Fight of the Century

by Michael Chabon

  So where does this all leave us?

  Probably in the streets of Charlottesville, Virginia, with hundreds of self-evidently silly and stupid white men and boys bearing Walmart torches and chanting about “Jews not replacing us.” The right of the Unite the Right rally to take place had been supported, in line with Brandenburg and Skokie and Hess and NAACP v. Claiborne Hardware, by the Virginia chapter of the ACLU.

  The argument that the horrific violence that took place that day—including a group of white supremacists savagely beating and stomping on a black man named DeAndre Harris as he lay splayed out on the ground of a parking garage, and one white supremacist, from Ohio, ramming his car into a crowd of leftist counterprotesters and murdering Heather Heyer—had far more to do with failures on the part of law enforcement than with any sort of speech that day is, to my mind, a basically sound one. Still, it bears mentioning that after what happened in Charlottesville, the ACLU did draw up a list of guidelines for case selection that, while decidedly not repudiating the Virginia ACLU’s decision to defend the white supremacist rally’s right to take place, did foreground the tension inherent in defending such speech and clarified that the ACLU will “generally not represent protestors who seek to march while armed.”

  * * *

  A few months after the rally in Charlottesville, my wife and I moved back to southwest Ohio. A few months after that, our daughter was born here: tiny, curious, adventurous, brilliant, Jewish.

  Our town, Yellow Springs, still feels imbued with Antioch College’s progressive spirit and the legacy left by Eleanor Holmes Norton and other activists since. But there are Confederate flags flying in the rural stretches around us, and I’ve read article after article about white supremacists (around my age) living in the area: the Hitler-admiring white nationalist from Huber Heights; the founder of the Daily Stormer website, whose main pages include “Race War” and “Jewish Problem,” based near Columbus. While Jews are not at the very top of American white supremacists’ list of bloodlust, these questions, questions of speech and threat and assembly and safety, do not feel purely academic or theoretical to me. There is no flippancy or cavalier intellectualization in my fingertips as I write, here in southwest Ohio, my tiny Jewish daughter napping in the other room, that even after Charlottesville, I think that Eleanor Holmes Norton and Allen Brown and the ACLU were right in their defense of Clarence Brandenburg.

  Because in truth, the ideologies of Brandenburg and the tiki torchers are not as divergent from the core ideologies of the American political regime as many think they are. In truth, throughout American history, government suppression of speech and expression has been far more frequently and viciously directed against leftists and radicals, against black militants and Jewish communists, than it has against the various Brandenburgs of this nation. In that light, the Brandenburg case appears as a form of aikido, in which Norton, Brown, and the ACLU harnessed the force of American white supremacism itself as a means of ultimately defending those who would seek to undermine American white supremacism and its American cousins: bigotry, xenophobia, imperialism, and bellicosity. In other words, in challenging the government’s right to punish Brandenburg for saying heinous things, a counterintuitive but profound sliver of freedom was wrested from this deeply unfree country.

  And for that, here in southwest Ohio, I am grateful.

  COHEN V. CALIFORNIA (1971)

  The Supreme Court considered this case “at first blush too inconsequential to find its way into [its] books, but… of no small constitutional significance”: a prosecution under California Penal Code 415 that prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person… by… offensive conduct.” The “offensive conduct” at issue was an antiwar protester’s decision to wear a jacket emblazoned with “Fuck the Draft” in a corridor of the Los Angeles courthouse. Writing as amicus, the ACLU urged the Supreme Court to reverse the California courts’ affirmation of Cohen’s conviction on First Amendment freedom of speech grounds. In a 5–4 decision, the Court agreed, holding that the state may not make the “simple public display” of a “single four-letter expletive” a criminal offense.

  Disturbing the War

  JONATHAN LETHEM

  In May 1968 Robert Cohen walked into a courthouse in Los Angeles wearing a jacket with “Fuck the Draft” stenciled on the back, in order to testify on behalf of a friend. By the time he entered the courtroom, he’d folded the jacket into his lap, but a policeman had noticed him wearing it in the corridor and become incensed. After trying and failing to get the judge to hold Cohen in contempt of court, the irate cop put the nab on him personally. The charge, ironically, was “disturbing the peace.” (I suppose we still await a statue called “Disturbing the War.”) After an initial conviction, the judgment was overturned in appellate court on the beautiful grounds that Cohen’s behavior had been, yes, “offensive” but not “tumultuous”—that is, had incited no other person to a violent response—and that both conditions need to be present to meet the statute’s standard for peace disturbance. The state appealed back and won. Cohen’s attorneys appealed. Cohen’s case reached the Supreme Court three years later.

