marketplace of ideas is the best way to promote democracy?

Edgar: What do you think?

Samantha: What do I think? I believe very much in Ernst’s position. I think it’s absolutely wrong to try to cut off unpopular views or to diminish them on the grounds that they might cause people to be upset or uncomfortable. I mean, we do have to draw lines, you know, when speech is violent or when it actually incites violence, but I do believe in the virtues of a very broad marketplace of thought.

Edgar: So, how did Ernst get involved with J Edgar Hoover and the FBI?

Samantha: Yeah, so, as mentioned, Ernst took on anti-communism as his main cause in the late 1930s. And in fact, he really stopped working on civil liberties cases around that time. He became so obsessed with anti-communism. And so, this brought him into connection with J Edgar Hoover, who was the FBI director, and of course was running some very nefarious campaigns against, uh, you know, suspected communists and other so-called subversives. For whatever reason, Ernst believed Hoover's line that the FBI was a really progressive and respectful law enforcement organization that we know today is not true, but that wasn't widely known at the time, and so Ernst came to believe that Hoover was the great anti-communist champion and that the FBI must be defended against any attacks.

If anyone said anything bad about the FBI, Ernst would, you know, rush to criticize them and rush to publicize what he thought were the true facts about the great FBI.

Edgar: Yeah. Well, I guess at the time, there was certainly less public information available and media was much more tightly controlled, so there would be fewer ways to know - for the public to know about any controversies within the FBI or any problems there. To what extent do you think he was aware, or not aware, of what was happening within the FBI?

Samantha: Yeah, that's a really good question. I think that he didn't know the full extent. What he did know, he managed to justify, uh, mentally in terms of ‘this is necessary to combat the communist menace.’

Edgar: And why was he so anti-communist?

Samantha: I think he was very much opposed to, as I said, the hypocrisy of liberals who professed to be civil libertarians yet could not go out and criticize the things that were happening in the Soviet Union time. I think that he also, again, had personal quibbles with some communist party members. Ernst was a very egotistical guy. He was very fragile. He didn't like to be challenged, he always wanted to be on top. So, if he found anyone who was questioning his authority or trying to rival him, this made him infuriated. And so, I think the communists had pushed the wrong buttons, to be blunt, and he retaliated.

Edgar: Fascinating. What are a few key points you'd like readers and listeners to take away from your study of Morris Ernst's life?

Samantha: I think there are so many different and interesting causes that Ernst worked on and that's one thing I'd like readers to take away from the book, it's just the sheer breadth of activity that he was involved in. Ernst was an advisor to the NAACP for a while, he worked on civil rights issues, he was general counsel for Margaret Sanger's American Birth Control League and litigated a number of important cases that basically legalized contraception, which is a tremendous development. He was an advisor to president Roosevelt; he was on president Truman's civil rights commission in addition to all of the free speech stuff that he did. The period between 1930 and the early 1950s when Ernst was most active really saw a revolution in free speech. There was no free speech law in America prior to the 1930s to speak of. The supreme court had not even addressed this issue there was no body of law. And in part, because of Ernst's work, there is a fairly liberal free speech jurisprudence by the 1950s. The censorship, you know, the book censorship, the film censorship, that had been so rampant in the 20s was almost gone by the end of Ernst's career. So, quite a bit that he did.

Edgar: That's amazing. I read that he was also involved with the Glass-Steagall Act, drafting that, right? So, he did a really wide variety of things. Can you tell us about his contributions there?

Samantha: Well, I don't remember exactly how he was involved, but, that could be folded into part of his, you know, broader contributions to the New Deal. So, that was the banking reform act that was at the beginning of, uh, New Deal era and Morris Ernst, for a while, really saw that as his main contribution. I think he was wrong about many things in his own life. He believed that the most important thing he did was to fight for FDR's New Deal reforms and to, you know, help defend the New Deal from its many critics, but that, in history's view, really wasn't his most important cause. But Ernst worked as kind of a policy advisor for Roosevelt on banking issues, economic issues, labor issues, had connections with all of the big figures in the New Deal policy circles in Washington, and did play a role in economic reforms at that time.

Edgar: Professor Barbas, thank you very much for sharing your time with us today and telling us about your new book, The Rise and Fall of Morris Ernst, Free Speech Renegade, which is available now in paper and digital formats through the University of Chicago Press. Hopefully we'll have you back on the podcast sometime soon.

Samantha: Absolutely. Thanks so much.

Edgar: That was Samantha Barbas, and this has been the Baldy Center for Law and Social Policy podcast, produced by the University at Buffalo. Let us know what you thought about this conversation on our Twitter, @baldycenter. You can also learn more about the center on our website buffalo.edu/baldycenter. The theme music for this season was composed by University at Buffalo composer Matias Homar. My name is Edgar Girtain, and thank you very much for listening in. Until next time.