Burt Neuborne

Free Speech and Due Process, Part II

VTR Date: January 16, 1997

Burt Neuborne discusses the law and due process in the courts.


GUEST: Burt Neuborne, Esq.
VTR: 1/16/1997

I’m Richard Heffner, your host on The Open Mind. And this is the second of two programs with Burt Neuborne, civil libertarian and New York University Law School professor. Our first program was about the one-sidedness of a movie that The New York Times described as both “celebrating a millionaire pornographer as an American folk hero,” and as “Milos Foreman’s raucous hymn to the First Amendment,’ The People vs. Larry Flynt. Though cast against type, to be sure, as Jerry Falwell’s counsel, Professor Neuborne even acted in the film. And we may touch on the film and the issues it raised once again. But, today I also want to ask him (and will, in time) about another of his quotations in The New York Times, in this instance about the obfuscation, rather than the search for truth, that seem to characterize many American trials. “At worst,” as The New York Times wrote, “Making for a contest between opposing public relations machines, each trying to sell its own stylized version of reality. It is, in any event,” The Times said, “a game.” Said Professor Neuborne about the game, “If one side makes a mistake, it has to live with the mistake even if it terribly distorts the outcome. The feeling is that the outcome is less important than the process, than defending the adversary process in the long run.”

Well, I want to get to that, and ask Professor Neuborne to elaborate on that point, but I think we left so many things hanging in our earlier discussion about the film, Larry Flynt, and the whole question of First Amendment rights that we ought to go back to that. And what are the strings that are hanging loose from that, in your estimation?

NEUBORNE: Well, I think some of the strings are: 1) What one ought to do about speech like pornography, or racist speech, that we’re afraid really hurts people. I mean, one of the troubling aspects of it… I’ve been part of this debate now for almost a generation. And I’ve always argued inside the ACLU that our approach to this is too simplistic. The usual ACLU argument is that, “Look, this speech doesn’t cause any harm. And since it doesn’t cause any harm, or it can’t be proved to cause harm, it’s therefore protected by the First Amendment,” and then we’d walk away from the problem.

I’ve argued that we should take a slightly more sophisticated approach and say, “Look, unless you can prove the harm, you can’t suppress the speech.” But we all know it probably causes some harm. So we really ought to acknowledge that there are some victims out there who’ve been hurt by this speech, and that it is the job of civil libertarians not simply to protect the speech, but to rally to the victims. For example: hate speech on campus. I believe faculty, for example, on campus, where there is a hate-speech code. The way to deal with it is not to suppress the hate speech, because we can’t quantify and prove the harm sufficiently strongly to be able to censor. And we do too much damage to the First Amendment. But we can’t turn our back on the fact that there are people on that campus who have been savaged by that speech, who have been hurt by it, and who need help. And it is the duty of the faculty member under those circumstances to succor the victims, to help them, and to become part of the counter speech. And too many American faculty members have turned their back on them, and rely on enforcing some sort of rules to fix it instead of accepting personal responsibility to go to the victims’ defense.

HEFFNER: You know, it’s interesting to me, you say, “We know that too many students have been savaged, have been hurt.” Well, that isn’t harm if you don’t mean by that what harm, then what do you mean?

NEUBORNE: What we know and what we can prove legally are two different things. I mean, I have…

HEFFNER: But you set that up, what we can prove legally.

NEUBORNE: Yes, of course, but… Sure, but I… No, I don’t set that up; the First Amendment sets it up. And for very good reason. For very good reason. The last thing you’d want is to have everybody, anybody, you, me, Jerry Falwell, come in and say, “I know that this speech causes this. I can’t prove it to you, but I just know. I know it in my gut. I feel it. And therefore, because I know it, and because it’s so- called common sense that it happens, I can censor that speech.” If that’s the formula for censorship…

HEFFNER: Would you drop the word “censor?”

NEUBORNE: “I can regulate that speech. I can stop the speech.” But I won’t use the word “censor”; it’s loaded. “I can, in some sense, prevent the speech.” If that’s the formula for the First Amendment, then virtually all speech that is controversial, that might have an effect, ranging from labor speech that erodes… During the Twenties, the same argument was made about labor unions: that speech that said that the bosses were being unfair eroded the respect for the job, and therefore could cause the economic system to come collapsing down. And that what precipitated Holmes’s ‘Clear and Present Danger”; that you’ve got to prove the clear and present danger; you just can’t assert it.

