OCTOBER 8, 2015
MY FIRST JOB at a law firm after graduating from Columbia Law School in 1969 was working with Charles Rembar. Everyone called him Cy.
Beyond his impressive legal career, Cy wrote three fascinating books, which have just been released in ebook format by Open Road Integrated Media. Separately and together, The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill (1968), Perspective (1975), and The Law of the Land: The Evolution of Our Legal System (1980), represent an illuminating and engaging look at the craft of practicing law, especially litigation, the convoluted development of the law itself, and larger issues confronting our constitutional democracy. His books read like an afternoon spent talking with a witty and irreverent observer of (and participant in) some of the most important legal and political controversies of our time, filled with keen insights and peppered with quirky asides.
Cy had also graduated from Columbia Law School, in 1938. After serving in the air force and as a lawyer for several New Deal agencies in Washington, DC, he opened a law practice in New York City. He soon became embroiled in representing his cousin, Norman Mailer, in controversies over the sexual candor in Mailer’s early works, The Naked and the Dead (1948) and The Deer Park (1955). In his charming and deeply personal introduction to The End of Obscenity, Mailer speaks of Cy’s
profound respect for the law which served to house the architecture of his ability to reason, that particular ability in him precisely to reason has become a force which approaches the power of a mighty muscle, for in close tactical argument and debate on any subject improvised at the drop of a coin, he is doubtless one of the world’s best and most brilliant quick reasoners.
That reasoning is on full display in The End of Obscenity, as he takes us behind the scenes in the series of highly contested legal battles he fought to free literature from the yoke of censorship. In addition to his cogent commentary, he has carefully selected excerpts from the transcripts of his trials and appellate arguments, which vividly illustrate how a talented lawyer deals with the vicissitudes of the courtroom.
Today it’s hard to believe that as recently as the early 1960s, acclaimed literary works, such as Theodore Dreiser’s An American Tragedy and Edmund Wilson’s Memoirs of Hecate County, were found to be obscene and were banned in the United States. In 1957, the Supreme Court of the United States set forth the modern definition of obscenity in the Roth/Alberts decisions.
The Alberts case was argued in the Supreme Court by another towering figure in First Amendment law, Stanley Fleishman, whom I also worked for, after I left Cy and ventured to Los Angeles.
The Roth/Alberts test was whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interests — that is, whether it has a tendency to excite lustful thoughts. The court reasoned that obscenity was not protected under the First Amendment because “such utterances are no essential part of any exposition of ideas.” Specifically, the court explained that “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”
Cy’s approach was to use this definition of material that could be constitutionally condemned as a definition of material that could be constitutionally defended. If a work that was “utterly without redeeming social importance” was obscene, then a work that was not “utterly without redeeming social importance” was protected by the First Amendment and could not be censored. Today, this may seem self-evident, but in the 1950s and 1960s it was revolutionary. As he puts it, “[i]f there is speech that may be suppressed only because it has no value, then it is only speech wanting in value that may be suppressed.”
The “trouble,” he adds, “was that no one agreed with me.”
Cy developed this essential idea into a winning legal strategy. The Lady Chatterley trials began in 1959 when Grove Press, an avant-garde New York publisher, released an unexpurgated edition of D. H. Lawrence’s controversial novel, which was, at the time, banned in the United States in all but a bowdlerized version.
Copies were detained by United States Postal Service authorities under the 19th-century Comstock Act. Cy defended the book in the post office’s administrative system by calling a series of highly qualified experts to testify to its serious literary value, but he lost. He immediately filed a lawsuit against Postmaster Robert Christenberry and won in the United States District Court. In 1960, the United States Court of Appeals for the Second Circuit affirmed. But when the government decided not to seek Supreme Court review, Cy was denied the chance to establish a nationwide precedent.
