Ken Paulson: Welcome to "Speaking Freely," a weekly conversation about the First Amendment, the arts, and America. I'm Ken Paulson, the executive director of the First Amendment Center. Joining us today is a staff writer for the Village Voice, a syndicated columnist, and a lifelong defender of the First Amendment, Mr. Nat Hentoff. Welcome.
Nat Hentoff: Thank you, sir.
Paulson: It's great to have you with us. As you know, this show is about the First Amendment and the arts, and you've occupied this unique role, in that you have become one of the nation's foremost experts in civil liberties through your column, nationally syndicated. How — what is the state of the First Amendment today compared to when you began writing about these issues?
Hentoff: Well, the First Amendment, like most of the rest of the Bill of Rights, wasn’t much in currency then, because most people didn't know about it. In fact, I don't think most people know about it now, judging by your Freedom Forum surveys and my own experience. It became much more relevant, much more vivid, during the antiwar movement, during the civil rights movement. I mean, a friend of mine named Malcolm X made full use of the First Amendment, as Sharpton does now with, I think, less effect. But, you know, one of — my obsession through the years — I go to a lot of middle schools, high schools, and elementary schools — this is one of the worst taught subjects in the United States. Most people — kids, adults, law students, sometimes — don’t know their own rights and liberties, so, they're not — they’re either indifferent or hostile to other people. So, I would say the First Amendment is in slightly better condition now because of the civil rights and anti-war movement, but not significantly better. There's so much more to be done.
Paulson: And yet, don't you think most Americans think they know the First Amendment?
Hentoff: Oh, that's the famous — Oliver Wendell Holmes, whom I’m paraphrasing here badly, used to say, A lot of people say, ‘We believe in free speech.’ What they really believe in (is), ‘We believe in the free speech we agree with.’ Now, said Oliver Wendell Holmes, the test is, do you believe in the right of people whose speech you hate to speak freely? Ask people that; you see what the answer is.
Paulson: Do you think people view freedom for the arts as being on a different level than freedom for political speech?
Hentoff: Well, yeah, although — I know, again, the Freedom Forum survey and other things I’ve seen — it's amazing, the questions you people asked: "Do you think that art that offends should not be permitted?" I think a healthy majority said —
Hentoff: "Yeah, we don't think that should be seen." Political speech — well, an alarming number of people, maybe it was a minority, said the newspapers don't have the right to espouse candidates.
Paulson: Right. Endorse candidates or criticize candidates.
Hentoff: Yeah, and criticize candidates. That brings us back to the Alien and Sedition Act of 1798, when reporters and editors were thrown in jail by John Adams and the Federalists simply for putting the Congress up to ridicule seven years after the First Amendment was ratified. So, here we have a significant number of the population pretty much agreeing with that.
Paulson: You've written about jazz for a long time and written authoritatively. That's a form of art that's been censored frequently. I guess, the Nazis censored jazz as well.
Hentoff: Oh, long before that — there was a very good CBS special on jazz, "The Devil's Music," during the '20s. There were preachers, ordained, respectable preachers, who told their congregations that if you listened to jazz, all kinds of other terrible things would follow that would eventually send you straight to hell. I remember, when I was a kid, I read a lot of trash magazines, and there was a true confession story: "I married a jazz musician, and then what happened was, oh." But in Germany — and Russia — but in Germany, jazz was a combination — according to the authorities — of Jewish and black music, and, therefore, was totally forbidden. In Russia, under Stalin, it was really wonderful. A lot of the young, not only musicians but listeners, would get liner notes smuggled in on, you know, on records, on LPs, and they'd distribute them in what was it called? [Samizdat], you know, underground stuff. And of course, Willis Conover, who did a great deal for freedom and jazz through "The Voice of America," he was listened to surreptitiously all over Europe.
Paulson: In your experience in later years, in the '50s in America, was, was jazz the subject of censorship then?
