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'So to Speak' podcast transcript: Morris Ernst, Free Speech Renegade

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations.

I am, as always, your host, Nico Perrino, and today I’m joined by Professor Samantha Barbas. She is a professor at the University of Buffalo School of Law, and we’re here to discuss her new book, The Rise and Fall of Morris Ernst, Free Speech Renegade.

I really enjoyed it because, as you know, a lot of our listeners, I’m big into the history of the men and women who advocated for robust free speech protections throughout America’s history and kind of lessons they learned in the course of shaping First Amendment law.

Of course, I made the documentary about former ACLU executive director Ira Glasser, sitting behind me on that poster. We’ve interviewed his predecessor, Aryeh Neier, on the show. We’ve also interviewed or covered the lives of folks like David Goldberger, Hayden Covington, Martin Garves, Nadine Strossen, and David Bau, Louis Brandeiss, and many more.

But we’ve never covered or let alone mentioned Morris Ernst, and I’m a little ashamed to say that I hadn’t even heard of him before seeing an article about Professor Barbas’s book.

And here’s the thing about Morris Ernst: Apparently he was a hugely influential liberal lawyer and public intellectual in the first half of the 20th Century. He was integral in building up the ACLU, although he liked to claim he was a founder. As Professor Barbas’s book makes clear, he was not a founder, but he came in shortly thereafter. It was founded in 1920.

But he was a founder of the National Lawyers Guild. He was friends with Louis Brandeiss and FDR. And importantly for us, he was a free speech champion, almost singlehandedly eating away at obscenity restrictions and litigating the famous Ulysses case. He also worked diligently to free the [inaudible] [00:02:05] medium or radio and fought admirably for the rights of speakers of all kinds.

But as the good professor’s book title alludes to, The Rise and Fall, I should say, he was a strangely conflicted man, which explains in part why I might have never heard of him in the same way that I have and many others have heard of the ACLU’s founder, Roger Baldwin, for example.

Ernst was a staunch anti-communist and sometimes a red-baiter, a close confidant of J. Edgar Hoover, of all people, an unofficial PR flack for the FBI. He was a defender of libel law, a proponent of mandatory disclosure laws, and bizarrely late in his life became a crusader against sexual permissiveness that was part of the culture in the 1960s and ’70s.

And when I asked Ira, who as you all know is kind of a mentor of mine, about Ernst, he said that he was not well thought of by he and his contemporaries who knew him because, as the book makes clear, it was during Aryeh Neier, Ira’s predecessor’s time in the mid-’70s that the ACLU got the hands on their FBI file and in there discovered that Morris Ernst was passing off meeting minutes and giving him tips about things that were happening within the ACLU.

So, it’s a fascinating story. As the book makes clear, Ernst, who was like a tireless self-promoter, tried to get people to write biographies about him during his life. Apparently there was no interest, but Professor Barbas, you did it, and why? Why did you decide to set out on this journey?

Samantha Barbas: Nico, your summary of the book is so great, I don’t even know if I have anything left to say after your recap there. But just about why I decided to write on Morris Ernst, so I’m a legal historian, and I had worked on history of First Amendment law for many years. And I noticed that this guy’s name was on all of the briefs in the major cases, and he had written all the major books in the field, and I wanted to know, who the heck is this Morris Ernst?

So, I found that there was no biography, and I did a little research and found that he left a massive trove of personal papers to the University of Texas at Austin, 600 boxes. And to me, this represented a challenge. I’m a historian. I’ve done archival work in the past, but never have I had to tackle 600 boxes.

So, I set out to investigate the career of this man, who as you said was so important in the history of free speech, in eliminating literary censorship, but also as a fascinating character with a contradictory personality. It was just a delight to try to figure out what made this man tick.

Nico: Yeah, I can imagine there were 600 boxes because, as you write in the book, he almost published a book a year at the end of his life just kind of summarizing his diaries, or maybe it was just his diary entries. He was a prolific writer, although early in his career it sounds like he didn’t like to actually do the writing. He just liked to have other people do the writing for him.

