So to Speak podcast transcript: Who was Hayden C. Covington?

October 14, 2019

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. As always, I’m your host Nico Perrino and I’m joined in FIRE’s D.C. office today by the regular So To Speak guest, Ron Collins. Ron, welcome to the show.

Ronald K.L. Collins: It’s great to be back, Nico.

Nico: Yeah, I should say welcome back to the show. For those of you who haven’t heard one of our previous episodes with Ron, he’s got a long list of credentials. He’s the co-director of the History Book Festival, which is a new festival, correct?

Ron: We’re coming into our third year in Lewes, Delaware.

Nico: And before that you were the former scholar at the University of Washington School of Law. You are the current editor of First Amendment News, which is now living on FIRE’s website, which you can register for First Amendment News to receive it in your email on our website.

Ron: Right. And it’s free.

Nico: Free and it’s one of the best resources out there for information about the First Amendment. He’s also the author of many, many books including the forthcoming First Things First – A Coursebook on Free Speech Fundamentals.

Ron: Yes, and it’s, I think, the least expensive college textbook. It’s an e-book and it’ll be under $5.00 replete with hundreds and hundreds of audio and video links.

Nico: And we don’t have the release date for that yet, right?

Ron: Coming soon, very soon.

Nico: Very good. He is, as I said, also a regular guest on the show. We’ve discussed many things from the Espionage Act to Lenny Bruce to – what were you on here last time discussing?

Ron: I think The People versus Ferlinghetti.

Nico: Yes, which is your most recent book.

Ron: That’s correct.

Nico: Well, Ron, thank you for coming on the show again today. I wanna talk about one of your most recent pieces of scholarship. It was in the FIU Law Review. What is that? Florida International…

Ron: Florida International University Law Review.

Nico: And it’s called “Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship”. So Hayden C. Covington, a name I hadn’t been familiar with before. I imagine from the title of your article not many people who work in First Amendment law are familiar with. But let’s just go over some of his accolades.

Ron: Yes, but just before we start, the vast, vast majority of professors in college and in law schools who teach constitutional law and who teach First Amendment law, the vast majority, I would say 98 percent, maybe 99 percent, maybe 99.5 percent, have never heard of Hayden C. Covington. It’s amazing.

Nico: It’s amazing for these reasons. He argued 44 cases before the Supreme Court of the United States and he won 85 percent of them. During one week in 1943 he argued 14 cases before the United States Supreme Court, which I don’t think the Supreme Court hears 14 cases in a given week anymore.

Ron: No, in actuality some of those cases were combined. But still, I mean even four cases is a major deal.

Nico: Even two cases in one week, unless you’re the Solicitor General, is pretty incredible. He’s responsible for a lot of the doctrine that are just a regular part of the First Amendment today including the incorporation doctrine, he’s responsible for that, the state action doctrine as applied to the First Amendment, the preferred position doctrine, and the least restrictive means doctrine. And he had a success rate before the United States Supreme Court higher than any man except former NAACP attorney and subsequent Supreme Court Justice Thurgood Marshall.

Ron: Right. And that’s only because Thurgood Marshall argued fewer cases. So if you actually look at the insane number of cases, it might have equaled or even surpassed him. There’s one thing I don’t know if you have in terms of what you were thinking about, but when he argued cases in the Supreme Court, he would come in a bright green suit with padded sleeves, a plaid red tie, and he would almost scream while he was speaking and never let a justice interrupt him at all.

Nico: Yeah, he was kind of a outsized figure, it seems. Six feet tall.

Ron: Right. Right.

Nico: And he liked to work the media from my understanding, as far –

Ron: He did, he did. And he also was somebody who literally and figuratively rarely passed up an opportunity for a fight, whether it was in a courtroom or on the street.

Nico: Yeah, he worked 18 hours a day.

Ron: Right, right.

Nico: Workaholic.

Ron: And then toward the end he represented a famous boxer in a trial.

Nico: Yeah, someone named Muhammed Ali.

Ron: Well, he was then Cassius Clay, but yeah, Muhammed Ali he would represent, yes.