Now, the fact that you can’t prove it though doesn’t mean that people of good will can’t be nervous that it exists. I’m worried about sexist speech and racist speech. I’m worried about the effect on weak people. And I think we should try to help them.

HEFFNER: Let’s turn to the feast, the veritable feast of violence in the media. Do you think it has any impact?

NEUBORNE: Sure. I mean, if I didn’t think it had any impact, then I wouldn’t care whether my kids watched it. But I do care whether my kids watch it, and my grandson, and…

HEFFNER: And that others do, and…

NEUBORNE: Yeah. Sure. I mean, I think we put our heads in the sand if we say that the collective effect on a society of what it sees in the mass media doesn’t somehow affect the nature of that society.

HEFFNER: Do you feel that those many, many, many, many brutal acts of violence are speech…

NEUBORNE: Sure. Unquestionably.

HEFFNER: …and have to be treated as…

NEUBORNE: Unquestionably. Unquestionably.

HEFFNER: …my speech would be treated if I spoke in favor of Ronald Reagan or George Bush or…

NEUBORNE: Unquestionably. I mean, they are as much speech as the acts of violence in a Greek tragedy or in Hamlet. Yeah. I mean, they are, they are aspects of artistic expression, and therefore speech. Whether they’re aesthetically valuable speech is a different story.

HEFFNER: But you feel that this is what the Founders meant?

NEUBORNE: Yes, I think the Founders… Sure. I think the Founders meant that expression, whether it’s artistic expression, political expression, social expression, religious expression, that expression is something that individuals engage in and that the government keeps its hand out of. Now, there are very narrow areas where, if this expression is so obviously harmful – which is what Holmes means by “Clear and Present Danger” – where you can prove that the harm comes directly out of the expression and there’s no other way to deal with it, that you can impose minimal restrictions on the speech. But the vast bulk of controversial speech is just a question of opinion about how much harm it causes.

My difference from the traditional ACLU position is the traditional ACLU position stops there and says, “The speech is protected. We don’t have any more responsibilities.” I would go one step further. I would say, “Look, the speech is protected, but somebody’s paying a price for it. Somebody is paying a price for the fact that we all think we’re better off in a society that’s free and that keeps the government out of this. And the cost of that is being born by the targets of this speech.” And it’s a cost that we can’t prove and quantify, and therefore there’s nothing that we can do about it legally, but there darned well is something we ought to do about it socially and morally. And that there is an individual obligation to come to the assistance of people who have been the target of this speech and to fight back.

It’s one of the reasons why, through most of my career, I have been both a very vigorous free-speech advocate and a very, very vigorous feminist. Because I believe that I had a duty, that if I was going to protect speech that I knew deep in my heart was hurting women, because I thought we were all better off that that speech be free, that I had a special duty to then attempt to do all I could to rally to assist the victims of the speech. And it’s been the two great concerns of my life: free speech, and feminism.

HEFFNER: Would you encourage non-governmental involvement with what you insist upon calling “free speech,’ and that is violent acts in the media?

NEUBORNE: By “non-governmental involvement,” you mean rating systems or…

HEFFNER: I mean PTA’s and other groups.

NEUBORNE: Oh, absolutely. Absolutely.

HEFFNER: Boycotts too?

NEUBORNE: Absolutely. I mean, the notion of a boycott…


NEUBORNE:…if enough people believe that something is dangerous and they want to react to it, that’s citizen involvement; it’s not the government. I’ve always felt that there has been an interesting terminological distinction between… We’ve sort of merged boycott and government activity into the same thing. They’re very different.

HEFFNER: Of course.

NEUBORNE: The First Amendment forbids the government; it doesn’t forbid individuals from getting together and saying, “Look, I alone am not strong enough to make you do something. But a group of us together are strong enough to make you do something.” That’s what freedom of association is all about.

HEFFNER: Do I understand then that you would like to see a considerable breakdown or breakup of the concentration of power in media…


HEFFNER: … that we experience now?

