THE OPEN MIND
Host: Richard D. Heffner
Guest: Nat Hentoff
Title: “Hentoff on First…And Everywhere”
I’m Richard Heffner, your host on THE OPEN MIND.
Although he and I had been knocking around in the same general community of ideas literally for decades, we didn’t get together on the air here until a few weeks ago, when I explained that I hadn’t invited my guest to The Open Mind earlier on only because his agile mind and incredible intellectual scope command such vast regions I could never figure out quite which of so many subjects to focus on with him. In fact, when finally we did sit together at this table, we ranged over so many issues I asked him to come back soonest so that I might pick up on at least one or two of them…not, surely, to any point of closure, but at least more to my satisfaction and I suspect yours, too.
Nat Hentoff thinks hard, then writes widely, wisely and well about any number of the most compelling topics of our times in any number of publications: The Village Voice, The Washington Post, The New Yorker, The Progressive, and on and on and on.
So that right off I want to ask Mr. Hentoff about a comment he made last time about his fellow scribblers: “We in the business of journalism, it seems to me”, he said, “one of our besetting sins is preset…you come into a standard story, most reporters do and most editors do, too, with a preset.”
New, Mr. Hentoff, isn’t that one heck of an indictment of the free press for which we struggle so to provide the protections of the First Amendment and expect in return at least the protections of fairness and balance?
Hentoff: Well, if you don’t come into any story, and this is true of anybody in everyday life, let alone reporters, if you don’t approach a story with a preset based on who you are, who your parents were, whom you’re married to, and who you used to be married to, all those conjuries of factors that give us our prejudices, which we call our opinions, or our certainties, then you’re not alive. What a reporter is supposed to do is to be aware of this preset, and then if the facts that he uncovers go against that, to change the preset. Recently, I saw a marvelous example of this, at my own paper. A young reporter, guy named Barry Cooper…Barry Michael Cooper…he’s black…his assignment was to look into those kids who allegedly raped and strangled and beat unmercifully that young woman in Central Park. He did, indeed, go around the neighborhood, talked to people, and he came back with facts that indicated, contrary to what was printed in the New York Times and most of the other places, that these were not good kids, that they had…that their parents certainly had tried hard to make them into good kids, but they were terrors in the neighborhood, and had been for a long time, particularly against some Hispanic people who lived across the street. I don’t think Cooper expected to find that. It was especially hard for him as a young black reporter to write what he found, but as he said to me, he said “I had no choice. I mean that’s what I’m supposed to do, is tell what the facts are.”
Heffner: Yeah, but Nat now you’re making what you called in our first program, a preset, into something that’s the product of research and digging, and that’s not what we’re talking about. It certainly wasn’t what you were talking about originally.
Hentoff: Oh, no, but…then I misspoke, because what I’m saying is that if you don’t go into a story with a preset then where have you been? I go into stories with them all the time. I had a preset, for example, that let us say Judge Bork was, for various reasons in my preset, because I’m…my idols are Brennan and Douglas, whom I think is vastly underrated these days, and Black, whom I disagreed with in many things, but…and I thought that Bork,, because of my preset, was really unfit to be on the court, and now that I see who his successor was, I wish I had thought more carefully when I wrote about Bork because, at last, although I do still think that Bork is essentially a majoritarian, which makes him less sensitive to individual rights and liberties than a Supreme Court Justice should be, at least he’s an independent thinker, and his successor, Justice Kennedy, is quite clearly not.
Heffner: Now, wait a minute…wait a minute. A lot of things, as usual…
Heffner: …crammed into one of…
Heffner: …the Hentoff paragraphs. Majoritarian. Are you saying the Hentoff is not a majoritarian?