Nico: And he didn’t represent him quite well, according to your article, but we can get to that. The Supreme Court cases aside, he also had 100 decisions handed down by various state supreme courts and also triumphed in dozens of lower court rulings.

Ron: Yeah, and sometimes in one year he alone would be handling as many as 50 cases in state courts and federal courts. It was just – the man was a machine.

Nico: Why haven’t I heard of him?

Ron: Well, first of all, where did he get his clients, right? I mean, so he had a client pool that just for years and years and even decades was the ideal pool for bringing cases to Supreme Court. He was the lead counsel for the Jehovah’s Witnesses, all right? And the Jehovah’s Witnesses have – if you take the Jehovah’s Witnesses out of the constitutional equation of First Amendment law, you lose a big chunk. So a lot of our First Amendment freedoms today are based on cases involving Jehovah’s Witnesses. And of course, in the ‘30s and the ‘40s and the ‘50s, the discrimination against the Jehovah’s Witnesses was just over the top for any variety of reasons, which we’ll get into.

But in any event, for a good number of years Hayden Covington was their lawyer. And so that’s where he – I don’t think he ever argued any cases in the Supreme Court that did not involve Jehovah’s Witnesses.

Nico: Who are the Jehovah’s Witnesses? I mean, you talk about how they were very controversial, particularly in the first half of the century, but even into the ‘50s and ‘60s. I know them, I’m sure many of our listeners know them as sometimes the friendly people who knock on your door.

Ron: They are. They are. They are and they were, you know?

Nico: They’re pacifists.

Ron: Yes, yes, which didn’t win them much favor in the second World War because of the tenets their beliefs they objected to saluting the flag and standing up and saluting the flag. This was a tenet, a sincere tenet of their beliefs. That their only loyalty was to Jehovah. They didn’t believe in the trinity, they didn’t believe in the afterlife of the soul, they didn’t believe in hell. So in that respect, they were seen as heathens. They were rather critical of the Catholic Church so there was that as well. And they were seen as unpatriotic, particularly at the time of the war.

And one of their cases that found the way to the Supreme Court, and this one Hayden Covington did not argue, it was in 1939, the flag salute case involving – the Gobitis case that was argued in the United States Supreme Court and they lost.

Nico: Eight to one.

Ron: Yeah, eight to one. And after that case, the discrimination and hostility toward the Jehovah’s Witnesses was just beyond description. I mean, they were being rounded up, they were being mugged, they were being clubbed, they were being prosecuted and persecuted. I mean, it was so bad that Francis Biddle, then Attorney General of the United States went on a national radio address and urged Americans to be more tolerant and to end this reign of terror against the Jehovah’s Witnesses. I mean it really – it had really ratcheted up, particularly after that Gobitis case.
Nico: Yeah, let’s – you provide a lot of statistics in your article about the violence that was brought upon Jehovah’s Witnesses. And you write that between 1933 and 1951, that’s less than 20 years, there were 18,866 arrests of American Witnesses and about 1,500 cases of mob violence against them. Often, they would be arrested because other people were violent against them. They were seen to have incited the violence. And that actually led to some Supreme Court cases.

Ron: Right.

Nico: There was an argument in Connersville, Indiana where Hayden C. Covington and a co-counsel argued on behalf of Jehovah’s Witnesses in that town. And Hayden Covington had to go catch a plane, I think to Maine, or to Boston, somewhere in the Northeast. And after the argument there was a mob of people who were looking for him and his co-counsel because of their representation of Jehovah’s Witnesses. We should also mention that Covington was a Witness as well.

Ron: Oh, yes, yes. And I believe he had converted years earlier. But, yes, he was a Witness. He carried a baseball bat in his car as a means of self-defense, it was that bad. I mean, there were situations where he was literally moments ahead of being murdered.

Nico: Yeah, in this Connersville case he writes I went to catch the airplane in Cincinnati and out of Connersville and then Brother Victor Schmidt, who was his co-counsel, he writes he’s dead now and he’s dead with his wife because they were mobbed by a crowd. And as they mobbed them that night in the darkness after the case in Connersville was over, they were screaming and yelling that they were going to kill me that night. The Lord delivered me, Covington writes, at the right time and I would have been killed that night.