Samantha: That’s a very revealing fact about Morris is that he was a publicity hound. He had to have his name in the spotlight. So, he was putting out writings constantly, even though he didn’t have time to do the writing well. So, in the latter part of his life, he was dashing off hundreds of thousands of words a year, if only just to keep his name in the headlines.

Nico: So, I wanna talk a little bit beginning here about the founding of the ACLU. As I mentioned, Morris was not a founder, but he came in shortly thereafter and was a general counsel for many years.

And in many ways, the history of free speech in America is tied up with the history of the ACLU, and the history of his work is tied up with the history of the ACLU.

As many of our listeners know, the ACLU, founded in 1920, first kind of began as the American Union Against Militarism or many of its founders were there, and then it became the National Civil Liberties Bureau and was really founded to be an advocate for free speech. Its first report, I think, was the – annual report was The Fight for Free Speech. Its second was, I think, You’re in the Fight for Free Speech.

And as you write in the book, it was around this time that many liberals began to see the undemocratic dimensions of majority rule and would discover the First Amendment as a principle for advancing human freedom.

And in the ACLU statement of purpose, it says there should be no control whatever in advance over what any person may say. There should be no prosecutions for the mere expression of opinion, however radical − and this surprised me – however violent. And you write in the book that although it defended all guarantees in the bill of rights, its primary concern was freedom of speech.

And another thing that surprised me is that rather than changing the law through the courts, the ACLU’s initial purpose was focus on changing public opinion in an effort to render law irrelevant and unenforceable, as you write in the book.

So, it was in this context that Morris Ernst got involved with them, but he’s mostly known for literary censorship, but that seemed to be not too much of the interest of Roger Baldwin and the other ACLU founders. Was it not?

Samantha: That’s exactly right. So, as you say, the ACLU was founded in 1920. There had been a predecessor organization, the National Civil Liberties Bureau, that was really oriented around defending the victims of government crackdowns on dissent during the World War 1 era.

Roger Baldwin’s focus was on political speech, right, speech dealing with traditional political issues, labor reform, criticism of the government. Baldwin didn’t think that literature, film, theater, other types of artistic expression were political, right? They were not at the core of the First Amendment’s protections, and therefore the ACLU shouldn’t really get involved in literary censorship, which of course was rampant at the time, right? Books were banned. Theater performances were shut down on grounds of their purported obscenity.

Morris Ernst was really the ACLU leader who comes along and says it’s important to protect freedom of expression in arts because literature, theater, film, they contain important ideas, and we all benefit from hearing those ideas and seeing those performances, and this is a critical issue that the ACLU should take up, and it eventually did. In 1929, it created a National Council for Freedom from Censorship, but it took Ernst to push the organization in that direction.

Nico: Yeah, as you write in the book, Roger Baldwin was a bit of a Victorian of sorts almost in how he viewed expression. He was kind of – he was a rich guy, and he had kind of a rich man’s sensibilities.

Samantha: Yeah, Roger Baldwin was the child of kind of elite aristocrats in Boston, and Baldwin was educated at Harvard. As you say, he was a very proper individual who was sort of prudish. Morris Ernst always characterized him as kind of squeamish when it came to sex. Now, Morris was the complete opposite. He loved to use four-letter words in mixed company and tell dirty jokes, and he was absolutely uninhibited.

But Ernst always felt that it was Baldwin’s personal sensibilities that led him to not want the ACLU to be involved in censorship because he just didn’t think sex was something that should be talked about in public.

Nico: How did Morris Ernst first become aware of the obscenity landscape and the effect it was having – because he went on to write the leading book on obscenity law. I think it’s called To Pure or To the Pure.

Samantha: Yeah, yeah. So, censorship was flourishing in the United States in the 1920s. And as I describe in the book, the kind of reigning test for what was obscene was called the Hicklin Test, right? So, something could be obscene if it had a tendency to corrupt the most vulnerable person into whose hands the material may fall, so essentially children. So, if a book had a tendency to corrupt a child, then it could be banned, and the writer and the bookseller could be punished criminally; they can be fined and jailed.