  * * *

  This case beckoned to me in a few different ways. Truthfully, it seemed like it had my name on it. The spring of 1971 was a fateful one in the relation of my family’s life to what was, at the time, an ongoing condition, on my parents’ part, of protest of the Vietnam War. My mother was arrested, along with many hundreds of others, during the May Day protest, for occupying the steps of the US Capitol. She was in the early stages of pregnancy with my sister at the time. In the jailhouse to which she and her friends were bused, they were crowded into tiny cells and spent their time incarcerated without food and water (they also protested the conditions of their incarceration by taking what small food they were finally offered, bologna sandwiches, and removing the filler and smacking it up to stick on the wall of the cell: meat graffiti). Eventually an ACLU lawyer attained a settlement from the federal government for wrongful arrest, establishing that the space of the Capitol steps was a public commons from which the protesters had been unjustly removed. Growing up, I was always told that the money from this settlement, though it was just a few thousand dollars, had formed the basis of the fund for sending me off to college. The judgment in favor of my mother and her co-arrestees seems to form a little rhyme with that in favor of Cohen’s Fuck the Draft jacket.

  * * *

  I was also, as a kid, a little free speech absolutist and a pottymouth. So was my mother. It would have been right around 1971, when I was seven, that she’d given me a little lecture I distinctly recall (likely it was given several times) about how the sorts of words that our family sometimes used inside the house weren’t appropriate for me to repeat at school. This went together with an injunction not to repeat, outside the safe company of a few sympathetic souls, the scalding mockery our parents and their friends applied to the Nixon presidency—he’s a schmuck, he’s a vampire, he’s obviously compensating for a lifetime of sexual frustration, probably just needs a good fuck—word-for-word in front of my teachers or other adults I didn’t know.

  Now—of course—I wasn’t really going to speak these things back to my mother. So I was being instructed to listen to things I couldn’t make use of myself for the time being. They were allowed to sink into my expressive lexicon to be retrieved for use at some unknown juncture, according to some as-yet-unspecified future necessity.

  And yet, that word, fuck—that I also heard with regularity in another place, on the city streets. Kids on the pavement used it as an unfriendly but pungent synonym for the phrases “what are” or “what do” as in the formulations “Fuck you looking at?” and “Fuck you think you’re doing walking away when I’m talking to you?”

  And I read it in books, like Erica Jong’s Fear of Flying, which I soon snuck off my mother’s shelves. The Zipless Fuck.

  And Henry Miller.

  And then th
ere was the strange case of Norman Mailer’s The Naked and the Dead, where everywhere the word fug had been substituted—pretty obviously, it seemed. Were soldiers really so discreet?

  And the band, the Fugs, who’d taken their name from Mailer’s weird euphemism. My mother was pals with one of them, Tuli Kupferberg. And the Fugs had tried to levitate the Pentagon at an antiwar protest in 1967—the same one Mailer wrote about in The Armies of the Night.

  And the banned books that had been freed, heroically: Nabokov & Co. obscenity trials, Howl, the Grove Press, the pulping of J. G. Ballard’s The Atrocity Exhibition. All of this was part of the cultural world that most thrilled me, and by the time I went to college, I knew, for instance, who Charles Rembar was and had read his book about defending Lady Chatterley’s Lover, Tropic of Cancer, and Fanny Hill before the Supreme Court—a book featuring an introduction by Rembar’s cousin, Norman Mailer.

  Much later, I was allowed to play my tiny part in the public life of “fuck” by a quirk of fate. The New York Times chose to excerpt the first sentence from a number of new novels for a promotional feature. I was included, but the first sentence of my book was, “Quit fucking black cops or get booted from the Communist Party.” An exception was granted, by unseen powers, to the newspaper’s legendarily prudish boycott on that word. There followed a brief stir as I became the occasion of the Times’s first publication of the word fucking in its pages.

  I guess I’d found my juncture.

  All this, but I’d never heard of Robert Cohen and his unruly jacket. It had been waiting until now to find me.

  * * *

  The Supreme Court ruled in favor of Cohen’s freedom to wear the jacket—narrowly, in a 5–4 split. Cohen was represented by the wonderfully named Melville Nimmer, the State of California by Michael Sauer. Justice John Marshall Harlan II wrote the opinion. He cleared space for defending the utterance by judging fuck, in this instance at least, as not an “erotic” word—not therefore a matter of public obscenity yet not an incentive to fighting either: “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.” He then coined the memorable phrase, “One man’s vulgarity is another’s lyric,” which is nearly like a line Bob Dylan would have crossed out of an early draft of “Gates of Eden.”

  The dissent, written by Harry Blackmun, arched an eyebrow at Harlan’s second assertion. “Fuck,” in the case of the jacket, was an example of “conduct,” not defensible speech. “Fuck the Draft” was “fighting words.”

  * * *

  For what it’s worth, I like the word, and use it plenty, because I disagree with Harlan here. Fuck retains its aura because it is both imperishably erotic and a fighting word. Its magic capacity for oscillation between these signifying powers, as in my mother’s language realm and in the books on her shelves, describes its unusual value. Even as capitalism has tried to siphon off fuck’s aura through peekaboo appropriations like “Fuddruckers” and “Fcuk Jeans,” it holds true. Ask the hip-hop group N.W.A., for instance.

  * * *

  Cohen, who goes under another name now, recently spoke about his case: “I didn’t even see the wording on the jacket until the morning before I was headed to court to testify on behalf of an acquaintance. I was and am a patriotic person.”