Ron: I mean, there’s photographs of Hayden Covington and his face all beat up and black and blue and what have you, of course, but there is also records from the time he said well if you think I look bad you should see what happened to the other guy. I mean, I think at one point he said one time I got a triple against a guy, meaning he hit him in self defense with a bat. I mean, the Jehovah’s Witnesses were very polite, they usually were very well dressed, they wanted to pass out literature involving the Jehovah’s Witnesses.

I mean, there were cities in the United States that had signs as you entered the city prohibiting Jehovah’s Witnesses from entering the city. I mean, literally naming them as a group and it was that bad. And the hostility toward them was, as I said, incredible, but particularly during the war in 1939 that somebody, the children, school children would not, because of their faith, salute the flag, all right? In other words, bear false witness. I mean, the only person or entity that you salute or stand for is their lord, Jehovah.

I mean, we may have differences of their views, we may not think much of their religion, all right? But the sincerity of that religion cannot be questioned. And in a country that was at least in terms of the way it was constituted was built on religious toleration, what was going on against the Jehovah’s Witnesses was really in blatant violation of the very principles upon which this country was founded in terms of religious freedom.

Nico: Yeah, so enter the Watch Tower Society, which I guess is the organization or group that was created to defend the rights of the Jehovah’s Witnesses. And Covington wasn’t the founder of that organization, but he was a member of it, he was the lead counsel, became the lead counsel for them, and they developed a strategy to essentially protect Jehovah’s Witnesses’ First Amendment rights. And as a consequence of that, to protect all of our First Amendment rights. I mean, our First Amendment rights were built upon these Jehovah’s Witness cases that were brought by Covington and the Watch Tower Society.

Ron: Absolutely. I mean, we hear a lot about, and rightfully so, about Thurgood Marshall, the NAACP, and the strategy they used to bring cases to the federal courts and then to the U.S. Supreme Court.

Nico: And Ruth Bader Ginsburg with women’s rights.

Ron: Right, right. But Hayden Covington was doing the same. I mean they actually had pamphlets that they produced, that Hayden Covington and others produced, as part of the Watch Tower group that they gave to Jehovah’s Witnesses telling them their legal rights, what they could and couldn’t do. They would pick communities where they wanted to challenge the laws. They would orchestrate what they should and shouldn’t do. Always very polite. I mean, you know –

Nico: Except when they’re calling the police goddamn racketeers.
Ron: Right, right, yeah.

Nico: We didn’t get into the Chaplinsky case.

Ron: Yeah, that did happen. They did, at least a few of them. I mean, by and large they were very, very civil people and very polite. Obviously, there was exception, particularly when you find yourself in the heat of the moment as in the Chaplinsky case. But there was this strategy and it was very well orchestrated across the country and Hayden Covington played a major role. So when the cases were fed up through the federal courts and the U.S. Supreme Court, in terms – they had pretty much been vetted in terms of the kind of factual record that they wanted to bring to the Supreme Court. So we can get into it later.

I mean, Hayden Covington won a lot of cases. I can’t say that he was the Laurence Tribe or the Paul Clement of his time because as a Supreme Court advocate, he wasn’t necessarily very profound. But in terms of bringing the right cases at the right time to the right court, he played a very significant role.

Nico: Well, there is a discussion as to – and this kind of gets into the whole theme of your article. There’s a question as to whether advocates before the Supreme Court really make all that much difference. Or whether the justices have kind of already decided how they’re gonna approach a case when the case comes before them. Maybe they read the briefs. At least oral argument people say you can only lose a case.

Ron: Yeah, let me put it this way, but cases very much depend on the factual record brought before them that judges have no control. I mean, Supreme Court justices have no control over. So that factual record which is really pivotal, which is really, if you will, foundational I should say, in that regard he played a very significant role. And he – in the various cases it showed that both politically, religiously, and constitutionally the Jehovah’s Witnesses were victims and had been victimized time and again with wild abandon. And so in that regard, Hayden Covington plays a very significant role.