So, Morris was called on in 1926 by a friend at his law firm to represent a struggling author of a very unremarkable book called What Happens? There’s no reason why anyone should know about this book, but it was his first novel, and it had been condemned.

And Morris went to court to try to protect this author, and he lost terribly. He was appalled about the standard of obscenity that was used, which was so absurd, and he was also appalled by the conduct of the jurors in the trial who claimed to be disgusted by mentions in the novel of sex and drinking, and yet the jurors would read tawdry tabloids during the court intermissions.

And Morris got so angry that he decided to study obscenity law. He was gonna master it, he was gonna defeat it, and he wrote a book called To the Pure in 1928 that became kind of like the most important writing on obscenity. It set him out as an expert in the field, and then all the book publishers started calling on him because they wanted him to defend them in court.

Nico: And then what maybe he’s most known for is the Ulysses case, and this is James Joyce’s famous book. It’s a stream of conscience, kind of groundbreaking when it was written, but it was banned in the United States, if I’m not mistaken. I didn’t know all of the background, for example, that it was a test case that they almost forced on the government to take, right?

Samantha: Yeah, so Ulysses was published in Paris in 1920, and it was almost instantaneously declared obscene in the United States. Now, it didn’t mean people weren’t reading it in America, right? The book was circulated kind of like contraband. It’d be in these brown paper jackets, and it got a certain amount of repute. It was regarded as a classic.

And by the early 1930s, Morris had won so many censorship cases that he thought it was time to take on and liberate the most famous and celebrated banned book in America, which was Ulysses.

Nico: Yeah, it was a white whale.

Samantha: So, he was gonna start the test case, and the way this was gonna work was that the books would be imported from Paris, and under the tariff laws at the time, customs officials had the authority to seize obscene books and destroy them. So, presumably the customs officials would seize the book, Morris would challenge the seizure, and then they would have this test case.

But what happened is they sent the books over from Paris on a ship, and the customs officials wouldn’t seize it at first. They said, “So many people have tried to smuggle this book in that we don’t even pay attention to it anymore.” And so, Morris demanded that they seize the book, and they did, and then he started the proceedings.

And he was such a brilliant lawyer and such a showman. He orchestrated a great test case that of course resulted in liberating Ulysses.

Nico: Yeah, let’s talk a little bit about Ernst and his public persona at this time. Like I said, I’d never heard of the guy before I read about your book in Ron Collins’s First Amendment News. But it seems to me, as I talked about at the introduction there, that he was a huge public intellectual. You would think of him on par with a William F. Buckley or a Christopher Hitchens or, you know, of his day. Is that right?

Samantha: I think that’s absolutely right. He was a celebrity. He was like the kind of person we’d see today on CNN. He was a talking head. He had opinions on not just free speech but a number of different political subjects. He was kind of a swaggering guy who wore these pinstripe suits and talked in a tough and gravelly voice. He was really a personality, but he was absolutely a household name during this heyday in the ’30s.

Nico: How much of that was a tactic to advance his legal practice or his personality, or was it both?

You write in the book – I’m gonna quote a passage here: “A legal realist, Ernst rejected the notion that there was anything rational, logical, or scientific about judging or the practice of law. He said, ‘The law is nothing more or less than the pressure of public opinion at any particular time on particular judges.’

“He continues, ‘There is only one way I know of which by a judge can act, and that is to make up his own mind on the basis of what his nurse or his mother told him and on his economic background and prejudices and come to his own conclusions, and then he goes to the old law books of 1878 or 1802 in order to justify the conclusions which he has reached in his prior thinking.’”

Now, if that’s the opinion of Ernst, he almost needs to work in the court of public opinion, as he does, to achieve the victories that he did.

Samantha: That’s absolutely right. I mean, Morris Ernst was kind of a cynic about the law, right? His view was that the law – the decisions in court cases really reflected what the judge had for breakfast more than any kind of logic or principle, and that could work to Morris’s advantage, right? If he could sway public opinion, if he could change the judge’s mind, then he might have greater success.

