Justice for All (96 page)

 

In Ginzburg's case, there was plenty about his conduct to find, if not exactly repellent, at least tawdry. He had been convicted of violating federal law by selling three publications through the mail:
Eros,
a coffee-table-style magazine with a hard cover and relatively mild sexual pictures and articles;
Liaison,
a cheap newsletter on sex replete with dirty jokes and poems; and
The Housewife's Handbook on Selective Promiscuity,
which Brennan described as a book that “purports to be a sexual autobiography detailing with complete candor the author's sexual experiences from age 3 to age 36.”
⁷⁶
To hawk his publications, Ginzburg turned to cheap stunts, trying to get mailing privileges in Intercourse and Blue Ball, Pennsylvania, before settling on Middlesex, New Jersey. The Court was offended, and Brennan's opinion, joined by Warren, chastised Ginzburg for maintaining “the leer of the sensualist.”

Leering is not unconstitutional, and sleaziness is not against the law. Neither of those facts dissuaded Warren, who joined the majority opinion that upheld Ginzburg's conviction and five-year prison sentence. Ziffren, Warren's clerk, tried to turn his boss away from that conclusion but could not. “This filthy piece of garbage,” Warren said of one of the many publications that littered the Court that term. “If my daughters saw this . . .”
⁷⁷

Ginzburg
was one of three obscenity decisions decided on that same March day in 1966, and the decisions in the three cases came after elaborate negotiations among the justices. In the end, the Court upheld Ginzburg's conviction, while overturning one that found the eighteenth-century novel
Memoirs of a Woman of Pleasure
was obscene,
⁷⁸
and upholding a conviction in a third case in which a New York man was found guilty of selling fifty books that “portray[ed] sexuality in many guises.”
⁷⁹
As such, the trilogy expressed Warren's view of how to control obscenity: punish purveyors but don't ban books. But between them, the cases attracted fourteen separate opinions by the justices, evidence of their inability to settle on a standard and of Warren's incapacity to bring along his colleagues in his too-clever-by-half approach. For Black, his bedrock commitment to the First Amendment made the cases far simpler, and his dissent in
Ginzburg
had all the clarity and persuasiveness that the work of Brennan, speaking for Warren, lacked:

 

The Court's ruling in Ginzburg was excoriated—Alexander Bickel, never a friend of the Warren Court, called it “an unforgivable injustice. . . . The law is shamed.”
⁸¹
Anthony Lewis at the
New York Times,
a fair-minded and incisive observer of that same court, also wrote critically. Warren did not care. When lawyers for Ginzburg asked for rehearing, they were joined by eminent legal scholars and notables, among them Whitney North Seymour, then the head of the American Bar Association, from which Warren had bitterly resigned in the late 1950s. In Warren's office one Monday morning, the chief justice was dictating to the Court clerk the justices' dispositions of various motions. When he reached the petition for rehearing in the
Ginzburg
case, he paused, and Ziffren interjected. That motion, he reminded Warren, was signed by a number of important legal figures, including Seymour. Warren flushed. “That son-of-a-bitch, Whitney North Seymour,” he growled. “Where was he when we were being attacked after
Brown
?” After an awkward silence, Warren added, “That petition is denied.”
⁸²

Neither Warren's Court nor his country would ever quite adopt his view of obscenity—that its control was a predicate of a decent liberal society. Indeed, from today's perspective, it can seem quaint or stodgy. But it is a reminder that for all the conservative opprobrium heaped upon Warren, he was in fact personally conservative. Though he failed, he tried long after most had given up to strike a social balance that would allow speech but restrain smut. He never stopped lobbying. In 1969, after leaving the Court, he continued to grouse about pornography to journalist Morrie Landsberg. “[S]ome of the things that are sent to my home are just unspeakable,” Warren said.
⁸³

Warren's ambivalence about free expression in the area of obscenity extended to more traditional speech as well, though not with the same ferocity. He was wary of an aggressive, fault-prone press, and no case better illustrated his strong feelings there than one that was argued in 1966 but held over to 1967. Not only would it offer a template for Warren's concerns about an aggressive press; it also would reunite him in the fourth act of his enduring rivalry with Richard Nixon.

After their tense disagreements in the 1940s and 1950s, Warren savored Nixon's close loss to John Kennedy in 1960 and, even more satisfyingly, his humiliating defeat in 1962 at the hands of Pat Brown, the race that ended with Nixon's snarling promise to the press that it would not have “Nixon to kick around anymore.” Flushed out of politics, Nixon had returned to private legal practice, hoping time would help to resurrect him politically. By 1966, four years had passed since his self-proclaimed “final press conference,” and Nixon was confident enough that he had begun laying plans for another presidential run in 1968. The oral argument before the Supreme Court thus offered an appealing stage to launch his return to public prominence, but it did so in the chambers of his old, unforgiving rival.
⁸⁴

Nixon came to Court to argue the case of James and Elizabeth Hill, whose suburban Philadelphia home was invaded on September 9, 1952, by three armed escaped convicts. Along with their three daughters, the Hills were held for nineteen hours before the convicts left them, unharmed though deeply shaken. The convicts fled to New York, where a shoot-out left two of them dead. The terrifying sequence of events drew widespread publicity, and the Hills were briefly thrust to national attention, against their will. Once the incident had died down, they moved from Philadelphia to Connecticut and refused all interviews about it. Life gradually returned to normal in their new home, far from the memories of the old.

That was upended by the February 28, 1955, issue of
Life
magazine, which contained a six-photograph spread highlighting a new play, then onstage in Philadelphia.