Nico: I wanna talk about some of his cases. Let’s start with the flag salute cases. And to do that we need to start with Gobitis, which wasn’t necessarily his case, though he worked on it, correct?

Ron: Right, right.
Nico: This is Minersville School District v. Gobitis. This the 1939 Supreme Court case in which the court held eight to one that –

Ron: Eight to one, okay? What’s significant about this case among other things is the person who wrote the majority opinion, all right? And that person is Felix Frankfurter. If you think that anybody should be sensitive to the plight of victims of religious discrimination, you would think that somebody who is a progressive Jew, which Frankfurter was, he’d earlier been involved in defending among others, Sacco and Vanzetti, or at least arguing in support of them. You would think that someone like that would rally very strongly to the defense of Jehovah’s Witnesses. No, went just the other way.

Nico: There are some interesting questions about the justices and their approach to Jehovah’s Witnesses because Jackson, who wrote the majority opinion in Barnette later, right, he was –

Ron: Which vindicates the Jehovah’s Witnesses First Amendment claim and has some of the most incredible language ever written in a First Amendment opinion.

Nico: But Jackson was kind of prejudiced against the Witnesses.

Ron: Oh, yes, yes. Kind of prejudiced, I mean he had written opinions, in earlier opinions, that these people are troublemakers. He didn’t use that word, but something to that effect. So if you had had to pick a person who was going to write an opinion reversing Gobitis, because Gobitis was reversed just three years later in the Barnette case where Justice Jackson writes the majority opinion, you certainly wouldn’t have thought that Justice Jackson would come to their defense.

Moreover, Zechariah Chafee a noted First Amendment scholar, the man that really kind of, if you will, aided Holmes – aided and abetted Justice Holmes in terms of developing First Amendment theory in 1919 and thereafter and the prominent Harvard scholar, if you look at his treatise, he really dismisses the Jehovah’s Witnesses as just kind of a side bar, a bunch of, if you will, troublemakers who are a nuisance. It isn’t until later in the Barnette case that he begins to have a change of heart as did Justice Jackson.

Nico: What were the facts in Gobitis?

Ron: Well, they were very similar. I mean, students, young students, I guess – well, today what we call middle school, there was a requirement that students – and it was – and this was particularly during the war. Remember this is 1939.

Nico: The United States hasn’t entered the war yet, but the Nazi power is –

Ron: Right, right. But that sentiment is there and it’s gonna go from 1939 to 1943 so by that time the United States does enter the war. And it was just – to call it a requirement, which it was, but it was just so much a part of the custom that young people, students, middle grade students, students 10-12 years old, would just at the beginning of the day stand and pledge allegiance. It was just kind of like –

Nico: I had to do it when I was in school.

Ron: Yeah, and you didn’t –

Nico: I think they still do it.

Ron: Yeah, and you weren’t questioned and you weren’t told now, Johnny you have to stand up and what have you, it was just kind of the norm. So when somebody on religious reasons refused to do that, this was just seen as hostile toward the government, being seen as unpatriotic. And the students would be suspended or even expelled. So it was pretty serious matter and the case went to the Supreme Court. And it had argued free exercise of religion and they lose with Justice Frankfurter writing the opinion for the Court. And it seems strange to us today, but in those days it was not. And after the Court rules against Gobitis, I believe 44 states had –

Nico: 48 states.

Ron: 48 states, excuse me, 48 states. Yes, which was, I guess, all that was in the Union at that time. 48 states had either old laws or new laws that compelled pledging allegiance to the flag and the vast majority the penalty was expulsion.

Nico: Yeah. Well, if you have any question as to how Supreme Court decisions can shape the culture, there was effectively a civil war against Jehovah’s Witnesses as a result of this case.

Ron: I mean, basically, the case said it’s open season. When Gobitis came down in 1939 and denied their First Amendment claims and said yes you can discipline, suspend, or expel these students, it was open season on Jehovah’s Witnesses.

Nico: Yeah, there was something like 20,000 Jehovah’s Witnesses who were expelled from school as a result of this because it was against their faith to salute the flag, but yet 48 states that passed these mandatory flag salute laws –

Ron: Which meant that there was no public school that they can go to. Right? I mean, if you were expelled from one public school, you’re not gonna be admitted to another public school for doing the same thing. So they either had to pay to go to private school or they didn’t go to school.