So, he would do things that I think a lot of lawyers would consider shameless. For example, he had a lot of friends in the media. One of his best friends was Heywood Broun, who was the most popular syndicated columnist of his time. And he would plant favorable information about his clients or his cases in these news columns in an attempt to shift public opinion and then shift the outcome, and that actually worked. So, not being so technical and rule-bound, that was like his greatest skill.

Nico: Yeah, I’m actually reading Robert Caro’s The Power Broker about Moses right now, another New York figure, and it struck me because I was reading your book simultaneously. It’s like a lot of the same tactics, like working behind the scenes to shape media coverage, to get what these men wanted. In one case, it was a legal victory. In another case, it was building a road through a neighborhood in Long Island.

One of the other things that struck me about your book – and this is maybe getting to the broader themes of the history of the ACLU and just the free speech advocates at the time – they were defenders and users of defamation law, which anyone who’s familiar with the First Amendment bar right now, especially if they work in media law, in some cases to join some of these professional associations you need to agree to not take plaintiffs in defamation lawsuits. It’s seen as kind of like an attack on free speech.

But Ernst had no, as you write, no problem quashing speech that criticized him. There was one example when the Chicago Tribune, you write, printed a series of articles reporting a speech made by a member of the military intelligence association that accused the ACLU of being influenced by Russia. The ACLU threatened to sue for libel. So, it wasn’t just Ernst. It was also the ACLU was using this as a tactic to shut down its critics.

It just – it’s not something that I could imagine the ACLU or any other free speech advocate advocating today, even as many of them defend defamation law in certain contexts, although there are some like Nat Hentoff who didn’t like it in any context, and I think Hugo Black was one of those, as well.

Samantha: Yeah, Morris was not an absolutist. He thought that false and malicious and defamatory speech could be punished consistent with the First Amendment.

About the ACLU using defamation law, they seemed to do it occasionally in the early years, but it wasn’t like a regular tactic like it is today with some figures suing everyone for libel right and left. And I think they did it not because they wanted to win and get money from their critics, but really as a way of making a public statement, like we wholeheartedly disagree with what you’re saying about us, what you’re accusing us of being.

And in most cases, the critics were accusing the ACLU of being a communist front organization, and it was very important for the leaders of the ACLU at that time in the environment to disassociate themselves from communism.

Nico: Yeah, because communism was the big fear at the time. Of course, you had the revolution in Russia in the 1910s. And how much of what they were being accused of was true? How many of the members were communists? How many of the leadership were communist? How much concern was there that was legitimate, would you say?

Samantha: Yeah, so I think in the 1930s, there was one very openly communist-affiliated member of the ACLU board of directors, Elizabeth Gurley Flynn. There were some on the board who were associated with so-called front groups, groups that weren’t actually part of the communist party but that had loose affiliation that were progressive groups. So, it’s definitely not the case that the ACLU was populated with communists.

But a lot of conservative critics − the House on American Activities Committee that was started in 1938 had really focused their wrath on the ACLU, which was a liberal organization, progressive organization, but not a communist organization. But the critics liked to conflate communism and liberalism, and that was very dangerous for the success of the ACLU, as it wanted to become a more mainstream organization, and it couldn’t do so if it were accused of communism.

Nico: Yeah, you write in your book that although many of the measures they called for were redistributed, progressives at the time accepted industrial capitalization and sought primarily to control and ameliorate it. So, these I’m assuming are the sort of progressives who were within the ACLU.

Samantha: Yeah, the progressives of the ACLU, they span a variety of positions on the political spectrum. There were those who were in favor of radical labor movements. There were those who did support capitalism wholeheartedly. There was a range of views on free speech. There were conservatives on the ACLU as well, right? It didn’t limit membership by partisanship by any means, but generally it was characterized as a liberal-progressive group.

Nico: Now, Morris did not like communism; he did not like communists. He was, as you write in the book, outraged by the seeming hypocrisy of liberals who professed to stand for democracy and civil liberties, yet refused to condemn soviet repression.