Hentoff: No, it was mostly subject to indifference. When, when rock music began to come up very strong, until then — you know, jazz was never popular in that sense, except when the big bands were hitting in the '30s and '40s, Benny Goodman, etc. Always the white bands more popular than, than Ellington or Jimmy Lunceford, but it was popular, because people danced to it, but once rock came up, every generation, there’d been a nucleus of young listeners who hit jazz. They began to diminish, and that’s — that wasn't censorship. That was the freedom of selection to inferior music, but that's their business. But I remember Teddy Wilson encouraged me — you know, the great pianist — he said, "You know, eventually some of these kids, they have an ear for music that isn't developed yet, and they will eventually turn to jazz." And that happened. That happened in the '70s and '80s. I remember I wanted to see Max Roach, who was not a pop — well-known household word, at the Village Vanguard in New York. This was in the late '80s. There were lines around the block on a Saturday night, all generations and colors and whatever, so that gave me some heart. And now, because of Wynton Marsalis, whom I have differences with some of his policies, but he's like the Leonard Bernstein of jazz, and he's made a lot of people, including musicians, very much involved with knowing the roots, and that means an audience for generations to come, I hope.
Paulson: The survey you cited included a reference to 40% of Americans saying you shouldn't be able to sing a song if the music may offend anyone.
Paulson: Do you think that same sentiment — if we'd done that survey in 1955 as Elvis hit the stage, would that have been the same kind of response?
Hentoff: I think in 1955, yes. If you had done it '59, '60, when the civil rights movement was burgeoning, and the anti-war movement, the response would have been different. But in the '50s, there was, even among academics, the sense that we're at the end of ideology, and everything is nice and calm. Eisenhower is president. Shouldn't make any kind of waves, including with this kind of offensive speech in art. That's why Lenny Bruce got into so much trouble.
Paulson: Why don't you talk about your friendship with Lenny Bruce?
Hentoff: Well, Lenny, first of all, came out of jazz. When he first broke into the strip — you know, stripper clubs in the — on the West Coast, they used jazz musicians in the pit. And usually, jazz musicians would go out at intermission to the nearest bar or whatever. They stayed for Lenny, because he dug the music, and he also was a true improviser. And another thing, if you've ever heard any of his records, he used the microphone as if it were an instrument. The timing, the textures — but he — his mission, he thought — and it was a mission — was to be funny and to, as he put it, take the covers off. If you, if you do something, you ought to say what it is you do. As a result, he was arrested for obscenity in many parts of the country. I remember there was one time in San Francisco, he used the word "cocksucker" in a skit, and the cop who arrested him was sort of a fan. He said, "Lenny, I have to do this. In this society, that’s — you can't say that." And Lenny said, "Why? It's when you cover it up that it becomes — you know … ." He used to come into the — I love this one — he used to come into the Vanguard Stage, and at this time, that was probably the most integrated audience of all kinds, sexual preference, color, religion, no religion. He'd come up and look around and say, "Any kikes here tonight? Any niggers? And spicks?" The place would freeze. What dybbuk got into this guy? Then he'd say, "All right, now, why do you get paralyzed by words? Why don't you try to figure out why those words have that effect?" However, his main crime was a skit. I think this is the one that got the revered district attorney of New York, Frank Hogan, to prosecute him. He had Christ and Moses coming back from earth together. He was an ecumenical fellow. And they stop in east Harlem, and they see, as Lenny put it, 40 people in a room, the streets, and all that. Then they go to St. Pat's Cathedral, and Christ is looking up there and says, "That guy —" now, he was talking about Cardinal Spellman — "he's got a ring on that's worth $10,000. What are they doing for the poor?" Well, that was considered anti-Catholicism, and Frank Hogan, who was a devout Catholic, tried to get somebody in his office to bust this guy for obscenity. They sent down — when Lenny was playing a place called the Cafe-A-Go-Go, an inspector from the license department, who happened to have been a former CIA agent, which I just mention for the — it's like a fiction piece. He was a rather nice guy. He told me later, "Look, I was just doing my job." The famous line. He took notes as to what Lenny was saying, and those notes, as he testified in the trial, were what got Lenny convicted. Lenny was begging