Testing the Limits of Free Speech
March 6, 2009
By Anthony Kaufman
To attorney Martin Garbus, there's nothing complicated about the
importance of the First Amendment.
"Without free speech," he says, "you don't have a free society."
Garbus, who has helped forge his reputation by waging high-profile
First Amendment fights, makes that pronouncement in "Shouting Fire:
Stories from the Edge of Free Speech," a new documentary that had its
premiere in January at this year's Sundance Film Festival.
Garbus's daughter Liz Garbus directed "Shouting Fire," which, as it
happens, debuted just a couple of days after the Sundance screening
of another work by the children of a second legal legend. That film,
"William Kunstler: Disturbing the Universe," looks at the life of the
late litigator and his controversial cases through the eyes of his
daughters, Sarah and Emily Kunstler.
While the similarities in the two lawyers' careers may be confined to
their shared dedication to constitutional and civil rights
issues--though they crossed paths in 1990 when Garbus defended
Kunstler against libel charges filed by New York City subway gunman
Bernhard Goetz--the near-simultaneous premieres of the films offer a
natural chance to reflect on both men's work, the state of civil
liberties in America today, and the ways in which a new generation is
trying to carry on their fathers' work.
In Liz Garbus's case, she always thought she would follow her
father's path and practice some kind of public interest law. She says
she quickly became disillusioned, though, by how "difficult it was to
break through barriers." She decided she'd be better able to do that
by working as a filmmaker.
"It felt like a more fulfilling way of interacting with people who
were involved in social movements that I cared about," says the
Oscar-nominated director whose previous documentaries include "The
Farm: Angola USA" and "The Execution of Wanda Jean."
To her father, who began practicing law as the country's Civil Rights
movement was heating up in the early 1960s, her switch to filmmaking
"We had great hopes that you could achieve a lot in the courts," he
says. "Now, as the law becomes less effective in defending certain
issues, I feel it's through communications that you're going to
affect people. To the extent that Lizzy is trying to do in film what
I did in the courts, she's where it's at."
Still, it was in the legal arena where Liz Garbus found her
inspiration for "Shouting Fire"--specifically in two of her father's
more recent cases. One involved talk-radio shock jock Don Imus's
wrongful termination suit against CBS; the other, the battle over a
Connecticut high school's decision to cancel production of a
student-written play about the Iraq war.
"These were just clear examples of restrictions on free speech," Liz
Garbus says. "Whether liberals not being able to talk about their
antiwar sentiments or somebody with offensive views being pushed off
the air." Though the cases are not discussed in the documentary,
"Shouting Fire" probes several similar instances of complex free
speech cases, ranging from those on the left (the firing of
controversial University of Colorado professor Ward Churchill) to the
right (the expulsion of a student who wore a T-shirt that proclaimed,
"Homosexuality is Shameful" by a suburban San Diego high school).
The film also addresses Martin Garbus's involvement with an unpopular
freedom of speech case: In 1977, he spoke on behalf of a U.S.
neo-Nazi group's right to march in the predominantly Jewish
neighborhood of Skokie, Illinois. "The kinds of people I have
represented are the people who test their constitutional rights," he
tells The Am Law Daily. "Most of the time, I'm sympathetic to their
expression. Sometimes I'm not."
By focusing on such uncomfortable cases--those that test the limits
of free speech--"Shouting Fire" ultimately stands by Martin Garbus's
dispassionate notion that "words are words are words, and they don't
have any particular meaning except what you attach to them," he says.
"The first amendment is neutral."
But Garbus is concerned that we are living in a time--post
9/11--where "it's impermissible to be neutral," he says, and that
this lack of neutrality "allows us to attack anything." Garbus
doesn't appreciate the conservative hold on the Supreme Court and the
U.S. circuit courts, either ("13 out of the 14 are conservative," he
says, "so I think you're going to see increasing restrictions on
first amendment rights.")
If Garbus is known for protecting the rights of citizens to speak and
write what's on their minds, without government or corporate
interference, William Kunstler has represented some of the most
contentious, vilified and despised accused throughout U.S. history,
from the 1968 Chicago Seven protesters or the inmates of Attica to
the alleged Central Park jogger rapists and El Sayyid A. Nosair, who
was cleared of charges of assassinating Rabbi Meir Kahane in 1991.
Despised and vilified himself, Kunstler's commitment to his clients'
rights sometimes, especially later in his career, reached such
extremes that they shocked both colleagues and family. As Alan
Dershowitz says early in "Disturbing the Universe," "It's very hard
to look Bill Kunstler's daughter in the eye and say that I thought he
was a hypocrite, but I do think he sometimes acted inconsistently
with the principles that he stated and articulated."
Sarah Kunstler, who works as both a media activist and a lawyer with
civil rights attorney Elizabeth Fink, found the Nosair case
particularly difficult, because, she says, "We were taught to believe
in courage and justice and to fight racism and to risk everything for
your beliefs. But this time, we didn't understand the just cause."
Striving to reconcile their father's complex impulses--was it for
fame or justice that he took on some of his cases?--Sarah says the
film attempts to deal with their father's lack of consistency. "We
were looking for a unified theory, as we say in the film," says
Sarah. "Dershowitz's comments hit on something we were looking for."
Though Sarah and Emily Kunstler were just teenagers when their father
died in 1995, the film offers a remarkably even-handed account of his
work and life. "We wanted to tell a story about someone who wasn't a
perfect person," says Sarah. "We never set out for the film to be
redemptive of him or change people's view of him. We also give
permission to be critical and speak critically of him."
The film traces the rise of Kunstler, starting with his flamboyant
Chicago Seven defense, catapulting the former tax attorney to
activist fame, through the crushing defeat of Attica, his rebirth at
Wounded Knee, and finally, his later years, filled with an assortment
of unpopular defendants, ranging from John Gotti to Nosair.
"When he represented Nosair, we didn't understand it," agrees Michael
Ratner, president of the Center for Constitutional Rights, which
Kunstler cofounded in 1966. But Ratner defends Kunstler's move away
from civil rights cases to the 'worst of the worst' as a sensible
anticipation of the country's post-9/11 crackdown on civil rights. "I
think he saw it that way," says Emily. "The same tactics that were
used against his clients in the Civil Rights struggle in the South
were used against his Arab clients accused of terrorism in the late '90s."
When the CCR was deciding whether to take on the Guantanamo detainees
as clients, Ratner says they took a valuable lesson from Kunstler.
"Some rights are so fundamental that when they start stripping them,
you may have to defend the people that are pariahs, not only because
they deserve a defense, but even more so from our point of view, to
get at constitutional issues that underlie our democracy. So Bill's
evolution," he explains, "was before ours."
Today, constitutional lawyers such as Ratner and Garbus remain
worried about American civil liberties. "Broadly stated, the first
amendment is not being treated robustly right now by the courts," says Ratner.
With recent trends towards wider surveillance laws ("I think the word
surveillance has lost its meaning for people," says Garbus), and less
church-and-state separation ("there are major setbacks," he says),
just to name a few issues, "The courts are going the other way,"
Garbus admits. "I do think first amendment lawyers are going to be
busier for the next 4 to 8 years."
("Shouting Fire" is tentatively slated for HBO broadcast in July;
"Disturbing the Universe" will open in theaters this fall, followed
by PBS airing next year.)
Anthony Kaufman writes about film for the Wall Street Journal, the
Village Voice, and indieWire.