Hentoff: No. good lord, I wouldn’t be such a heretic and I wouldn’t be so maligned, and receive death threats occasionally if I were. Much of the time I write against the tide, including the majoritarian, that is the majority views, prejudices, whatever of the community. I wrote against the invasion of Lebanon by Israel in 1982. Never received so many letters inviting me…showing me various ways to commit suicide expeditiously, on anything I’ve ever written. I am opposed to the…what’s going on now on college campuses around the country, I think it’s the most dangerous trend in the country. You’ve got at some of the prestige schools, University of Wisconsin, University of Michigan, the University of California at Berkeley, and various other places, because there have been, and indeed have been very ugly incidents of racist, sexist behavior on campus, the reaction to that is not more speech, more attempts to show people what all this leads to and where it came from, the reaction to that among Liberals, including faculty members, administrators, and the students themselves, with very few exceptions, is to set up a new set of rules that will punish speech, that will punish racist, sexist speech, which is wholly violative of both the letter and the spirit of the First Amendment, and more importantly, I mean potter Stewart, the late Supreme court Justice said that whenever you see censorship in a society, it shows that it has lost confidence in itself. Boy, isn’t’ that true now of the campuses?
Heffner: Yes, but you know, my wife accuses me of defining words and phrases and notions the way I want to. The way…
Hentoff: Humpty dumpty.
Heffner: Okay. Majoritarian.
Heffner: …you’re not anti-majoritarian?
Hentoff: In some respects you have to be.
Heffner: In some respects…
Hentoff: I mean James Madison made it very clear. I will paraphrase rather liberally here, he said at one point, I guess it was in 1789 or 1790, he said “You know, George the Third is no longer the enemy. We’ve beaten George the Third. The enemy is us. And the reason for the courts, and the reason for the Bill of Rights is that the majority is often wrong, and there has to be a place where the individual dissident,, the individual minority view is heard and strengthened and allowed to continue to say what he or she wants to.”
Heffner: But I’m sure that your definition of majority rule includes majority rule and minority rights, and that’s what you put together and I would think that…
Hentoff: But, but, but…but the majority often has no respect for, to say the least, minority rights, and that’s when you have to watch out. That’s when you have legislators, I mean the obvious being Joe McCarthy who, for a time, was riding a majority tide. I give you a less, less well-known example. There was a time, in the 1920s before the First Amendment was incorporated through the Fourteenth Amendment to apply to the individual states, it was just a Federal First Amendment then…there was a time when the majority was so afraid of the Red Scare, the I forget how many states, maybe seventeen, had statutes that said if you flew a flag that was red, that’s all it had to be, nothing on it, then you could go to jail, and people went to jail. That’s majoritarianism. Now that couldn’t happen, I hope, because the First Amendment would intervene.
Heffner: Yeah, you say “now that couldn’t happen.” You, just a moment ago…
Heffner: …were talking about a kind of majoritarianism that you find surfacing in the college campuses again.
Hentoff: Well, fortunately, the ACLU, with which I have various disagreements these days, has come alive on this issue in Michigan, and they’re filing a suit, a First Amendment suit against the administration of the University of Michigan which already has a set of rules and regulations that Madison would have found absolutely unrecognizable. And the ACLU, I hope, will start making some law about this.
Heffner: Now, the people who are protesting on the campus now…
Heffner: …they obviously remind you of the people who were protesting on the campuses in the 1960s.
Hentoff: Yeah…I mean I was pretty active in the ‘60s in my way. I was against the war, I was for civil rights, etc. and I think some very good things were happening then. I remember at the time though, Paul Goodman, who was a kind of mentor of mine, Paul was very depressed because he said, “This is all like amorphous emotion.” He said, “Where is the politics? Where is the political structure? Where is the sense of where they ought to go?” And he saw none of that, and he’s right. There was no legacy, no real political legacy that, to me, makes any sense. The other thing that was going on in the ‘60s, and I saw that first hand, was that people on the Left had no…there were exceptions, but by and large, had no patience, no respect for a view the didn’t agree with. I was speaking, I think, at Notre Dame, against the war, and also pointing, however, that it is wrong, it was wrong then, when the Ambassador from South Vietnam came over, to throw water on him, to prevent his speaking. I said, what we are is opposed to that. I mean we are a country that allows for free speech, right? The result was I was booed off the stage…I was booed off the stage, I just sat there, I couldn’t speak.