me, his lawyer, and he finally almost went on his knees before the judge, a Judge Murtagh, who was also a Catholic and very prejudiced against Lenny, "Let me do my act. How can you — how can you convict me if you don't hear what I do?" Wouldn’t work. And that was the end, or almost the end. He became more obsessed with the First Amendment than anybody I’ve ever known. I used to visit him at a hotel on 8th Street in the Village. You'd go in, and all over the place, on the floor, on the counters, on the beds: law books, transcripts of cases, Supreme Court briefs. He was convinced that the First Amendment would finally liberate him. And it did posthumously, because after he died, a state appellate court said, "What do you mean obscenity? This was free speech." But the end, he — as he knew was going to happen, he told me then, "If I get convicted in New York — New York, free city — nobody's gonna want to hire me." Well, very few people did, and his income went way down. The day he overdosed — and Ralph Gleason, who was a good friend of his, thinks it was an accident, but anyway, he was very depressed. The day he found out that he was going to lose his house, because he couldn't pay the rent anymore, was when he died. And later, later on, the assistant district attorney that Hogan finally found to prosecute him, Richard Kuh, has been going around talking about, "Well, I really liked his work, you understand, but I had my job to do." And I was one of Lenny's witnesses at the trial, and Kuh started off by saying, "Is it not true that you wrote a book praising a man who was convicted and imprisoned?" I said, "Yeah, A.J. Muste. He was a pacifist. He went over the fence at a nuclear base in Nevada, and he was delighted to do his time, just like Gandhi had done." And then another witness was Dorothy Kilgallen, a very well-known columnist, conservative Catholic, and Dorothy loved Lenny Bruce. And she's sitting on the stand, and with her white gloves, very demure, and Kuh had worked up every word in Lenny's routines that he knew about that might shock a woman like Dorothy Kilgallen, and he let her go with this barrage of words. "What do you think about that, Miss Kilgallen?" She looked at her gloves and looked at him, "Well, they're words, words, words." But he was convicted two-to-one.
Paulson: You ended up in the witness stand on another occasion. An obscenity — a famous obscenity case in New York.
Hentoff: Oh, Ralph Ginsberg?
Hentoff: I wasn't a witness, but I was part of the evidence that they used against him.
Paulson: You weren't actually called in the trial?
Hentoff: No, I wasn't called. He was, he — his turn came before the Supreme Court of the United States — well, what happened was, he was publishing a magazine called Eros. There were some very interesting photographs in it, and he had articles. And I had written an article — S.I. Hayakawa, who later became sort of a sleeping senator and a kind of autocratic college president, was a semanticist. That's how I first knew of him, and he wrote — he was very strong on why blues lyrics are so much superior to pop lyrics, because they, they told what people did, to use Lenny's term. And I wrote a piece comparing blues lyrics with some popular lyrics. One day — this is before I knew much about the Fourth Amendment or the Bill of Rights — a guy shows up at my door. He's on the staff of the — the police staff of the D.A.'s office. He's carrying a gun. "Gotta take you downtown." That’s when I got into the case. I was interviewed as to what I was doing writing for this magazine. Now, he was busted and convicted at the Supreme Court less for what he had in the magazine than the way he advertised. There was some towns, like Blue Balls, Pennsylvania, and the like. That's what got him. To me, the striking thing was — and I got to know Justice (William) Brennan very well later, who was, of course, like (William O.) Douglas, the paladin of the First Amendment on the (Supreme) Court — he wrote the decision affirming Ralph Ginsberg’s sentence for pandering obscenity. And I asked a clerk later on, "Why?" And he said, "Well, if you remember —" I wasn't there. The clerk was watching. [The] back of [Brennan’s] head got red as he announced this decision. [The clerk] said, "You got to remember, he had a teenage daughter." So, not even Brennan was inviolable. So, later, when I got to know him, I said, "Justice Brennan, it seemed to me that that decision contradicts everything you've ever done. You were the one who said finally in Miller v. California, ‘I can't draw the line anymore.’" He said, "I don't know the difference between obscenity and what should be printed." "So, how come you did this?" "Well," he said, "you don't see it quoted very often, do you?" And that was the end of that conversation.
Paulson: Your observation about the color of Justice Brennan's neck … that may hold a clue as to why we don't have television cameras in the Supreme Court.