NEUBORNE: Yes. I think ultimately it’s dangerous to put too much of that power in one person’s hands. The fact that you’re not called a government official doesn’t mean that you’re not dangerous [Laughter] if you have too much power…

HEFFNER: Well, then you don’t govern.

NEUBORNE: Yeah. The reason we care about the government, I mean, the reason the First Amendment points at the government and says, ‘Keep your hands off,’ it’s because the government’s the biggest bully in town. It has the most power. When you have these private entities gathering as much power as a government, and then using it, I get as nervous about them as I do about the government, and I want to, in some way, try to check their uncontrolled power over speech.

HEFFNER: With that, then, you see, with that power diminished, that there would be greater room for accumulations of citizens who feel strongly…

NEUBORNE: In some sense, yeah.

HEFFNER: … to boycott.

NEUBORNE: Yeah. Two things would happen. If you broke up the media into smaller units, my sense is that you would have a larger set of choice. I mean, I hope this is so. People argue that historically it hasn’t happened. But my hope is that if you can break the units up and provide more and more and more options to people, that the health of the communication system is increased, the more options people have to dial in. And then, secondly, that smaller speakers simply lack the power to impose their values on everybody else. It’s easier to fight back against them. It’s easier to fight back against an irresponsible, small speaker than it is to fight back against an irresponsible, enormous speaker.

HEFFNER: As I read Neuborne, I find this continuing enthusiasm for a belief in individuals and their power to resist lie, their power to resist the imposition upon them of falsehood, of manipulation, etcetera.

NEUBORNE: You’re kind not to use the word that somebody would at that point, and that’s “faith.” [Laugher]

HEFFNER: Your faith, huh?

NEUBORNE: Faith. Faith. Faith in people. It’s true. Almost, most of my First Amendment work, almost all of my equality work, is based upon one assumption. And the assumption is that the notion of the free-standing individual, capable of making rational choices, capable of rising above the trash that surrounds us in so much of our lives, and being able to think through and make those individual choices, I think that’s the building block of this culture, both politically, as a democracy… If I didn’t believe in individuals, I don’t think I could believe in democracy.

HEFFNER: But, of course, this was John Milton’s belief…


HEFFNER: …when he wrote, Who ever knew truth put to the worse in a free and open encounter?’ But, you have been describing the fact that in our times there really is not such a free and open encounter. So how does the truth out? How does that individual manifest what you and 1 both believe is his basic ability?

NEUBORNE: Yeah. That’s a terrific point. I mean, I think you’ve put your… If I had to put my finger on the single worst thing that has happened to us as a people, it’s the inability to engage in the kinds of exchanges and civic discourse that is necessary for a democracy, and a decent polity to function, a decent society to function. And part of it is because the speakers have gotten too big and too out of control. Part of it is because money dominates so much of what our political speech is all about. A part of it is about the fact that we’re all so busy trying to make a living that we don’t have enough time to spend thinking about that. The key to reform, I think, lies not in top-down government regulation, in an effort to try to fix these things; the key to reform is to recognize that the flame that burns inside an individual, the dignity that we care about, the reason we care about rights and individual freedom and democracy, that flame has to be nurtured from the bottom up. What we have to be doing is empowering individuals. Empowering them to fight back against large concentrations of speech that they don’t like, empowering them to fight back against hate speech and fight back against sexist speech, empowering them to be able to take their political democracy back. It can be done.

HEFFNER: Well, wait a minute. It is at that point that I say: Sir, you say it can be done. Because if that is what is to be demonstrated, that is the last thing in the world that is being demonstrated today. By your own testimony you’re so much concerned with the power of these larger groups that when you say it can be done, ideally you and I want to turn the clock back and embrace those wonderful older ideas that you identify with concern for the First Amendment and free speech and no government involvement. I keep coming back, and as I read you, saying, “When is Neuborne going to deal with what he, in a sense, says” – and you’ve said it here today – that “I believe in the individual, but I look around me and I see that the individual is being squashed by these powers”. Well, isn’t it one thing or the other! Either the individual expression, individual concern, joining together, making the right choice, as perhaps a jury does, when it is informed, when there is a judge who says, “You may say this, and you may not say that. You may ask that question; you may not ask that question.’ When a judge is a referee and there is a free and open encounter, then the people, yes, the people make the right judgment. But you describe a situation in which the people aren’t permitted to make that right judgment.