Titled
The Desperate Hours,
it told the story of a hostage drama that bore passing resemblance to the experience of the Hill family. For its pictorial spread,
Life
took members of the cast of the play to the Hills' old Philadelphia home and posed them to suggest that the events in the play—specifically, acts of violence by the hostage takers against the family, the father beating his son, the wounding of a boyfriend—had in fact occurred. They had not. “
Life
magazine lied,” was Nixon's blunt characterization. “And . . .
Life
magazine knew that it lied.”
⁸⁵
The Hills felt doubly wounded—by the exposure of a case they had tried to put behind them and by the falsification of the details of that story to make it seem more violent than it had been.

The Hills sued
Life
magazine under a 1903 New York privacy law that that state's courts had interpreted to offer a way to punish “the press and other communications media which publish the names, pictures, or portraits of people without their consent.”
⁸⁶
The New York courts ruled in favor of the Hills, who were awarded $50,000 in compensatory judgments as well as $25,000 in punitive damages. Time, Inc., owners of
Life,
appealed, and though the verdict was upheld, the appellate court ordered a review of the damages. They were lowered to $30,000, but Time, Inc. continued its appeals, bringing the case to the United States Supreme Court in 1966, eleven years after the original suit was filed.

On April 27, 1966, Nixon arrived in Warren's Court for his return to the national stage. Staring up at his old rival, reflecting on the indignities each had served on the other over the years, Nixon had to blanch at how thoroughly Warren once again controlled his destiny. But this time proved different: Warren's comments from the bench that day clearly signaled his sympathy with Nixon. As Nixon reflected on the session afterward, he told his friend and cocounsel Leonard Garment that he suspected Warren, like he, understood well the lash of an irresponsible press. “ [F] or private persons,” Garment wrote years later, “unwanted and false public exposure could be, in Nixon's words, ‘as traumatic as a physical blow.' ”
⁸⁷

In conference, Warren led what appeared to be a solid, six-member majority inclined to uphold the New York court judgment against
Life
magazine.
⁸⁸
He assigned the case to Fortas, trusting that Fortas's skepticism of bad journalism would lead him to write similarly to Warren's views. His initial draft opinion succeeded in that, but with unintended consequences. “Needless, heedless wanton and deliberate injury of the sort inflicted by
Life
's picture story is not an essential instrument of responsible journalism,” the opinion noted in one typically vitriolic passage.
⁸⁹
(Reading that, Warren drew a line along the side of the passage.) Confronted with Fortas's invective, the opinion became a dividing one for the Court, not a uniting one. Members of the majority began to slip away, encouraged especially by Black, who unloaded on Fortas's work.

Precisely when Hugo Black lost his patience with Abe Fortas is not clear. In 1963, Fortas had argued
Gideon,
which had given Black one of his greatest opinions. And when Fortas was named to the Court in 1965, Black lobbied Fortas to take the job. Black's wife, Elizabeth, welcomed “the tremendous news” of Fortas's appointment and exclaimed, “We are all glad!”
⁹⁰
But Fortas rankled his fellow justices with his open ties to the White House—he had a red light on the phone in his chambers that came on whenever he was speaking with Lyndon Johnson—and Black by the mid-1960s had begun his slide away from the Warren Court's majority, a majority that Fortas was happy to join.

Whatever the reason or moment, others at the Court began to pick up friction in their relationship soon after Fortas arrived. By the beginning of 1966, still in Fortas's first term, he and Black were edgy with each other. One early clash was over a difficult breach-of-the-peace case out of Louisiana, where Fortas wrote for himself, Warren, Brennan, Douglas, and White to overturn the convictions of five black men who refused to leave a segregated library in the parish of Clinton.
⁹¹
Fortas's opinion drew a dissent—a “high-pitched” one, in the words of Brennan's clerks. “Certain statements in that dissent, such as those accusing the majority of being distrustful of the ways of the Deep South, apparently distressed Justice Fortas, and they did not soothe an already strained personal relationship between Justices Black and Fortas.”
⁹²
In the aftermath of the case, Black stayed mad at the impudence he saw in Fortas; Fortas seethed over what he believed to be Black's dismissive and mean-spirited treatment. Their breach widened steadily over time.

So when Fortas circulated his opinion in
Time, Inc. v. Hill,
there were at least two reasons to suspect that he would have trouble with Black. For one thing, Fortas was proposing to clip the range of constitutionally protected speech. For another, Black did not like him, and by then, Fortas knew it. Thus, Black's dissent was not a surprise, but its vehemence was, as was its effect on the Warren-Fortas majority. It collapsed. Fortas had structured his opinion around the Court's still-evolving theory of privacy. His mentor, Douglas, was the architect of that idea, but in
Griswold,
Douglas had invoked privacy as a shield against government action, a position derived from but consistent with the structure and purpose of the Bill of Rights. In
Time, Inc.,
Fortas proposed to define privacy as a broader right to be left alone, and said the Hills' right of privacy was violated not by the government, as it was in
Griswold,
but by a private news organization, which invaded their privacy when it reported falsely about them. “The opinion,” Brennan's clerks recalled with obvious horror, “never once mentioned a First Amendment standard.”
⁹³

Black demolished that reasoning. He already had vented on Douglas over the right of privacy; he certainly was not going to accept its extension into an area he saw as sacrosanct, the right of free speech. With the end of the term approaching, Fortas was at sea. In a memo to the brethren, he admitted that he had been forced to rewrite the entire draft, and expressed regret at the burden he was placing on the rest of them.
⁹⁴
The case was put over and reargued, but Black continued to cast derision on his colleague's “balancing test.” That fall, as the conference met to discuss Nixon's reargument, the justices went around the table and saw just how much damage Fortas had done to his own position. Where the vote last time had been 6-3 to affirm the damages for the Hills, this time it was 7-2 against. Only Warren stood by Fortas (Clark eventually would join them), stern believers in the idea that privacy violated by the press was no less hurtful than privacy violated by the government.