Hentoff: You know, this is the most arrogant thing the Supreme Court keeps doing. You know, during the furor over dimpled ballots and who was going to be the next president, Supreme Court arrogantly says, "No, you can't have cameras. What we'll do is, we'll expedite a transcript." Now, the transcripts don't even tell you [which] justice is asking the questions. Now, I’ve been at oral arguments. You can tell a lot about these people about whom most people know nothing, and they decide a lot about their lives, by their whole temperament and what they do as they ask the questions and how they're trying to convince each other. And the guy I have a — usually have a lot respect for, David Souter — he's a thoughtful man. He has twice testified before Congress, and I think these are his exact words: "The time a camera enters the Supreme Court will be over my dead body." And he doesn't say "the Supreme Court." He says, "my court." It's not his court; it's our court. Why do they do that? Well, Justice (Byron) White was honest about it. There was a seminar in Aspen, Colorado. He said, "Look, I like to walk around. I don't want people to see me. It's selfish, but —" and (Harry) Blackmun, who had reason to be somewhat concerned, because somebody threw a rock through his window once because of Roe v. Wade, Blackmun used to delight — when they had these pro-life rallies outside the court, he would stand at the fringe of the crowd and hear himself being denounced. Nonetheless, what they do is in our name. And it's just incredible that they won't let cameras in.
Paulson: Let's talk about another division of government, the legislature, the Congress. Why is it so easy to run against the First Amendment? Why is that a palatable position to take?
Hentoff: Well, the main reason is that most of the populace, who are their constituents, are either indifferent to or hostile to the First Amendment, particularly in terms of the buttons they will push. You've got Joe Lieberman and John McCain, who have been threatening and actually have filed laws that would make it a crime for television stations — not make it a crime for television — networks that would not adopt their standards of what should be shown, or at least the warning signals, would be punished in terms of various things they might otherwise want to do. Movies as well. In fact, Lieberman did put in a bill that would have some criminal sanctions — civil sanctions against the movie industry. Nobody much objected in Congress because they figure their constituents like that. They want to put these filtering machines into the public libraries, in public schools, even if they take out breasts when you want to find out something about breast cancer. So, it's the popular ignorance of the First Amendment that decides that. The press does some playing of it up. Not enough, I think. And when it happens in schools, when students get their First Amendment rights — and they do have First Amendment rights, despite the Hazelwood decision — violated, it’s very hard to get a mainstream editor or reporter to follow it. And yet my, my experience among high school students is that those who are most involved with the First Amendment — this comes back to my own life experience — are those who work for the student papers and have been censored. And they know, but the rest of the students don't know how important that's going to be later on.
Paulson: We see a cycle every 10, 15 years, major congressional hearings into popular culture.
Paulson: We saw it in the wake of Tipper Gore and the investigation into — her investigation and the PRMC, and is rock ‘n’ roll perverting entire generations of young people? We certainly have seen it very recently with the hearings on television and media violence, video games. In the early '50s, there was Dr. Frederic Wertham's book on comic books leading to hearings. Is it cyclical?
Hentoff: The basic anti-free speech, free press sentiment among the public is always there. It's latent. It gets, it gets worked up when somebody in Congress figures it's to his or her interest to work it up. That's why I go back again, if you don't teach this stuff in school, it’s going to keep going on and be cyclical.
Paulson: Let's talk about a fairly recent controversy involving a radio personality, Dr. Laura (Schlessinger), a television personality. Boycotts organized against Dr. Laura, and yet you've spoken up and said, "Now, wait a second. Now, what she has said on the air may be disagreeable to many of us, but we shouldn't be boycotting her."
Hentoff: Boy, that's a perfect example of people not understanding the boomerang effect. Harvey Silverglate, who's a very good free-speech, civil liberties, civil lawyer in, in Boston, wrote a piece in The Boston Globe saying the gay groups who were trying to get her off the air — and that's what they were trying to do. Sure, they wanted to boycott the sponsors — the sponsors to get off, and they were very successful that way. They managed — they've managed, by the way, to pretty much cripple her television show. She's losing stations. What they don't realize is that sooner or later, there'll be a gay commentator who will be saying things offensive to so-called mainstream groups or right wing groups, and there are any number of people in organizations that are going to start their boycotting. This happened to Ed Asner. There was a very good CBS entertainment prime-time show called "Lou Grant." It was the best newspaper show I’ve ever seen, but Ed Asner, who played Lou Grant, supported Cuba under Castro. He had various other "progressive" points of view. They were so successful in getting sponsors to drop off the show that the show died. Once you start going down that slope, it ain't slippery. It goes right down. And I try to argue that point with a number of the gay people I know and that I, that — whom I wrote about. They get so caught up in their own insistence that "Certain speech cannot be allowed," that they eventually get punished, too.