In 1961, Grove ran into much bigger trouble with Henry Miller’s Tropic of Cancer, which was facing censorship challenges in more than 60 cases brought against booksellers all across the country. Cy cooperated with the various defense lawyers and eventually won two appeals, one in Massachusetts and one in New Jersey. In 1962, Massachusetts’ highest court voted 4–2 that the book was not obscene using the redeeming social value test which Cy had been championing. But again the government decided not to appeal.
In 1963, G. P. Putnam’s Sons published John Cleland’s Memoirs of a Woman of Pleasure, better known as Fanny Hill. Cy defended the book in Massachusetts, New York, and New Jersey. In 1965, a member of Massachusetts’ highest court, who had voted in favor of Tropic of Cancer, switched sides and voted against Fanny Hill, resulting in a 4–3 decision against the book. Ironically, this defeat put it within Cy’s power to finally test his theory in the Supreme Court of the United States.
Cy’s dramatic description of his historic argument before the nation’s highest court in December 1965 mixes personal anecdotes with a detailed account of how he responded to questions from the justices.
He tells of spending a restless night before the argument, but not because he was anxious about the case. He stayed in a hotel room “that a ingenious management had contrived to heat to an unalterable ninety degrees,” but opening the windows “only confirmed the fact that the street alongside had become a motorcycle drag strip.”
Fortunately, his appearance before the Supreme Court went a lot better. Cy had spent six years honing his argument on redeeming social value. Of course, he knew the case law backwards and forwards. But he also had figured out what mattered to each individual justice and he skillfully responded to their questions.
Several members of the court had expressed deep concern in previous cases that unless they deferred to lower courts which had found material obscene, they would be overwhelmed by having to read all the alleged pornographic books and magazines that came before them. Cy decided to begin his argument by simultaneously solving that problem and advancing the redeeming social value test.
I am happy to say, Mr. Chief Justice, that I bring you a case in which it is not necessary to read the book. It’s not that we don’t want you to read the book — we urge you to read the book — we think it’s a good book. We do not think it will adversely affect your moral fiber. We do not think that you will find it deeply offensive, although if members of this busy Court have not had time to keep up with the best-seller list, you may find the subject matter a bit unusual.
Cy got the reaction he wanted. Justice Harlan inquired whether he had wasted his time because he read the book in advance and Justice Brennan asked for help because he had not read it. This was the opening Cy was looking for and he took full advantage of it.
[W]e have here a record in which there is an overwhelming demonstration of the kind of value that all counsel here today agree invokes the protection of the First Amendment. I would suggest that a possible answer to the administrative difficulties that the Chief Justice has outlined is that where you have highly qualified witnesses who come to court and stake their professional reputations on their analysis of the book and its values — where you have published reviews and critical essays, by people who have no interest in the outcome of the litigation, which also establish that value — then, on the record, the book is entitled to the protection of the First Amendment.
On March 21, 1966, the Supreme Court handed Cy the victory he had been seeking. By a vote of 6–3, the court found that Fanny Hill was not obscene. In various opinions issued that day in several different cases, five justices agreed that the First Amendment protected any book that had merit, even minor merit, regardless of it sexual content.
Cy had transformed First Amendment law.
Perspective (1975) is a collection of essays on a range of legal and political issues originally published in Life magazine, The New York Times Book Review, Esquire, the Village Voice, The New York Times Magazine, and The Atlantic. Following the attention he had garnered in the historic obscenity cases at the Supreme Court and the success of The End of Obscenity, for which he won the George Polk Award in journalism, Cy gained a wider audience, and he was invited on the Today show several times to discuss the notorious administration of Richard Nixon. If there is an overarching theme to these essays it is the serious threats to the United States constitutional system, and to freedom of the press, posed by the Nixon administration’s corrupt exercise of unwarranted executive power. These essays take on a timely importance in light of the ongoing debate over President George W. Bush’s manipulation of the press in the run-up to the wars in Afghanistan and Iraq, his unchecked use of executive authority to detain “enemy combatants” at Guantanamo and CIA “black sites,” and the widespread use of torture — and now the very same debates over President Obama’s defense of Bush’s conduct through the invocation of the state secrets doctrine, the unprecedented prosecution of whistle blowers, the continued indefinite detention of detainees, and the use of killer drones to assassinate suspected terrorists, including United States citizens, without charges and trials.