And that might actually be – I don’t know if that’s a quote from you or from him, but that’s what’s in the book. It seems to reflect his worldview pretty well. And that seems to come through from him early in his career but seems to go into turbocharge after his experience with the National Lawyers Guild. Can you talk a little bit about that?

Samantha: Yeah, so somewhere around 1935, Morris Ernst becomes a staunch anti-communist, and he comes to believe that communism as a philosophy is incompatible with civil liberties. He becomes very upset with communist-affiliated individuals who are joining organizations that he’s involved with, like the National Lawyers Guild, which was an organization of progressive, pro-New-Deal lawyers that he founded.

And also he felt communists were joining the ACLU, and he feared that they were creating factions in the organization, driving the membership apart, subverting the groups to anti-democratic goals and, most important, he felt that the communist sympathizers were trying to push him out of his leadership positions, and he felt very threatened.

So, he sets out on a campaign to purge these organizations of their communist members, and that takes some disturbing forms on the ACLU when they actually ousted Elizabeth Gurley Flynn because she was a communist party member.

And then Morris, after the Second World War, gets in really with J. Edgar Hoover, the FBI director, and assists him with the anti-communist, anti-radical crusade. And I think it’s safe to say that Morris Ernst’s public career really declined at that point, and he began to lose his friends in liberal circles.

The ACLU turned on him because he had turned on the ACLU. He was naming names. He would tell Hoover, “This person in the ACLU is gonna criticize you now.” He would forward Hoover correspondence that he had received from ACLU colleagues, and it was a total betrayal of this group he had helped to form and everything that he stood for. So, it becomes the main cause of his life in the latter part of his life.

Nico: Yeah, it’s just odd. The way it kind of comes through in the book is he almost hero-worshipped J. Edgar Hoover. He would say he loved him, as you mentioned, shared advice, gossip and suggestions, meeting minutes, alerted him whenever the ACLU planned to criticize the FBI.

And then he was completely devastated later in his life when J. Edgar Hoover abandoned him. I believe it was surrounding some sort of very complicated situation I still don’t quite understand, involving the Dominican Republic and assassination, but J. Edgar Hoover refused to even talk to him after that.

Samantha: Yeah, Morris had this weird thing in his life where he always felt he had to have a boss, like some kind of authority figure who he was trying to please and he was looking up to. And for a long period, it was FDR. Morris worked with FDR on various matters. After FDR’s death in 1945, he kind of turned his affection or admiration to Hoover.

And he would barrage Hoover with these letters saying, “Can I help? You are the great fighter against communism. What can I do to assist you?” I read all of this correspondence, which was obnoxious and rather disturbing, like the obsequious nature of it. And Hoover sent back letters. I never knew if they were really written by Hoover or one of his minions.

At any rate, they kept up this friendship, friendship-alliance until the late 1950s when Hoover abruptly cut off Ernst because Ernst had done some truly shocking and unsavory things, such as the defense of the Dominican dictator that you alluded to, which was something that no one could understand. And even Hoover believed that Ernst was a liability, so he cut him off.

Nico: A bizarre situation and, as I mentioned, the next few generations of ACLU staffers and affiliates seemed to have kind of tried to distance themselves from Ernst and his activity as a result of the discovery during Aryeh Neier’s tenure in the mid-’70s of this correspondence.

I wanna rewind a little bit, get back to kind of what we were talking about with the founding the ACLU and its purpose, and fast-forward to the FDR and New Deal administration because you write in the book, the ideas the ACLU championed virtually alone in 1920 were established law and public policy by the time that FDR came into power or because FDR came into power.

And it started to – its effectiveness, it’s almost like when you’re not the opposition party, you lose some of your tenacity. The credibility seemed to wane. There’s this phrase that I’d never heard before, but you write in the book. It says, “The ACLU, born in the First World War but died in the Second.”

Can you talk a little bit about the comparisons between the 1944 ACLU or whatever and then the 1920s? How did it evolve, and how did the landscape change?