NEUBORNE: Well, I describe a situation in which there are serious structural problems, structural impediments. I believe that they are structural impediments that are caused by excesses of power. But there are two ways then to deal with that, Dick. I mean, you could say, “I now give up on the model. I give up on the notion that the individual is the building block in society, because the powerful forces that have grown to squash the individual are such that only surrendering the individual to some mass, to some group to be part of a mass may be part of the community or the government,” or whatever rhetorical move you want to make. But surrendering on that individual because it can’t be fixed. And that means essentially just giving government the power to try to fix it, top down. Or saying, “Can I identify, can I diagnose what it is that’s squashing the individual? And can I figure out structural changes to try to let the individual get out from under whatever it is that’s squashing him?” I believe passionately that it’s the second one that is the right way to go. That what we should be doing is diagnosing those forces that are squashing the individual, and then unleash the individual from that, rather than say, “The day of the individual is over. Individuals are dinosaurs. John Milton, and Locke, they’re interesting historical footnotes, but they don’t have any meaning for our time.”

I would fight against that. It seems to me that they are the only hope for our time. If we go forward and give up on the individual, and then just say, “The government’s going to fix it. Some sort of government solution is going to fix it,” that’s not going to liberate the individual.

HEFFNER: We used to say we trust in the individual, and in her or his capacity to make judgments in the economic area. Let the buyer beware.

NEUBORNE: As long as they were adequately informed.

HEFFNER: But now we’ve moved to a position — we moved there a half- century ago – “Let the seller beware,” because we know that, in truth, in the dynamic terms of the dynamic terms of our society, the individual is now well enough informed, there is power opposing the ability of the individual to do that. And so we interpose, for the sake of bolstering that individual voice, those individual voices, we interpose some regulatory device.

NEUBORNE: Yeah. Some regulatory device to try to, for safety or for… And I have no problem with that. I’m not talking about dismantling safety regulations or general regulations of other than the marketplace. But, as you, yourself, point out, I mean, let the buyer beware, let the seller beware, it all turns on whether there’s an adequate flow of information to the consumer. If the consumer has the facts, the consumer knows better than any government agency what to…

HEFFNER: That’s that free and open encounter.

NEUBORNE: Yeah. But…

HEFFNER: But we don’t have it.

NEUBORNE: But why give up on it? I mean, the fact that you say that we don’t have it doesn’t mean that we should abandon it as an ideal. I mean, the question is: Do we abandon it as an ideal? And I say no.

HEFFNER: I agree with you. Let’s not abandon it as an ideal. But let us also be realistic enough to know which way those powers are taking us.

NEUBORNE: I think you’ve put your finger on it. And the question is: How do we achieve the ideal? That should be what we should all be focusing on now. How do we achieve the ideal where each individual in this society can act to the fullest extent of their powers and can live a life that we’re proud that we all can live together? And one way to do it, I think, is to really force the commitment to the fact, to the core of dignity that each individual has, and say that one aspect of that is you don’t tell them what they can read, and you don’t tell them what they can say, even if you’re nervous about it. Because to do that cheapens the extent to which you value that person as a free-standing individual.

I have tremendous arguments with friends of mine about the value of certain television programs. I think they’re nuts to watch them. I think they’re crazy to waste their time. But we disagree. We just disagree about that. And I think some of that stuff is dangerous. But I’m not going to attempt to put an end to it just because I disagree with it.

HEFFNER: No. In a sense, though, you keep coming back to the other area. You talk about, again, let the buyer beware. I’m not talking about letting the buyer beware; I’m talking about the seller, if you will, the pornographer of violence beware. And I think it is to our own risk, at our own risk, that we don’t take that position. But, you know, when I read the piece in the Sunday Times in which you were quoted, I was so taken by your…

NEUBORNE: [Laughter] I’ll never eat lunch in Hollywood again.

HEFFNER: [Laughter] Oh, no, no, no. Quite the contrary.

NEUBORNE: [Laughter]

HEFFNER: I was so taken by your desire to have a real exchange. Don’t make it a patsy situation.

