One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see below).
Cincinnati-based First Amendment attorney H. Louis Sirkin says he's proud to defend clients like Hustler publisher Larry Flynt.
"My philosophy of the First Amendment is that we in society must learn to tolerate differences," he says. "Who is to say whose speech is wrong? Even if speech is wrong, that speech still tests my beliefs."
Sirkin has achieved national prominence in First Amendment circles defending clients that others might find sleazy. But the University of Cincinnati law school graduate says he is fighting for a principle: that the First Amendment protects all speech and that when it states that "Congress shall make no law … abridging the freedom of speech," it means no law.
"Louis Sirkin is arguably the most experienced obscenity trial attorney in the country," says Jeffrey Douglas, a Santa Monica criminal defense attorney and executive director of the Free Speech Coalition, a trade association of adult businesses.
"He is not only a leading obscenity lawyer, but simply a leading lawyer of his generation," Douglas says. "Perhaps the most remarkable thing about Louie is that not only does he handle extraordinarily high-profile cases but he also will travel to obscure little hamlets to handle misdemeanor obscenity cases for minimal compensation, because he is dedicated to a principle — the principle of freedom of expression."
In defense of Larry Flynt
Though he has handled hundreds of obscenity cases, no doubt Sirkin's most famous will be the one in Cincinnati facing his most infamous client, Larry Flynt.
Flynt was charged last year with violating obscenity laws after he opened an adult sex shop in the city that successfully prosecuted him once before more than 20 years ago.
Sirkin, like Flynt, believes that the current Cincinnati case will force a national debate on the question of obscenity.
"I agree with Justice (William) Brennan, who in 1973, after years of grappling with obscenity cases, finally concluded that you can't define it. I mean, one man's obscenity is another man's art," says Sirkin.
"What is more obscene: a picture of a naked body or the extreme violence shown on television — the dropping of bombs, the slaughter of the camp in Waco, the media showing a man committing suicide?
"I believe this case against Larry is a modern-day reincarnation of the case against Lenny Bruce," he says. "We have returned to the days in the '60s when the system destroyed that brilliant comedian."
Battling the Child Pornography Prevention Act of 1996
The Larry Flynt obscenity trial is not the only nationally important First Amendment case with which Sirkin is involved. He is the lead attorney in Free Speech Coalition v. Reno, the lawsuit challenging the constitutionality of the Child Pornography Prevention Act of 1996, or CPPA.
The law defines child pornography as "any visual depiction, including any photography, film, video, picture, or computer or computer-generated image or picture … of sexually explicit conduct, where … such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct."
In August 1997, a federal district court judge upheld the law, saying it furthered the government's compelling interest in protecting minors from sexual exploitation. The case is currently on appeal before the 9th U.S. Circuit Court of Appeals. Sirkin argued before the appeals court last March, though the court has yet to issue a ruling.
Sirkin argues that the law is a content-based restriction on speech that could criminalize artistically valuable paintings of children, adaptations of Romeo and Juliet or pictures of a child's anatomy used by psychiatrists or other members of the medical profession in treating adolescent disorders.
"The real danger with this law is the catch-all phrase 'appears to be a minor,'" he says. "The CPPA radically transforms the definition of child pornography by including in that definition sexually explicit depictions of youthful-looking persons who are over the age of 18. This law will place a real chill on artistic expression. I mean it could lead to the banning of a movie like 'Lolita,'" Sirkin says.
Saving the National Endowment for the Arts
Sirkin first vaulted into national prominence in 1990 with his successful defense of Dennis Barrie, the director of the Contemporary Arts Center in Cincinnati.
In April 1990, city police temporarily closed the Arts Center to secure evidence needed to prosecute Barrie for displaying the works of Robert Mapplethorpe, which some government officials deemed to obscene or pornographic.
However, in October 1990, a jury acquitted Barrie on all charges. Free-speech experts say the importance of the case cannot be overstated. Sirkin himself says the case "saved the National Endowment for the Arts."
However, he does see the case as having a negative secondary effect.
"The case showed the right-wing conservatives that they could do something crippling to arts centers and art they did not like," he observes. "The down side is that not every arts center is going to stand up and fight the battle for free expression."
On the positive side, Sirkin says, it is "heartwarming" that a jury can be educated on the law of obscenity and understand that works with serious artistic merit should never be branded as obscene.
David Greene, program director for the National Campaign for Freedom of Expression, said the case was extremely important because "it came at a time when the culture war on art was gaining momentum."
"The acquittal in the case really exposed the Achilles heel of those attacking artistic expression," he says.
Getting started in First Amendment law
Though he made his national reputation in the Mapplethorpe case, Sirkin began his First Amendment law career by representing the owner of a massage parlor.
Allen Brown, his father-in-law and mentor of sorts, represented several Cincinnati adult- bookstore and massage-parlor owners in First Amendment cases. When one of the massage-parlor owners had a conflict with another of Brown's clients, Sirkin stepped in and successfully defended the owner from obscenity charges.
"I started representing different types of clients, from massage-parlor owners to adult bookstores to video stores," he said.
Sirkin eventually began representing clients not only in the Cincinnati area, but also in New Orleans, Orlando, Fla., Richmond, Ind., and Greensboro, N.C.
He has represented clients on a variety of civil rights claims ranging from violations of First Amendment free-expression freedoms to unconstitutional searches and seizures under the Fourth Amendment. "It got to the point where I gained enough experience that I could file a Section 1983 (42 U.S.C. 1983 — federal civil rights statute) claim in less than a day," he says.
"After a while I guess I built up a reputation as a good lawyer on these issues, and eventually, if there was a case in Cincinnati, the clients would come to me for representation," he says.
Sirkin says he is proud to be a civil rights lawyer. "I was walking in the airport recently when a man came up to me and said, 'I just want to thank you for the work that you do. We need more people like you.'
"I'm sure there are some anti-pornography zealots that think I'm a demon for defending some of my clients, but I truly believe in freedom of expression and am proud to defend my clients' free-expression rights."
He dismisses the argument that the Founding Fathers would have been appalled had they known that the First Amendment would protect sexually explicit speech. "That is a rather narrow interpretation of the First Amendment and what it was meant to protect. I think that the Founders knew full well what they were doing when they drafted the language 'Congress shall make no law.'
"Censorship is like cancer," asserts H. Louis Sirkin. "In fact, it spreads faster than cancer."