Heffner: You say “no political legacy” of that, though. It would seem again from the conditions you were describing about today, about recently, that there is a political legacy.
Hentoff: Well, the legacy…
Heffner: More of the same.
Hentoff: Yeah. The legacy that rides on e motion and calls it policy. So, what bothers me now is, and this sounds very old-timey, many of the faculty members now, the tenured faculty members, are products of the ‘60s, they were in the demonstrations. And that’s fine. I mean if you hadn’t been in the ‘60s, all my kids were in it, so how can I…and I was in it, so I can’t’ knock that. But you would…I would have hoped that by now they would realize that they have some kind of…if not a legacy, they have some kind of responsibility to the students that they now have to point out the consequences of suppressing speech, for example. About five years ago at the New Paltz campus, State University of New York, a professor of political science who was opposed to apartheid, as all the kids were…he invited one of the members of the South African delegation to the United Nations to come visit. He said, to the kids, he said, “better you should hear it first hand, than read about it. Hear what the guy has to say, maybe it will illuminate what’s going on there.” The guy from the South African delegation was not allowed to speak. He got on the campus, he was surrounded, big boos, all that stuff and finally, essentially, ran away. And at the time I knew a guy who was at the UN, a correspondent for one of the big chains in South Africa, and he was delighted to hear about this. He said, “Don’t you think I’m going to lead with this tonight?” because it showed the people in South Africa and the government that here are these people moralizing at us about how we don’t have freedoms, they won’t let our person speak. It was a good lesson, but nobody learned it.
Heffner: You know, when you were here last time, the other time, here…I marked it off, page eleven of our transcript…you said you met a Rabbi in Jerusalem…
Heffner: …David Harman, you never met him before, there was a brief respite between the discussions, I met him in the corridor, and he said, “Hentoff, I want you to tell me the most important development in the history of mankind.” And you said, “Due process.”
Hentoff: Due process. It’s the only one of the two times in my life I’ve had the right answer. Somebody asked years ago, who played clarinet with Earl Hines and I knew it was Omer Simeon. Those are the only two times.
Heffner: Yeah, the only trouble with that is that when…go on to a later page In our transcript, page thirteen, and we’re talking about things, and I was saying “Do you cheer this or hiss it?” and you said “I Think it’s terrible, I couldn’t stop it, I wouldn’t stop it, it’s a First Amendment right. Unfortunately, it’s a First Amendment right to violate due process in this way.”
Hentoff: What was I talking about?
Heffner: We were talking about my favorite subject, I don’t want to get into it again, cameras in the court. But, you were saying, we were talking about cameras in arraignments, and you were saying “terrible.”
Hentoff: I was wrong. I was wrong. You cannot violate due process. I mean…I am opposed to most of the balancing of the First Amendment that goes on. Some of it you can’t avoid, like free press, fair trial. I think if a reporter has confidential sources, and they are central to guilt or innocence and you can’t get them anywhere else, then I think that reporter has to testify to those sources. I’m a heretic on that. But otherwise you really can’t, you can’t violate…the camera in the courtroom thing…if, indeed, placing cameras in a courtroom would violate due process, and I think it does, for example when you talk about…I didn’t know this before until you mentioned it before we went on…if that includes arraignment before an indictment, there’s no business for the cameras to be in there. And I don’t think that’s a First Amendment right.
Heffner: Free press! Free press! What do you mean “there’s no right?” Come on Hentoff…
Hentoff: Hugh Black said, he’d like to think of himself as an absolutist on the First Amendment, he was against giving it to kids, but never mind…but he said if somebody comes into the Supreme Court conference room during deliberations, and yelled and screamed, he’d knock him out, he’d throw him out. I mean, sure, there are limits. Unfortunately, there are also some limits to the First Amendment. (laughter) But I don’t think…I don’t think…what I was talking about, if I remember, on that program was…I was appalled at the perp walk, and I don’t see how you can, how you can stop the cameras from doing that. The perp walk in this and other cities is some guy is arrested, he hasn’t been even arraigned yet, and he is seen either being pushed into the car, or coming out of the car to the place of arraignment or to the place where he’s going to stay the night, and he has his coat over his, his face and cameras try very hard to get under the coat. But that is prejudicial reporting. But I don’t’ see how you can stop that. I don’t see that as a due process thing really because it’s out in the open. In a courtroom, however, if you can, if you can seal the courtroom, by the way, I don’t think the courtroom should be sealed on juvenile proceedings, but I can see in certain cases you can’t. I think you can for arraignment.