Nico: Yeah, they were being run out of town. There was one southern Sheriff who you quote who told a reporter why the Witnesses were being run out of town. He says, “They’re traitors. The Supreme Court says so. Ain’t ya heard?”

Ron: Yeah. Yeah, I mean it’s a very dark period. I mean, we talk about the McCarthy era, which is in the ‘50s, but in the ‘40s the animus toward Jehovah’s Witnesses was just enormous. And as I said, it got so bad that the Attorney General, Francis Biddle, a man of conscious, by the way a former law clerk, then called secretaries, to Justice Holmes, felt the need to go on national radio and call for toleration and calm. I mean, it was that bad.

Nico: So what happened at the Court to go from an eight-one decision saying that mandatory flag salute laws are constitutional, to just a few years later getting the Barnette decision which says they’re unconstitutional?

Ron: Well, I think what happened is that while we’re in a war fighting Nazis and people of conscience saw what was going on against Jehovah’s Witnesses, how bad it had become, I mean I’m just speculating here, but I think that hostility really got some people to stop and think about…about the wisdom of that decision because the facts are essentially the same. I mean, they’re very similar. I mean, there’s nothing significantly different in terms of the factual record between the two cases.

And as I said, you have people like Justice Jackson doing 180 degree turn in the Barnette case, turnaround, compared to how he had voted earlier. And some of the opinions, concurring opinions he’d written, chastising the Jehovah’s Witnesses.
Nico: And in the Barnette – as you mentioned earlier, you get some of the most glowing language in defense of free speech and free conscience of any Supreme Court decision –

Ron: That’s ever been written, yeah.

Nico: That’s ever been written. Jackson writes, I can’t remember it verbatim, but he essentially says if there’s any fixed star in our Constitution – constellation, that said no official higher petty can mandate what is essentially orthodox and religion.

Ron: Pretty good, pretty good, yeah. And, you know, it’s just an incredible line and it just shows how when the window of the mind opens up and perceives an injustice, sometimes, against all odds, the world changes. And Hayden Covington – although he didn’t argue the first case. A fellow named Rutherford who was a legal counsel then argued that case along with a Harvard law professor. That was the Gobitis case.

But when it comes to the Barnette case, Hayden Covington is there in his green suit, his red plaid tie, six feet tall, pretty close to yelling when he’s speaking to the justices, and it’s a new day. But it’s a new day when it comes to the flag salute because the Jehovah’s Witnesses cases will continue to come to the Supreme Court.

Nico: Yeah, what were some of the other major First Amendment cases that Hayden C. Covington argued that established new precedent, good precedent as we might say at FIRE, for the First Amendment?

Ron: Well, I mean, for example what constitutes state action under the First Amendment. There was just a case before the Supreme Court this term. In other words, how much private action when infused with some government action becomes what we call state action, enough to apply the Constitution to particular forms of discrimination. Jehovah’s Witnesses in terms of picketing, all right? Association. When it comes to – I mean, there were all sorts of things. Like I said, a lot of picketing cases, a lot of assembly cases, a lot of solicitation cases, distributing the literature. There were some cases that were brought in terms of when can somebody speak in a particular area, like a public forum, you know?

So whenever there was an opportunity to prosecute and persecute the Jehovah’s Witnesses, and again, remember, Covington had picked the communities where they wanted to bring the challenges. He had orchestrated with the clients what sort of conduct they would engage in to trigger prosecution. So he was very careful in the variety of cases that were brought to the Supreme Court.

By the way, a lot of free exercise. I mean, we’re talking about the speech cases, but there was a lot of free exercise cases. I mean, freedom of religion today, like I said, if you take Jehovah’s Witnesses out of the equation there’s just a big gap. And it’s amazing today, people of faith, whether or not they be Christian, Jewish, Muslim, what have you, I think everybody’s on board in terms of defending the principles that Jehovah’s Witnesses fought for. But it wasn’t true in the ‘30s and the ‘40s and the ‘50s.