Samantha: Yeah, yeah, that’s such a good question. So, the ACLU when it started was seen totally as a fringe organization, right, a bunch of subversives. And by 1945, so it had its 25th anniversary in 1945, and the celebration was held at a fancy hotel in New York. And Roger Baldwin commented, “We had once started out as a subversive group, and we have attained an unexpected respectability.”

Arthur Garfield Hays, another prominent lawyer, said, you know, in the old days, we used to go stand on the streets and try to protest and get arrested, and now we file briefs and governors speak at our dinners.

So, the organization had totally transformed its image and its place in society, and a lot of that had to do – well, some of it had to do with the changing times. In the Great Depression, dissent became popular. A lot of Americans were unhappy with capitalism and the status quo. And so, it was no longer seen as heretical to want to dissent and criticize the government.

Additionally, I think the ACLU, it professionalized, it got more money, it got better organized, and it started to make connections with the New Deal Roosevelt administration, and Ernst was a very big part of that. He had a lot of friends in the New Deal, and he worked to bring ACLU issues to the agendas of these administrators.

Nico: Yeah, it’s just an interesting trajectory, and they’d won a lot of the victories that they hoped to win. I mean, they had nothing as far as the law went on their side when they started, First Amendment law, that is, and they were starting to get a lot of what they hoped they would get by the 1940s.

I wanna talk about one dispute, which was kind of interesting and maybe speaks to those tensions that the early ACLU had, you know, started as a lot of labor organizers were involved. The Henry Ford labor dispute incident really brought out the tensions that they might have had between their commitments to labor, but also their commitments to free speech.

Can you talk a little bit about that controversy, which Baldwin, Roger Baldwin went on to describe as the greatest controversy they ever had of free speech in the organization?

Samantha: Yeah, I think that was in 1937, 1938. So, the United Autoworkers was mounting an organization campaign in Henry Ford’s plants, and Ford was a vicious opponent of labor, and he sent out various communications that were dissuading workers from organizing, threatening them.

And I think the National Labor Relations Board condemned that as interfering with union organizing, and there was a conflict on the ACLU, whether that was legitimate to suppress Henry Ford’s speech. Did he have a right to voice the anti-union messages? And there was a more radical labor faction on the ACLU board that supported the NLRB’s actions, and then Hays and Ernst and others, I think, were in support of free speech.

But that, as Baldwin suggested, was kind of the beginning of these brewing tensions between free speech rights, labor rights, economic justice, civil liberties, all these issues that are still so conflicted in our culture.

Nico: Yeah, Ernst said of the affair – I believe it was of the affair – that some of the outstanding members of the union would forego all civil liberties tomorrow if they could have their kind of dictatorship.

I wanna shift to his later life now. We’ve talked about J. Edgar Hoover and the falling out with him. We haven’t really talked about Ernst’s work to free the radio, I guess, or his work with radio. But later in his life, he worked to restrict free speech protections on television. Is that not right?

Samantha: I don’t know if he actually did any −

Nico: Or he criticized the −

Samantha: He criticized.

Nico: − [inaudible – crosstalk] [00:32:16] freedom.

Samantha: Yeah, yeah. So, interestingly, by the 1940s, Morris Ernst had come to believe that the government was not the primary threat to freedom of speech. Rather, the biggest threat was concentrated ownership in the mass media industries.

He was troubled by the fact that large corporations, like the Hearst Corporation, were owning chains of newspapers and radio stations and movie theaters, and he felt that this limited diversity of expression, and it limited the marketplace of ideas.

So, he tried to have antitrust laws enforced aggressively to break up these media conglomerates, and he carried that through to the Age of Television. He deplored the fact that there were only three companies that were basically dictating what the public saw on television. He thought this was terribly dangerous for freedom of thought.

Nico: Yeah, another thing that might strike a lot of free speech people as being odd is he was also a big advocate for disclosure. He thought it was adding to the – and you hear this argument a lot – adding to the marketplace of ideas if you force people who participate in the marketplace of ideas to not be anonymous.