Heffner: Okay, I’m glad to straighten it out that way because I didn’t think that that’s what you meant, and I wanted to…
Hentoff: I mean I…see…
Heffner: …see how you balanced those equities.
Hentoff:…there’s the tricky business of do you let print reporters in for arraignment? I think you have to. But in that respect I think there’s sufficiently qualitative difference between television cameras and print, so that the face gets shown around in a way that could, indeed, prejudice a trial.
Heffner: You know, it’s interesting because you were here last time when Harold Rothwax was here to tape the other show.
Heffner: Judge Rothwax said that he couldn’t find any principled rationale…
Heffner: …any principled reason for keeping cameras out when you let the scribblers in, but I think you’ve stated it very well…what the…there is a difference.
Hentoff: Yeah, it’s a tough one to conjugate, and I have to think about it some more, but I really would be opposed to…I mean the perp walk is bad enough, but then to also do it on arraignment. It’s, it’s just…it’s uncivilized. Or as my Farther would have said, “It’s un-Jewish.”
Heffner: (laughter) Listen, talking about uncivilized, un-Jewish…you…I note that your column is called, one of your columns, “Sweet Land of Liberty”…
Heffner: …and I was so impressed by that, that’s the Washington Post?
Hentoff: Yeah, right, right.
Heffner: You know when James MacGregor Burns was here last time and we were speaking about his “Crosswinds of Freedom”, I had been so taken with the fact that the very last page, the last paragraph of that is “Sweet Land of Liberty,” and he quotes from that. Do you think your sense of this as our “sweet land of liberty” is shared as much today as it was when you began your career?
Hentoff: Well, first of all,, the title of the column, I knew…I mean Meg Greenfield told me what I could do and what I couldn’t do, and the column was, and is, devoted entirely to the state of health of the Bill of Rights, the first ten amendments and the Fourteenth, and a few interstices therein. But essentially it’s about what happens to individual people going against their school principal, going against the local judge, going against the legislature, it’s an anti-majoritarian column. So, therefore, the title I chose for it was meant to be ironic.
Heffner: But you don’t carry it out that way, do you? Do you?
Hentoff: Oh, I try to get as many success stories as I can, if only to keep my own spirits up, but I’d say that the majority of them are. I like the stories when, like for example, the kids after the Hazelwood decision, which was one of the worst Supreme Court decisions in our time, that’s the one that said that a principal could censor any, any student expression that appeared to be, have the imprimatur of the school. Not only an official newspaper, but even a school play, or some political speech. After that, a bunch of kids out in Renton, Washington, high school kids, had studied, in one of their courses, they had a civics teacher who really taught civics, and they had studied the Tinker decision which gave students around the country, years ago, Abe Fortas wrote the majority opinion, very basic First Amendment rights, which Hazelwood cut into badly, but the kids said, “why can’t we, why can’t we construe a case that will give us those rights again, if we don’t have an official paper, we have an underground paper, and distribute it in the school.” They have prevailed through the Circuit Court, Federal Circuit Court, the case will not be appealed, and that is a story I took great joy in writing. That’s sweet land of liberty.
Heffner: Yes, but now, I don’t want to let myself off the hook, or you off the hook in this question of irony.
Heffner: Sweet land of liberty. You wouldn’t back away from sayi9ng the essence of your sense of this country is still that it is a sweet land of liberty?