In his time, Cy was deeply concerned about what Nixon was doing to the country and he took every opportunity to write about it for public consumption. He accused Nixon of trying “to break down the judicial system by degrading it.”
In these essays, he examines the 1969 prosecutions of Dr. Benjamin Spock and Rev. Sloane Coffin Jr. for their antiwar activities; the battle over the publication of the Pentagon Papers, which Nixon tried to enjoin (and lost); the 1973 Watergate hearings; the Nixon impeachment proceedings and pardon by President Gerald Ford; and the deal between Nixon and Ford to restrict public access to the White House tape recordings. These are gems of observation and analysis, from one who deeply valued the Constitution and was outraged by attempts to dismantle it through a systematic abuse of power.
Cy brings his own perspective to these controversies, hence the title of this collection. He applauds the result in the Supreme Court decision refusing to allow the Pentagon Papers to be enjoined, but he criticizes the court for basing its ruling on the narrow prohibition against prior restraints instead of a broader defense of the First Amendment.
He argues that the Bill of Rights embodies the principle that the government cannot be allowed “to determine what one should say, what one should write, what the public should hear or read.”
The majority is not permitted to silence the minority, no matter how convinced of rectitude the majority may be. There is greater danger in suppression, the axiom implicit in the First Amendment states, than in the publication of what some of us, or most of us, or even almost all of us, believe to be dangerous or horrid.
With the crimes and corruption of Richard Nixon clearly in his cross-hairs, he declares that it is
undisputed history that the Bill of Rights was meant to protect the governed from their governors. If this intent is to be given effect, then as the power of the governors grows, the restrictions put upon them by the Bill of Rights must grow commensurately. Our present government is much more powerful than the government of 1791; it has great weapons at its disposal, not merely weapons of law enforcement but weapons designed to influence our minds. If the government’s power, through its own speech and press, has gotten stronger, then the people’s countervailing weapons must be made stronger. Otherwise the balance is upset.
Elsewhere, he challenges one of Nixon’s lawyers, James St. Clair, for wrapping himself in the platitude that “everyone is entitled to a lawyer,” when asked why he was representing Nixon. While Cy makes clear that in criminal cases indigents are definitely entitled to court-appointed counsel, he argues that in the circumstances of the Nixon impeachment, a lawyer should not be “reckless of the consequences” of Nixon remaining in office and should not hide behind “pietistic chanting of traditions of the law.”
Emboldened by the new freedom for the written word which he himself helped to secure, Cy crafts a delightful and incisive essay on “Bullshit.” It reads like an angry sermon as he not only condemns hypocrisy, but the hypocrisy of accusing others of hypocrisy. But he refrains from getting prissy.
The Founding Fathers would not have gained acceptance for our Constitution without a modicum of bullshit. Lincoln could not have freed the slaves without a good deal more. Franklin Roosevelt would not without it have made his economic revolution, nor got the country ready to disdain the glowerings of Hitler.
These essays offer the well-considered thoughts of a very smart man, with a strong commitment to reason and truth, and an abiding trust in people.
Truth is in general on the side of good, and those who would have a better world must these days more than ever stay on the side of truth. People are intelligent, and when they have all the facts before them, tend to make good judgments.
I miss Cy. We should all miss him. If he were writing today (he died in 2000), he would be exposing the bullshit so rampant around us.
In his third and last book, The Law of the Land (1980), he settles easily into his role as a legal historian without ever losing touch with his experience as a practicing lawyer. He delights in uncovering the arcane history behind fundamental aspects of the law. As he puts it: “At the law I am a professional (there is a certificate that says so), at history an amateur.” He’s interested in demystifying the origins of the Anglo-American legal system. For Cy, the law “lives, if I may say so one more time, not according to absolutes, but by degree and extent. Its task is to draw generally sensible lines within the infinite shades of circumstance that constitute our world.”
