Samantha Barbas

In The Rise and Fall of Morris Ernst, Free Speech Renegade, Dr. Samantha Barbas argues, “In the decades before World War II, no one did more than Ernst to extend legal protections to literature, art, theater, and movies” (pg. 2). She links his work to the concept of “the marketplace of thought,” drawing upon Ernst’s voluminous public and private writings to trace his legal and intellectual career. Barbas writes, “A biography of Ernst is long overdue… He left behind a massive collection of personal papers – 590 boxes of archival material, as well twenty-one published books and hundreds of other writings on topics ranging from the Supreme Court to obscenity to extrasensory perception” (pg. 5). She acknowledges that Ernst’s “penchant for exaggeration” requires reading the sources with a critical lens.

Describing the rise of the ACLU, Barbas notes events with similarities to those a century later. She writes, “In 1926, [Roger] Baldwin announced an aggressive campaign to defend free speech in education, which he described as the new ‘battleground’ of free expression. The American Legion, ‘Bible crusaders,’ and other fundamentalist organizations sought to control educational content as a means of promoting their conservative agenda” (pg. 73). According to Barbas, Ernst was committed to the cause of free speech. She argues, “To Ernst, freedom of speech not only protected the ability of unpopular speakers to express their ideas but also the public’s opportunity to hear them. The First Amendment safeguarded the public’s right to receive information – ‘the right to hear, the right to see, and the right to read,’ as he put it. This dimension of free expression was overlooked by ACLU leaders, with their traditional focus on the rights of speakers. Throughout his entire career, Ernst would espouse this view, arguing that it was only through access to the broadest range of information, including dissenting and minority views, that the public could engage in ‘democratic discussion’ of public affairs. Freedom of speech, he wrote, was as much in the words of the speaker as it was ‘in the ear of the listener’” (pg. 77). Several of Barbas’s chapters detail Ernst’s battle with federal, state, and customs censors. She describes the difficulty Ernst faced in his cases, writing, “The law was rigged in favor of the censors. It was nearly impossible to challenge an obscenity conviction in court… The government did not have to prove actual harm. The court simply had to believe that the material had a ‘tendency’ to corrupt youth. Adult reactions to a book, the work’s literary merit, and the actual readership of the book were irrelevant. Works were judged on the criterion of whether they were safe for children” (pg. 88). Ernst worked to change legal opinion such that works were judged according to contemporary mores rather than an imagined child audience.

According to Barbas, “By 1930, Morris Ernst was the main lawyer for the book industry in censorship cases and a pioneer of literary freedom… Ernst was a shrewd enough lawyer to know that First Amendment arguments wouldn’t succeed, given the law at the time – courts weren’t willing to broach the possibility that sexually themed material fell within the Constitution’s protections. Instead, he relied on the straightforward and commonsense argument that the Hicklin definition was outdated and that obscenity must be judged according to the ‘mores of the time,’ as gauged, in part, by the views of literary and other experts” (pg. 116). This same belief influenced Ernst’s opinion of the news media. Barbas writes, “Ernst, with his Brandesian philosophy, believed that when big companies dominated the channels of communication, the public was prohibited from accessing news from diverse perspectives, and the marketplace of ideas did not function” (pg. 147). Much of this foreshadows current battles regarding free speech, thus demonstrating the continued relevance of Morris Ernst to modern politics. For example, describing the conservative backlash to the New Deal and expanding civil liberties in the mid-1930s, Barbas writes, “Professional patriots, antiunion businessmen, and other traditionalists tried to stop the wave of radicalism that started with the onset of the Depression, encouraged by the liberalism of the New Deal. Congress was flooded with bills to curb free speech; state legislators enacted sedition statutes, and radical teachers were dismissed for their views” (pg. 186). This easily recalls current events in Florida, Texas, and elsewhere.

Foreshadowing modern media conglomerates, Ernst campaigned against the rise of corporate media control of the radio. According to Barbas, Ernst believed these companies “‘drowned out’ less privileged speakers. Just as the government during the New Deal had intervened in the economy to ensure more equitable distribution of wealth, it must correct imperfections and inequalities in the speech of the marketplace” (pg. 276). Barbas describes how the ACLU was not interested in this argument, but it did appeal to the Federal Communications Commission, though that stemmed partly from the Roosevelt administration’s conflicts with the press. Ernst continued this argument in his autobiography, The Best Is Yet. Barbas writes, “The increasing concentration of ownership and control of the media, he was certain, was decreasing the number of voices in the marketplace of ideas, with dangerous implications for democracy and freedom” (pg. 297). Ernst continued his battle against mass media well into his 70s (pg. 341).