Hentoff: That it should be, that it’s supposed to be, and that it can be. But, you know, we’ve gone through cycles. I’m old enough to remember watching the Army/McCarthy hearings with such fascination that I almost got fired…I was always late to work, and we came through that way. We came through in part because of Joe Welch, we came through largely because Joe McCarthy essentially committed suicide on television. I mean Roger Baldwin, who founded the ACLU, once said, “No civil liberties battle is ever won.” It always has to be renewed. In that sense, that resiliency gives me a great deal of hope, and sure if we don’t have that, if we don’t have sweet land of liberty, which to me means the bill of Rights and the Fourteenth Amendment, then we are going to be a totally transmogrified kind of nation, a terrible nation. But I don’t see that happening.
Heffner: Well, the distinction one can make between heritage and history…
Heffner: …our history is negative, negative, negative in so many areas…
Hentoff: But it keeps coming up again.
Heffner: But our heritage is still a heritage of ideas, of ideology that enables one to say, “I think”, without irony, “sweet land of liberty.”
Hentoff: Oh, sure. That’s one of the man things that infuriated me about Dukakis’ campaign. When George Bush, or rather the advertising men behind George Bush, pinned him with that phony flag salute business, what Dukakis should have done, and Susan Estrich, his campaign manager, a professor of law at Harvard, should have known this, was get some television time and tell the story, with clips, of what happened to those Jehovah’s Witnesses kids. First of all when they were thrown out of school and the Supreme Court, Felix Frankfurter leading the band, said it was okay because you had to salute the flag whether your religious beliefs allowed it or not, what happened after that, around the country Jehovah’s Witnesses were beaten, jailed, three were castrated, and in Kennebunkport Maine, of all places, their meeting hall was burned to the ground by American patriots. Then a few years later the Supreme Court reversed and said, “Yes, the Jehovah’s Witness kids do have a right, a First Amendment right, not to salute the flag, and not only them, but anybody who, for reason of conscience, doesn’t want to” and Robert Jackson in one of the great opinions of our time said, “After all, the kind of compulsory unity that you want in these flag salute cases, is the unity of the graveyard.” Dukakis never mentioned word one. That’s our heritage. Bush is not our heritage. Jackson is our heritage, and that case, the second case is our heritage. But nobody knows about it.
Heffner: Abe Fortas’ little book, what is it “Dissent and Civil Disobedience”?
Hentoff: Yeah, right.
Heffner: I remember back in the ‘60s I couldn’t get my students to read it, because it was Abe Fortas, they associated him with Lyndon Johnson and with the Vietnam war…
Hentoff: And you know, he was…if he had remained on the court, let alone become Chief Justice, he would have been one of the great libertarians in the history of the Court. I mean his stuff on due process for juveniles, Garcia versus Lopez, I think, the Tinker decision, I mean his instincts were really superb.
Heffner: The point is he understood the difference, and I think that’s what we’re talking about, between being able to be critical of…your history, even your heritage…
Heffner: …and rejecting it altogether, and I have the feeling that what you’re talking about on the campuses today once again, in some instances, is a rejection.
Hentoff: It’s a rejection that I think comes out of ignorance. I spend a fair amount of time every year in middle schools, junior high schools, and high schools around the country. Most kids, whether at fast track schools, or schools where the kids aren’t going to go anywhere, not through their fault, those kids are denotatively ignorant of their own rights, and therefore of anybody else’s rights and liberties. The teachers teach the Bill of Rights like they were teaching the mean average temperature in Duluth, and it’s no wonder that they come on campus, even the bright ones, the kids I talked about in Renton are the exceptions, they don’t know. They literally don’t know. I think…sure, there are many fundamental flaws in teaching today, like reading and writing and math, but we also…
Heffner: Little things.
Hentoff: Yeah. But we also do not teach who we are. Why is this country different from others? What…you know, why do we have a Bill of Rights? Kids don’t know that.
Heffner: See, that’s where we get back to “sweet land of liberty.” Why we are different from others.
Hentoff: Yeah, yeah.
Heffner: But you know, you remember, was it right after the Korean War, and John Dollard I think it was who did a study of how many turncoats there had been, how many American soldiers…
Heffner: …had turned coat when captured, indicating if you studied them, you found out that their minds as far as the American past, the American heritage was concerned, was a vacuum.
