How do we know if the First Amendment is working? Karen Tumulty, deputy editorial page editor for the Washington Post answers, “If it makes us uncomfortable—and more importantly, if it makes us think.” A new book by a First Amendment law scholar analyzes that amendment and why we should welcome both the discomfort and the freedom it means for all of us.
Our Constitution expresses many precious (and a few not so precious) rights, but the First Amendment is the one we should worry most about. It reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Some of the words in the Constitution that I wouldn’t miss start with the electoral college and the two senators per state provision . But the First Amendment's protections are the bedrock of our democracy. Its words ensure our rights to speak, publish, protest, pray or not pray—and those rights protect our system of free and fair elections too.
Conversations Commemorating Hugh M. Hefner’s Legacy
of Free Speech and Free Press Values
By Stuart N. Brotman
With an Introduction by Christie Hefner
University of Missouri Press
One of the most committed supporters of the First Amendment in modern times was the late Hugh M. Hefner, founder and long-time publisher of Playboy magazine. A new book by Stuart N. Brotman, professor of communications law at the University of Tennessee, explores Hefner’s commitment to free expression through a cache of Hefner documents and conversations with eight leading free speech and free press scholars and advocates.
In a recent event at the American Writers Museum, Brotman presented an overview of his research and the processes he used in developing his manuscript. He was joined in conversation by John Palfrey, president of the MacArthur Foundation. The one-hour conversation is available to view here.
Brotman described how he was able to gain access to the massive scrapbook collection stored in a Hollywood warehouse. Hefner clipped and pasted a chronicle of his personal and professional life from his high school days (at Steinmetz High School on the northwest side, also my alma mater) to his death 75 years later in 2017 at the age of 91. He’s recognized by the Guinness Book of World Records for having the largest scrapbook collection in the world—the 3,000 leather-bound books total more than 300,000 pages. Hefner may be best known as the founder of a magazine that dealt with sex and masculinity, and as the owner of the Playboy Mansions (the original on State Parkway in Chicago) where Playboy bunnies and their admirers frolicked. But his support of free expression was a key element of his professional life.
Hefner’s daughter, Christie Hefner, a long-time board member of the American Civil Liberties Union of Illinois, is the author of the foreword to Brotman’s book. She describes her father’s Playboy philosophy, that progress requires outdated ideas be replaced by new and better ones, and that all lines of communications be kept open to ensure that happens. She notes that the Playboy Foundation was established in 1964, to protect those rights. In 1979, the Hugh M. Hefner First Amendment Awards were established to recognize individuals and their efforts to protect the First Amendment. The awards have honored more than 150 people, including high school students, teachers, journalists, librarians, and lawyers. (The book includes a list of the award winners.)
Brotman recounts how he adopted Hefner’s format for the “Playboy interview” for his long-form interviews with the eight First Amendment figures in his book. He was able to study Hefner’s approach because Hef detailed his process and approach for his interviews in his voluminous scrapbooks. The interviews are “long and searching conversations” with people from all walks of life; many of them held views that did not align with his own views or business interests. The interview subjects included anti-gay rights activist Anita Bryant, segregationist George Wallace, conservative author William F. Buckley and American Nazi party founder George Lincoln Rockwell. And plenty of feminists, like Betty Friedan, Germaine Greer, and Camille Paglia.
Brotman, whose work was supported by the Hugh M. Hefner Foundation, began his process with intense reading in court cases and the published works of each subject; his goal was to speak with each about their personal and professional views on free speech and free press. The book’s first interview is with Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago law school. Stone is author of a long list of books on constitutional and First Amendment law.
After asking Stone to talk about his student experiences in antiwar protests at the University of Pennsylvania, Brotman leads him to talk about working as a clerk for Supreme Court justice William J. Brennan Jr.. Among other cases, he worked with Brennan on the court’s opinion in Roe v. Wade in 1973. Later in the interview, Stone describes key cases in First Amendment law, such as the 1969 case, Brandenburg v. Ohio, which adopted the earlier opinion by Justices Oliver Wendell Holmes and Louis Brandeis that speech that actually violated a law could not be prosecuted unless it presented “a clear and present danger” of grave harm; the important concept pertains to speech in the public arena that challenges government policies. The 50-page interview allows Brotman and Stone to meander through many First Amendment issues in both a personal and professorial way. It’s a good example of how the Playboy interview approach can illuminate both the details of an issue and a subject’s personality and professional manner.
Brotman’s book is not a textbook; it takes a magazine-like approach to exploring these legal issues and the people who have studied and lived with them for years. The interviews are highly readable and can be browsed or read in their entirety.
Brotman’s other interviewees are:
Floyd Abrams, an expert on constitutional interpretative law as it relates to the First Amendment and free speech. He is a visiting lecturer on law at Yale Law School and served as the William J. Brennan Jr. Visiting Professor at the Columbia University Graduate School of Journalism.
Nadine Strossen, the John Marshall Harlan II Professor of Law Emeritus at New York Law School. She was president of the American Civil Liberties Union from 1991 to 2008.
Burt Neuborne, the Norman Dorsen professor of civil liberties emeritus and founding legal director of the Brennan Center for Justice at New York University School of Law. He’s one of the nation’s foremost civil liberties lawyers.
David D. Cole, the national legal director of the American Civil Liberties Union and the legal affairs correspondent for The Nation.
Lucy A. Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland. She was executive director of the Reporters Committee for Freedom of the Press 2000-2012.
Bob Corn-Revere, a lawyer who advises clients on media, communications and information technology law. He’s a partner at Davis Wright Tremaine LLP in Washington DC.
Rick Jewell, the Hugh M. Hefner Professor of American Film Emeritus at the University of Southern California School of Cinematic Arts, where he taught classes on film history, film censorship and film genres.
Stuart Brotman is the Inaugural Howard Distinguished Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville. He has served in four Presidential administrations on a bipartisan basis and is the author of Communications Law and Practice.
The First Amendment Lives On is available from the University of Missouri Press and from booksellers.
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