That could be through giving or other means, kind of strikes at the logic from NAACP v. Alabama, which presumably he would not have been in favor of the ruling in that case, given his position on this. It seemed like disclosure and bigness were the big causes later in his life.

Samantha: Yeah, exactly. On disclosure, I mean, Morris Ernst was known for kind of getting an idea in his head and then pursuing it to absurd lengths. So, in 1939, he came up with this idea for disclosure, and he thought this was a great way to kind of get rid of the communist menace.

So, communists and other fascist groups were putting out pamphlets through the US mail with noxious messages, and they didn’t have to disclose the identity of the sender or the funding sources of the organization.

And Morris believed that if they did have to put that information on the pamphlet and so forth, the public would become aware of who was supporting this message, and it would refuse to follow them. He thought that this was not problematic from a First Amendment standpoint because you’re just adding more information to the marketplace of ideas to help people make good choices.

He never thought that this would actually have a chilling effect insofar as limited anonymous speech, and that was the position of a number of ACLU leaders. They never endorsed disclosure. Morris took this before the board, like, 10 times in the 1940s, and they wouldn’t support the proposal because they knew that anonymous speech is very important for minority groups and unpopular groups to be able to get their ideas out.

Nico: Yeah, I mean, America was founded by anonymous speakers in a certain sense when you look at the Federalists, Anti-Federalists, Common Sense, the Declaration of Independence. They didn’t know who – no one knew who the author of that was for a while. So, yeah, there’s a long history there, and it’s interesting to see him take that position.

The other thing that’s interesting, and I alluded to this in the introduction, was his almost conservative prudishness that he adopted later in his life during the counter culture of the ’60s. I mean, this is a guy who whittled away at obscenity law for the first and for most of his career, who, as you describe in the book, after his first wife I believe passed away, he became kind of a playboy. And then in the counterculture of the ’60s, he’s just afraid of where things are going. He’s, like, “No, not this far, not this far.”

Samantha: Yeah, such an interesting turn in the ’60s, and Morris is now a very old man; he’s in his 80s. He came to believe that the freedom and permissiveness and sexual expression that he had fought for in his whole career had just gone too far. And he actually – I don’t think he supported government censorship, but he encouraged media producers to exercise a little more restraint, and the culture had just become too crass, he felt.

Nico: Yeah. In his later life, you suggest that there was probably some cognitive decline, but it was very – reading the last chapter of your book, it was just kind of sad. It was this guy who had such a full life in so many ways. He threw these wonderful parties, and he seemed to have a very intimate and loving relationship with his wife. His wife died long before he did. You talk about how his dinner guests went from dozens to one or two. He was no longer being taken seriously as a public intellectual. It seems like he became a mad scribbler almost.

And he recognizes this as well and kind of falls into a depression. I think you made a very interesting observation that he even opined on suicide, made an observation that depression and suicide comes from frustrated ambition more than anywhere else, and one can presume that later in his life he started to have frustrated ambitions. And then he didn’t even have a funeral, correct?

Samantha: Yeah, I’m not really sure what happened and the wishes of the family and how that played out. But it was very interesting that at the memorial ceremony, they did have an event at his law firm, no members of the ACLU, long-time members of the ACLU were present, and that was really a reflection of how he’d fallen out of favor with that group.

But, yeah, the last part of his life, it was kind of sad. He would do crossword puzzles and reminisce about his glory days. In some way, the wound was self-inflicted because he had been so extreme with his anti-communism and his outrageous support of government repression in the latter part of his life that his former friends wanted nothing to do with him.

And this not being the center of attention was enormously painful for a man who just thrived on the spotlight and was motivated by accolades, and so he did have a tragic end in many ways.

Nico: What themes can we pull from his life? What is the thing that strikes out to you as best encapsulating who he was and what modern generations of First Amendment lawyers and activists can learn from him?

Samantha: That’s a great question. Morris Ernst was – he was a deeply flawed man, but he was absolutely unafraid to follow through with his convictions, and sometimes that led him into bizarre ideas like disclosure, and sometimes that led to wonderful victories like his anti-censorship cases and the Ulysses case.