Given the censorship battles he had fought so effectively, he is very adamant that judges should expansively interpret the First Amendment’s guarantee of freedom of the press. The framers
were concerned with the spread of ideas, not with the particular machinery by which it was done. So films, radio, television, as they come into being, are considered “press” and receive the cover of the guarantee. Such holdings by our courts are not undisciplined extension of the rule of the First Amendment states; they are a strict adherence to it.
Here he purposely co-opts the word “strict” from the “strict constructionists” who then, as now, argued that the Constitution was restricted to its “original intent.”
As weighty as Cy’s commentary is at times, he never takes himself or his profession too seriously.
For centuries our lawyers, a priestly caste, used a mysterious tongue, composed of Latin, French, English, incantation and a bit of mumbling. These continue, more or less, to the present day — Latin less, English more, French absorbed, incantation down a bit, mumbling steady.
Cy’s chapters on trial by ordeal, the jury trial, equity, pleadings, the hearsay rule, expert witnesses, and the rights of the accused, are enlightening for lawyer and non-lawyer alike. And as history this book is timeless, worth reading today as it was 35 years ago. Cy relieves himself of the responsibility of writing an encyclopedia. “The aim, rather, is to take some features of our legal system — some of the most significant, perhaps; those apt at any rate to reveal its character and personality — and tell how they came to be what they are.”
When I joined Cy’s firm, he was representing William F. Buckley Jr. in his litigation with Gore Vidal arising out of their notorious attacks on each other during the 1968 Democratic National Convention in Chicago and their vitriolic follow-up articles in Esquire magazine. Cy hardly agreed with Buckley politically. But he was intrigued by the controversy and troubled by Vidal’s countersuit seeking to punish Buckley for his acerbic accusation that Vidal’s book Myra Breckinridge was “pornography.” Just before I left my job with Cy, we succeeded in getting Vidal’s lawsuit dismissed on First Amendment grounds.
Upon the publication of The Law of the Land, Buckley praised his lawyer’s book:
It is always a pleasure to read the prose of Cy Rembar, about whom a law professor remarked many years ago that if every lawyer wrote as he does, who knows, the Supreme Court might even understand the Constitution of the United States. All laymen will welcome this invaluable translation into English of what the history of the law is.
In these three books, every reader will learn something new about the law, politics, and the Constitution, and every reader will understand what they already know much better. As I reread them for this review, I felt conflicting emotions. I was so grateful that I had begun my legal career with such a brilliant and independently minded lawyer but I was also filled with regret that in my youth I had failed to take full advantage of the opportunity to get to know him more closely and to explore and debate the important ideas he examined in his writing.
Tracing my own 45-year career, I now see how much I was influenced by Cy without realizing it at the time. He pursued an active law practice largely devoted to defending the First Amendment while exercising his own freedom of expression by writing books and articles, much as I have tried to do. And more deeply, he taught me to use the law and my writing to challenge officials, high and low, who violate the Constitution and limit individual freedom.
But he also taught me never to allow the heavy weight of the law to drive out my sense of humor. Until I reread The Law of the Land, I had forgotten that I learned from Cy a story I frequently use at the beginning of speaking engagements to put an audience at ease about the reputation of garrulous lawyers who never know when to stop talking. As Cy tells it toward the end of his last book, a man was accused of biting off another man’s ear. The defendant’s lawyer was cross-examining an alleged eyewitness, who was unable to provide any damning testimony.
“That’s all very well,” the lawyer said, “but did you actually see the defendant bite off the plaintiff’s ear?”
“No, sir,” responded the honest witness, “I did not.”
But instead of stopping there, the lawyer asked: “Then how can you possibly testify that the defendant bit off the plaintiff’s ear?”
“Because,” the witnessed answered, “I saw him spit it out.”