NEUBORNE: Oh, yeah. The First Amendment loses when you don’t really use it. I mean, the glory of the First Amendment is the real exchange of ideas. And to have a half of an argument in favor of the First Amendment, well, that’s very nice. It’s a good mass civics lesson. And I’m proud of having played a role in it. But I would have felt even better about it if the movie, if I could think that the movie was a real, hard look at the First Amendment, and that when people came out of that theater they could come out of that theater thinking, “Gee, I’ve been through a real intellectual trip, as well as an enjoyable one.”

HEFFNER: You know, I’ve been writing an oral history of mine for Columbia, constructing an oral history of my years in Hollywood – 20 of them – and I started off where you were, where you are. I was a member of your national board. I must say it’s very difficult to be as deeply immersed, as deeply immersed as I was. You made one film. I saw hundreds and hundreds and hundreds and hundreds.

NEUBORNE: [Laughter]

HEFFNER: I do wish it were possible. Maybe that’s why I called you and invited you, so that you could bolster my flagging orthodox First Amendment position. Not my First Amendment position, but my orthodoxy. But I kind of have a feeling, listening to you further, that you may find yourself with the teeter-totter balancing otherwise.

NEUBORNE: I mean, I gotten off the train on two issues already. I mean, the campaign finance issue puts me at odds with orthodox free speech. Orthodox free speech arguments these days are that speech equals money, that the spending of political money is as protected by the First Amendment as the making of a political speech. I just think that confuses two very, very different ideas. I mean, sure, spending money is of some value, but the first hundred dollars you spend maybe isn’t the same as the second hundred dollars you spend, and it certainly isn’t the same as the twenty-fourth million dollar you spend. And to say that it’s all speech seems to me that they have just made a terrible mistake 20 years ago, a well-meaning decision of the Supreme Court, and we have to retreat, go back to that point, and start again.

HEFFNER: Do you think it will retreat?


HEFFNER: You do.

NEUBORNE: Yes. I mean, you know, I’m guilty of romanticism. I mean, I plead guilty…

HEFFNER: You’re an optimist.

NEUBORNE: …I plead guilty to, you know, to romanticism in the first degree. I mean, I do believe that we can correct mistakes. I do believe that… I think, you look at the last election. A billion dollars spent on the election in what had to be one of the most disappointing exchanges of political views in my lifetime. Nothing got said.

HEFFNER: Non-exchanges.

NEUBORNE: Non-exchanges. Not an issue that really mattered was talked about in that campaign. And yet we spent more money on it than we’d spent on anything else. I mean, just huge amounts of money. And the proof of the putting is 49 percent of the eligible electorate voted. First time since 1824 that we were that low. Now, 1924 is a low period also, but it’s a phony year because it was the first if year that women could vote.


NEUBORNE: So you had the electorate expanded. But this is really the first time since 1824 that less than half of the people thought it worthwhile to vote. That’s, I mean, canaries should be dying in mines all over this country. That used to be the figure that triggered the Voting Rights Act. We have a Voting Rights Act in this country that says that in certain parts of the United States, when participation falls below 50 percent there’s a presumption that people are being denied the ballot.

HEFFNER: Well, that’s why I liked so much your phrase from the last program: ‘It should be one dollar, one vote.’

NEUBORNE: One dollar, one vote is what we’ve got now. It’s like we’re running this country like a joint-stock company: you buy a share depending upon how much money you have. And that can’t be right.

HEFFNER: Yeah, but, you know, but that’s that whole marketplace psychology.

NEUBORNE: Yes. Yes, I agree. We’re suffering…

HEFFNER: Including, for me, that terrible, terrible concept of the marketplace of ideas.

NEUBORNE: Yeah, which is not the best argument for free speech. No, it sure isn’t.

HEFFNER: You know, we’re at the end of the program. We never elaborated upon that, we never elaborated upon the due process business. You’ve got to come back.

NEUBORNE: Yeah. My pleasure. This is a wonderful show.

HEFFNER: Burt Neuborne, thank you for joining me today. We obviously have joined our ideas, if not in unison, then against each other. That’s what you wanted, and that’s why you said the film should have done more by way of having dialogue.

NEUBORNE: I think so.

HEFFNER: Thanks.


HEFFNER: And thanks too, to you in the audience. I hope you join us it again next time. Now, if you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P Box 7977, FDR Station, New York, NY 10150.

Meanwhile, as an old friend used to say, “Good night, and good luck.”