  The famous jacket? It had been stenciled and given to him by a female friend, just the night before. “I had a PhD in partying back in those days. I wasn’t trying to make a political statement.”

  Well, fuck, man, you did anyway.

  NEW YORK TIMES CO. V. UNITED STATES (1971)

  New York Times Co. v. United States is a historic First Amendment safeguard of freedom of the press in the face of government censorship. In 1971, the New York Times and the Washington Post began publishing confidential documents known as the Pentagon Papers, which revealed that the government had lied to the public about the US role and intentions in the Vietnam War. The United States sought to enjoin the newspapers from publishing these documents, arguing that the president had the power to bar any publication that might injure the public interest. The ACLU submitted an amicus brief to the Supreme Court in which it argued for the critical importance of a free press to an informed public, especially in relation to a war that had so violently divided the country.

  The Court ruled in favor of the newspapers, holding that the government had not shown why a restraint on the publications was justified. In his concurrence, Justice Hugo Black wrote that the press must be protected precisely “so that it [can] bare the secrets of government and inform the people.” The case established a protection for the press in reporting on government conduct that has been critical in holding government accountable to the people.

  Secrets and Lies

  SALMAN RUSHDIE

  It is shocking, is it not, to those of us living, as we do, in a time of unimpeachable integrity in public life, to discover that there was a time when the government of the United States lied to its citizens, even about matters of life and death, and then went to extraordinary lengths to conceal the fact that it was lying?

  During the Vietnam War, the Johnson administration, without telling Congress or the American people, broadened the scope of the war to include the bombings of Laos and Cambodia, increased raids on North Vietnam, and much more. These went unreported in the press. In addition, while President Johnson publicly said that the purpose of US involvement was to protect South Vietnam, he and Secretary of Defense Robert McNamara agreed that the true purpose was to contain China, and they further agreed that this would take a long time, cost a great deal of money, and result in a large number of deaths of American soldiers. None of this was admitted publicly.

  The Report of the Office of the Secretary of Defense Vietnam Task Force, afterward known as the Pentagon Papers, contained this explosive information in enormous and irrefutable detail. Of the fifteen copies that were made, two were sent to the RAND Corporation, a global policy think tank, where a RAND employee named Daniel Ellsberg read it and knew, as he afterward said, that the report “demonstrated unconstitutional behavior by a succession of presidents, the violation of their oath and the violation of the oath of every one of their subordinates.” He photocopied the document and became determined to release it in an attempt to end the war.

  On June 13, 1971, the New York Times began publication of the documents. The paper was hit with an injunction to cease publication and appealed. The appeal moved quickly to the Supreme Court. On June 18, the Washington Post, which also received documents from Ellsberg, had begun to publish too. Judge Murray Gurfein of the US District Court declined the government’s request for an injunction, writing that “security… lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority to preserve the even greater values of freedom of expression and the right of the people to know.”

  Now that we have been told that this same press is in fact the “enemy of the people,” how innocently those lines read!

  This time the government appealed, and the two cases, against the New York Times and the Washington Post, were heard jointly by the Supreme Court. In an amicus brief, the ACLU stated that if the government’s vague test of “information detrimental to the national security” were to be accepted, there would be virtually no limit to censorship of the news then or in the future. And on June 30, 1971, by a 6–3 margin, the Supreme Court found for the newspapers and against the government: “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

  What an absurdly misguided decision!

  * * *

  But to drop the sarcasm, this opinion, by Justice Hugo Black, should be taught in every school and memorized by everyone who attains high
public office. It is a part of the bedrock of American democracy.

  When I look back at those days, one of my strongest memories is that we were by no means certain that the judgment would go as it did, just as we were not at all sure that, just two days earlier on June 28, 1971, the same court would exonerate the boxer Muhammad Ali. The great liberal-progressive victories of that time did not seem at all inevitable. It felt as if the future teetered on a knife edge.

  These victories were hard won. Both cases could easily have been lost, but because they were strongly, closely, even brilliantly argued, they were won, and we are the beneficiaries of those arguments, among them the arguments made by the ACLU.

  “To prevent any part of the government from deceiving the people.” I doubt that even during the Nixon presidency (during which the Pentagon Papers case was heard) anyone could have imagined the scale and frequency of the deceptions being wrought on the American people today.

  Attacks on the press by the president of the United States—on the “Failing New York Times,” and the “Amazon Washington Post” owned by “Jeff Bozo”—have become an almost daily occurrence, and so it’s vital to remember that these newspapers and many others have been, and remain, our best defenses against a capricious, deceitful, and overly mighty executive.

  Distrust of the news media had been growing before Trump, and he has done everything he can to feed that distrust. Not long ago, I was lecturing in Vero Beach, Florida, to an almost entirely Republican-voting audience. These folks did not conform at all to the cliché of the Trump voter. They were affluent, white collar, university educated, and read books. Yet they had all drunk the Kool-Aid and bought into the Trump worldview. One questioner demanded, with remarkable heat, “Do you really think the New York Times isn’t lying to us every day? Do you really believe that?” I tried to defuse the aggression by replying, “Well, yes, I do believe that, sir, except when it’s reviewing my books.”