Paulson: Look at a situation where you — if you had a columnist who wrote provocative content that was frequently anti-Semitic and, and racist in content — and clearly, there is an audience for some of that —
Paulson: — thinking in America today, and we would hope it's a small audience, but there are people who would embrace that thinking — and you object to that, and you feel like you don't want your children reading that hatred, and you don't —
Hentoff: I’d rather have them read it so we can talk about it.
Paulson: So, you would not endorse an economic boycott? You think that boycotts themselves are inappropriate?
Hentoff: You have a right to boycott. That's free speech. But when Cesar Chavez and the farm workers told us what grapes and lettuce we shouldn't eat, my kids and I would be very careful about that stuff. Floyd Abrams, the First Amendment attorney, said even that, though, is boycotting ideas, but I think that's OK. But it's — I blame the people who yield to the boycott more than I do the boycotters. The gays had every right to try to get these sponsors — what the — was — why did the sponsors cave in? Because they don't care about the First Amendment either, but what was dangerous, I think, is something that came up recently in terms of getting people to get so involved with the superiority of their own identities and thereby shutting off other speech and other thought. There's a brilliant black teacher in Brooklyn, teaches dramatic — you know, theater. She got very good ratings from her principal, from the community, superintendent. Then she got the idea to tell her black students, "Don't call yourselves Americans. From now on, call yourselves Africans." Then the roof fell in. There'd been all kinds — she's been harshly disciplined. There have been demonstrations by Khallid Abdul Muhammad, that eminent civil libertarian, and other groups. What struck me was, the discipline was wrong. What should have been done — if I had been the principal — you may remember a case out of North Carolina, I think. Kid goes to school around Christmastime. His father had given him a jacket with the Confederate flag stitched into the back. The principal meets him at the door — she knew he was coming — said, "Go home." A very bright, young ACLU attorney said to her, "Don’t do that. Bring him into the school to have it discussed in the class. Have it discussed in all the classes. Then we'll go into the auditorium and let, let them hear all points of view." If I’d been that principal in Brooklyn, I would have had — I would have gone into the classroom, not to upbraid her, but to ask her and the kids, "Think this through. Are you really saying, ‘Renounce American citizenship? Don't vote any longer, even if Al Sharpton is running for mayor? If you get into some hassles with the police, forget the Fourth Amendment. Forget going to court getting a civil liberties lawyer, because you're Africans, right?’" And maybe then there'd be some decent educational outcome from this. If you punish the teacher, you make her a martyr, and what do the kids learn? That the teacher is punished from speech. It goes all the way around to no effect.
Paulson: In the few minutes we have left, I want to put you on the spot in terms of the future of the First Amendment. We have this extraordinary thing called the Internet now, and it's, you know, it's amazing that five years ago, really —
Hentoff: Oh, yeah.
Paulson: — the World Wide Web didn't exist. We have a generation of young people who go on and express themselves freely around the clock, around the world.
Hentoff: Oh, yeah, not only youngsters.
Paulson: Well, that's true, but for the next generation, the generation accustomed to that kind of freedom —
Paulson: — does that bode well for the First Amendment?
Hentoff: I think it should. Unless some of them are so involved with identity politics, identity gender, that while they — they're enjoying and celebrating their own right of free speech, they will then go on to be like the opponents of Dr. Laura and say, "That's good for us, but other people shouldn't have the right to, to do that on the Internet." And, if they're really dumb, they’ll get their legislators to start censoring the Internet, but otherwise, the Internet is, is a great possibility.
Paulson: Thank you for joining us today.
Hentoff: Thank you.
Paulson: Always great to have you here. Our guest today has been Nat Hentoff. I'm Ken Paulson, back next week with another conversation about the First Amendment, the arts, and American culture. Hope you can join us then for "Speaking Freely."