Heffner: That they didn’t know. Nothing very much has changed.
Hentoff: No. and increasingly, as…I mean to use the cliché, which is nonetheless operative, is increasingly most people get their news, their sense of what’s going on, their continuity, to use the term very loosely, they get them from television. Television doesn’t cover this stuff. The Supreme Court cases, the most important cases you see it all in a blur of about 90 seconds unless you stay up late, and maybe you’ll get it on Ted Koppel, and maybe you’ll get it on McNeil/Lehrer. Mike Gartner, who became President of NBC news, Mike is a Constitutionalist, he’s passionate about that stuff. So I told him when he got in there, I said, ‘Mike, I assume now we’re going to get more stuff on the Supreme Court.” Nothing. Nothing. (laughter)
Heffner: Because NBC is not exactly an educational instrument.
Hentoff: No, but you can do this stuff with a great deal of…I mean if you tell the stories, I mean occasionally a newspaper will do this, if you will take a story that you know about, it’s on the way to the Court, start it at the beginning, tell who these people are. People don’t know who the people are in these cases. If you told that on television, do about four of these a year, that…I mean the case of DeShaney, the poor kid, Joshua Deshaney…who was beaten again and again and again by his father when he was four years old until he is now profoundly retarded, he’ll be institutionalized for life, this case went to the court on the basis that the social worker in the county in Wisconsin knew what was going on, dutifully, responsibly put down everything in her notebook and did nothing. Did nothing whatever. The case was on “does this kid have a Federal constitutional right, when there is gross negligence, to get at least some damages?” Not that they’ll help him. The Supreme Court said “no” because it always says “no” in these cases because after all, he wasn’t beaten by the social worker, he was beaten by the father, therefore the state has no responsibility. People ought to know about that.
Heffner: But Nat, you’re saying that story, dramatic as it is…
Heffner: …would find…could…should find a place within our commercial…
Heffner: …media structure. You’re saying “sure”.
Hentoff: Listen. Murrow did it.
Heffner: Murrow did it, God bless him, and it isn’t being done now…
Hentoff: Ann Hill used to do it at ABC until she’s been apparently shunted aside. They do some stuff, but not as good as she does.
Heffner: But why aren’t these things done? They’re not done because you’re asking that they be done within the context of a commercial medium.
Hentoff: I know, I know. I have this…you talk about “sweet land of liberty”, I have this absolutely unfounded illusion that eventually some people, at least one of the networks will say, “Hey, you know, we’ve got some time, we’re not selling so much of, maybe we ought to do something for (laughter), for the…here’s majoritarian..for the good of the public in terms of telling them something.” You can’t preach, but if you tell the stories that’s something else.
Heffner: Nat, you think good things will come out of poverty, huh. Will come out of the fact that they’re going down in terms of their audiences rather than…
Hentoff: Well, if that indeed means that they will have to, like the cable networks, focus more on so-called specialized audiences, which I think is going to happen, then maybe they will do something. I mean public television is pretty bad on this stuff, too. They don’t’ give you enough of our heritage, let us say, except for some hokey dramas.
Heffner: Isn’t that because they want to keep the audiences hyped up in terms of numbers?
Hentoff: Oh, yeah, they did a terrible thing to Bill Moyers, who had a very good series a couple of years ago on the Constitution, he interviewed Supreme Court justices and people in the cases. Some of the stations would run him in the graveyard, like one in the morning, or one o’clock Saturday afternoon because they figured Bill Moyers’ show on the Constitution of the United States in the Bicentennial year would lower the ratings. (laughter)
Heffner: Nat, it’s not the content. It’s the time, and I’m being given the signal that’s all that we have. Thanks so much, Nat Hentoff for joining me again on The Open Mind.
Hentoff: Thank you.
Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s theme, and it’s a controversial one, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $3.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck.”
Continuing production of this series has generously been made possible by grants from: The Rosalind P Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Edythe and Dean Dowling Foundation; the Lawrence M Wein Foundation; the New York Times Company Foundation and, from the corporate community, Mutual of America.