Nico: Covington said of their efforts to change the law, with regard to many First Amendment rights, as you mentioned exercise, press, assembly, speech of course, these Witnesses who were plaintiffs in these cases were writing their faith into the law.

Ron: Right. It’s a bit exaggerated, but there is a measure of truth to it. The writing faith into the law, all right, it was there, it just needed to be buttressed.

Nico: Yeah, I think the quote would be better if he said writing the freedom to practice your faith into law.

Ron: Right.

Nico: Better. Because the law doesn’t only apply to Jehovah’s Witnesses or their tenets of their faith.

Ron: I think he actually meant the former, but in terms of what was actually being done, I think you’re right, the latter is true. By the way, we didn’t – I wanted to mention his name Hayden derives from the German heiden, which means heathen, all right? So by name he was a heathen. It’s really incredible that a man who spent his life defending religious freedom that his name should derive from a German word meaning heathen.

Nico: Which probably derives from a Latin word that’s – well, I guess German’s not a – anyway. He wasn’t successful in 15 percent of the cases he argued in front of the Supreme Court. And there’s one very notable one, which is the Chaplinsky case, which created, essentially, the fighting words doctrine, which many of us in the First Amendment community hate, although it’s not often applied. This is the case in which a Jehovah’s Witness who’s essentially mobbed by anti-Witness activists, people seeking to bring violence upon these Witnesses, and the Witness seeking police protection that wasn’t being provided to them, calls them a goddamn racketeer.

Ron: Yeah, I mean, there were a number of situations where mobs attacked Jehovah’s Witnesses and police just stood idly by. I mean, there were a number of instances where they broke it up, obviously, but there were other instances where they didn’t. And sometimes that led to “fighting words”. And this is –

Nico: Whereby a Witness yells at a police officer.

Ron: Right, right.

Nico: Do something!

Ron: Right, in colorful language, not obscene language or anything like that, but nonetheless. And so, yes, and the fighting words – he loses that case. I mean, fortunately, the fighting words doctrine today is the doctrine more in theory than in practice because there is any variety of ways. I mean, today a person can approach a police officer and say a number of things and not be charged with “fighting words”.

Nico: But the idea behind the fighting words doctrine is you say something that a reasonable person just couldn’t control themselves and might fight you, might attack you as a result of you’re saying that thing. Did the police officer actually attack Chaplinsky in this case? Do you remember?

Ron: They did, yes. In fact, by the way, fighting words, a typical situation is when you’re in a bar and a guy next to you is 300 pounds and has tattoos and has a Harley t-shirt –

Nico: And you say something about his mom.

Ron: Yeah, right, right. Right? Sitting right next to him at the bar, right? Those are fighting words. There’s also whether or not the state prosecutes you, not a very smart thing to do. But so, yeah, that’s the idea. And yeah, it starts with Chaplinsky. He lost that case. But there weren’t many that Hayden Covington lost. And it’s just – it’s an incredible story about a remarkable man who did have his own demons. Yes, he worked those 18 hours, but as his life plays on, it doesn’t continue to be as wonderful and as wondrous as it had been in the ‘30s and the ‘40s and the ‘50s and even a little part of the early ‘60s.

Nico: Yeah, he had a problem with drink.

Ron: He did, he did. I think it’s fair to say he was an alcoholic. It caused problems with his family, it caused problems with his church. He went and attacked the leader or whatever they call the chief figure of the Jehovah’s Witnesses, the time he openly attacked him. I mean, by attacked I mean verbally attacked, not physically attacked. He had this real drinking problem. The problem was is that by the ‘60s he no longer had any clients.

Nico: Because he’d won.

Ron: He’d won all these –

Nico: He was a victim of his own success.

Ron: Right, right. And there was nothing – he couldn’t get a job at a firm and he really wasn’t very successful as an individual lawyer out there hustling for cases. And so he had – when most – by the way, his pay in those days was just enough to pay the bills and what have you. It wasn’t like he was making a lot of money. He never made a lot of money.