Despite his efforts supporting leftist causes, Ernst supported and aided the anti-Communism of the right. Barbas writes, “Several forces contributed to Ernst’s increasingly fierce anti-Communism. Even before the Nazi-Soviet pact of August 1939, Ernst maintained that Communists were a dire threat to democracy and civil liberties. Joseph Stalin’s purges and show trials had made clear that the Soviet Union was a totalitarian regime on par with Nazi Germany. Ernst’s bitterness toward the Communists was also the result of his personal experiences… The slights and indignities he experienced at the hands of Communists and their sympathizers, who edged him out of organizations and challenged his leadership, hurt his fragile ego” (pg. 250). Ernst’s antagonism to Communists coupled with his ideas for disrupting corporate media through disclosure of ownership combined, bringing out the worst in him as well as an apparent about-face to his earlier civil libertarian views. Barbas concludes, “As he aged, Ernst became more zealous about representing ‘unpopular causes.’ Ernst’s unpopular causes were once civil liberties and free speech; they now included defending anti-Communism and the FBI, both unpopular causes on the left” (pg. 321). To this end, Ernst rather fawned over FBI Director J. Edgar Hoover, working as an unofficial fixer for the Bureau before his ego caused him to run afoul of Hoover.

Barbas’s work unflinchingly examines one of the most significant civil libertarians of the early twentieth century. Her style matter-of-factly details his work while placing his life and beliefs in their greater historical context. Further, this study of Morris Ernst reveals how many of the current debates in terms of free speech, its limits, the role of the government in declaring groups extremist and monitoring them, and even the impact of media conglomerates continue to play out decades after Ernst’s passing. Barbas’s study will appeal to historians, journalists, media studies studies and law students. The cross-topic appeal extends beyond academia, with her writing style making normally dense legal analyses accessible for lay readers. A great volume for those looking to learn more about free speech.… (mais)

A history of the growing American obsession with one’s personal image, both visually and as metaphor for value (as opposed to one’s character), and how that played out in legal protections for privacy and, ultimately, against commercializing a person’s image without her consent. It took until the late 19th century, for example, for mirrors to become common among the middle class, so people could check their images before leaving the house. Barbas identifies an unresolved tension between the ability to construct and control one’s own image and the ability to construct a self by learning about other people. Interestingly, in the early decades of the 20th century, the claims that a right of privacy awarded too much weight to emotional harms that weren’t in fact measurable in market terms weren’t persuasive, when similar ideas about what constitutes “real” harm were used during the very same period to eliminate older “heartbalm” torts such as breach of promise to marry. Instead of not considering emotional harm “real,” then, policymakers were really deciding what kinds of emotional harm would be recognized by law.

There was even a tort of “institutional insult”—a tort that could be committed by the employees of a railroad or other public service facility by disrespecting the plaintiff, usually a middle-class white woman. Meanwhile, tort law rarely recognized a need to compensate those same workers when they were physically harmed on the job. Barbas suggests that Southerners, in particular, resented railroad workers, who were perceived as Northern whether they were or not. The law of the personal image, then, is accident law’s “unexplored corollary” in the transition to modernity.

By midcentury, there was a more frank acceptance of the unstable and manufactured nature of the self among theorists. At the same time, there was an explosion of libel suits, often “strike suits” filed against successful creative works, including Gone with the Wind—numerous plaintiffs argued that various characters must have been based on them, and even if the portrayal wasn’t negative, it was embarrassing to be exposed to the national public. Again, skepticism developed among commentators that the people suing were truly harmed or truly felt injured (similar to current disputes about so called ‘callout culture’). The privacy tort, separate from libel, came into its own in the 1950s, part of an explosion of tort litigation more generally. Privacy suits were more easily won when brought by women, for whom modesty was more of a social priority. Barbas identifies a growing “claims consciousness” around images—even though most people didn’t sue over most insults, they began to perceive images as generating rights and justifying claims on others. By the 1970s, many once-private matters (marital violence, etc.) had become legalized, and a legal right to be compensated for image-related harms was part of that.… (mais)