He never really worried terribly about having unpopular ideas. So, I would say Morris Ernst’s courage and conviction is the most inspirational thing about the man.

Nico: I imagine you knew a little bit of his career trajectory before you dove into those 600 boxes. What was the most interesting thing you found in there or the most interesting tidbit about his life that you can’t get from his topline Wikipedia, you know.

Samantha: There are so many things that were so fascinating. I think perhaps the most interesting – so, I really, as a biographer, wanted to figure out what made the man tick, right, what was the inner conflict or inner sort of personality dimension that caused him to do all of these things?

He was a massively successful corporate lawyer in New York. At the same time, he was general counsel of the ACLU and a pundit in writing these books. And what is the thing that makes him move forward?

And I found through looking at his early life − and that actually was very interesting, his childhood, his college career, his early legal career − that what is driving him forward is this need to be celebrated, and he has this deep insecurity in his life, feeling that he’s just not measuring up. Some of that comes from his family and his social circumstances as a boy.

But I found it most interesting to kind of track Ernst, the professional, the lawyer, the public figure, against Ernst, the man who really feels that he just wants to be accepted or known or validated. And it was just – that, I think, was interesting, looking at the personal letters and correspondence.

Nico: I know it’s not the theme of the book necessarily, but it was interesting to hear some about the man, especially the last chapter where you talk about – or where he, in one of his letters, I think, writes about his intimate relationship with his wife, breakfast in bed, snuggling in the morning. You talk about his woodworking and his adventures up in Nantucket.

You almost wonder how a man of that sort of stature finds time for all this, how he – I mean, was he regarded by his family as a loving and caring husband and father and attentive?

Samantha: Yeah, that’s something I really tried to figure out through the correspondence. Not everything, not all the letters had been preserved. But from what I could see, he cared very much for his wife, and he had three children. But he couldn’t be totally attentive, of course, because he was doing everything under the sun.

But you mention how he had a number of hobbies, and he had an estate in Nantucket. He had this amazing situation that is completely unimaginable for any lawyer today of going to his summer resort for three months a year with no interference and taking it easy for the entire summer, no work, no cellphones, no internet, just out doing his thing, and he had an amazing lifestyle.

Nico: Yeah, you hear that with some other people, too. I think it was – it might have been Louis Brandeiss who said, “I can’t work 12 months in 12 months, but I can work 12 months in 11 months.” Like, he took one month off during the year to kind of rest and relax.

And Ernst, as you write in the book, didn’t really ever hope to retire. He said he retired during the summer, but he never hoped to retire-retire. Have you heard from, after writing this book, any of his descendants? Has there been any renewed interest in him?

Samantha: Yeah, yeah, I did communicate with his granddaughter while writing the book, and I have heard from some of his other descendants and relatives, and I think they were very happy to finally get a biography of Morris.

Nico: Something he always wanted.

Samantha: Something he always wanted, and it was so interesting that I think there had been a number of previous attempts to write a biography, but the authors were put off because there was so much material and so many causes and cases to try to cover.

Nico: How long did it take you?

Samantha: It took me about two years and a number of trips to that archive in Texas.

Nico: Yeah, I couldn’t even imagine. Well, it’s a fascinating book. It’s not just a story of this man, but it’s also a story of human internal conflicts, but also a story of the early part of the 20th Century and some of the progressive causes that were happening in America at that time, as well as just American history in general, I mean, his lifespan, World War 1, the Great Depression, World War 2, and the counterculture of the 1960s. It’s fascinating, and I thank you for coming on the show and discussing it with me.

Samantha: Yeah, thank you so much for your excellent questions. This has really been a pleasure.

Nico: Yeah, and the book again is The Rise and Fall of Morris Ernst, Free Speech Renegade.

This podcast is hosted, produced and recorded by me, Nico Perrino, and edited by Aaron Reese. You can learn more about So to Speak by following us on Twitter at and liking us on Facebook at We take feedback at You can always email us.

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