So when the Jehovah’s Witnesses cases are over, he’s out of a job, he really doesn’t have anything to do with his life, he’s becoming increasingly an alcoholic to the point where it becomes chronic, there’s disputes within his family, he’s attacking the church and he’s effectively expelled. And then of course, before that happens, he’s representing Muhammad Ali at a trial level. This is where Muhammed Ali is contesting being drafted into the military during the war, the Vietnam War, and he’s doing so on religious conscience grounds. And Hayden Covington really kind of blows the trial.

Nico: Makes some bad arguments.

Ron: Yeah, yeah. And didn’t cross examine as many witnesses or as well as he should have. But by this time, he’s just out of it. I mean, he dies at 67 so he’s not that old of a man. But toward the end he’s basically unemployed, his family is broken up, he’s a chronic alcoholic, he’s expelled from the church. Things looked pretty bad there toward the end. Just before, not long before he dies, they bring him back into the fold. I think they see that death is knocking at his door. And he fades away into oblivion. And for decades and decades nobody knows the name Hayden C. Covington and to this day he remains unknown.

I hope – I sometimes fantasize about – because there’s more to be said about Hayden Covington. There have been books written on the Jehovah’s Witnesses. There have been a few books written about them and their struggle for religious freedom. But almost a whole book could be done on Hayden Covington. So this article is something that I had started collecting information on years and years ago. And time permitting I may someday do a book on him, but I just for the time being, wanted to get his name out there in the world of legal scholarship in terms of people who are teaching First Amendment law.

Nico: Yeah, you write at the end of your piece, the past, after all, lives only in the memories of the living. Who remembered Hayden Covington that brought him to your attention? Or did you just happen to see his name on Supreme Court briefs?

Ron: Yeah, I was working on putting together some materials for my constitutional law class and as I was going through these various Supreme Court opinions, I noticed the name Hayden Covington kept coming up again and again and again. And so I worked with my library, our librarians, and we did some research and I found out, much to my surprise, that this fellow had argued an enormous number of cases, a significant number of cases, in the Supreme Court.

And so I started doing research and really, I mean, over the years either alone or with David Skover or with Sam Chaltain, I’ve tried to pick people who’ve made important contributions to First Amendment law but are off the radar screen. So Lenny Bruce, Lawrence Ferlinghetti, Benjamin Gitlow from Gitlow versus New York, Charlotte Whitney as in Whitney versus California, and there’s another person, Robert L. Carter. I mean, who knows the name Robert L. Carter?

Robert L. Carter, he was second in command. Now, it just so happens that the guy who was first in command was so significant and cast such a long shadow that you didn’t see the No. 2 guy. The No. 1 guy was the chief counsel for the NAACP, Thurgood Marshall. But the second guy in line was a fellow named Robert L. Carter. Robert L. Carter had argued a number of First Amendment cases before the Supreme Court on behalf of the NAACP and one of them was called NAACP versus Alabama decided in 1958. And there the doctrine of freedom of association. So if you look at the text of the First Amendment –

Nico: Association isn’t there.

Ron: It isn’t there. There’s assembly there, there’s petition there, there’s speech there, there’s press there, there’s exercise there, and there’s no establishment there. But there’s no assembly – no association. And so Robert L. Carter, after he graduated from Howard Law School, a person of color, African American, had applied to Columbia Law School where he got an LLM and he wrote his dissertation on freedom of association. That dissertation, by the way, remains unpublished. I have a copy of it and I would like to publish it along with a introduction to it.

But in any event, the idea, freedom of association, it didn’t come from the Warren Court, they needed somebody to bring the case before them and to conceptualize for them and that person was Robert L. Carter. So there are these figures over the years, either alone or, as I said, with my co-author David Skover or with Sam Chaltain with whom I wrote We Must Not Be Afraid to Be Free, there was a chapter in there on Benjamin Gitlow, there was a chapter in there on Robert L. Carter, something in there on Charlotte Whitney as well.

So these are people that had made important contributions. So much of our law is court-centric and judge-centric. It just focuses on the judges as if these cases just magically come before them and that the people who bring them or the people who are actually involved in them, Benjamin Gitlow, Charlotte Whitney, Lawrence Ferlinghetti, Lenny Bruce, they somehow kind of vanish and become insignificant.

Nico: Unless they become Supreme Court justices like Thurgood Marshall or Justice Ruth Bader Ginsburg.

Ron: Right, right. And so what I’ve been trying to do all these years is give some air time because the First Amendment isn’t just what judges write about. The First Amendment is what the people do with their rights. And they may be as individuals, Lenny Bruce, Charlotte Whitney, Benjamin Gitlow, Lawrence Ferlinghetti, or they may be the lawyers, Hayden Covington or Robert L. Carter.
Nico: Yeah, you say there are a couple just practical reasons why our understanding of the law or appreciation for the law, our revere of certain figures in the law, is judge-centric. You say because for most of time, up until recent history, it was just hard to find out about these lawyers because you’d get the decisions, but you couldn’t access the briefs unless you had access to a specialized library. The internet didn’t always publish them. Now SCOTUSblog is very good about making clear who’s – and FIRE’s First Amendment library also talks about the lawyers. But it was very hard as a law student to get this information.

Ron: Yeah, and so it’s not in taught in law schools, it’s not taught in colleges. In fact, most of the editions, including the official edition of the Supreme Court reports, at least as first printed now, don’t list the names of the lawyers. They not only used to list the names of the lawyers, they used to – I guess prior to 1943 or something, right about there, list – there would be summaries of the lawyer’s arguments in the Supreme Court that were actually printed in the official record. That’s all gone now. I think the only place online that mentions the name of the lawyers is Oyez.

Nico: Oyez?

Ron: Oyez, yes.

Nico: SCOTUSblog doesn’t do it?

Ron: No. No, when they list – if you go to the trial transcript – I mean the transcript from oral arguments they do, but in terms of the opinions, no. Those are on [inaudible] [00:38:24] and I don’t believe they list the names of the lawyers there.

Nico: Well, another reason is, that you write in your article, because I should mention your article is – it begins with a discussion about the paucity of litigation scholarship, scholarship about litigators and then uses that as a segue to talk about one litigator about whom very little has been written, Hayden C. Covington. But another reason you give is that a lot of law professors are never actually practicing lawyers. I mean, they’re lawyers of course, but they spend their time in the academy or as clerks and then go straight into the professorship.

Ron: Yeah, and so their view of the world, of constitutional law is what judges write. So for example, if you ask any law professor, well where does the commercial speech doctrine come from? They will say, and I would say 99 percent of them would say this, it comes from the Virginia pharmacy case and the idea came from Justice Harry Blackmun, the author of that opinion and before that in some language in the Bigelow case, Bigelow versus Virginia.

Well, that’s not quite accurate. It came from a group called The Litigation Group, which was a Nader group, a Ralph Nader group, a consumer group, a progressive group arguing on behalf of the First Amendment. And so the doctrine, commercial speech doctrine really begins with a lawyer named Alan Morrison who’s now at George Washington Law School and is thereafter – he argued, I guess in the Bigelow case and then the Virginia pharmacy where the doctrine is actually launched, he was the lawyer who brought that case and successfully.

And thereafter, years later, with David Vladeck, now of Georgetown Law School, the First Amendment doctrine really develops in significant ways because of these lawyers, all right? And so to say that it was Harry Blackmun is part of the story, but the really important part of the story that’s left out of the equation, it could be David Vladeck, it could be Alan Morrison, it could be Robert L. Carter, it could be Hayden C. Covington. It could be any number of people.

It’s rather interesting when I did the book with Sam Chaltain, We Must Not Be Afraid to Be Free, we were kind of fascinated to find out that the same lawyer who argued Gitlow versus New York, also argued Whitney versus California, Robert Nells. And who remembers him? He was a law clerk to a fellow on the state high court of New York, a fellow named Cardozo – or not – he wasn’t a law clerk, he worked in Cardoza’s law firm. That’s right. And then Cardoza goes on to the Court and Robert Nells argues Gitlow and Whitney. It’s really rather significant and when Nells dies, I believe Zechariah Chafee writes in The Nation magazine, that we’ve lost one of our great defenders of civil liberties.

But who knows? Who remembers Robert Nells? Who remembers Hayden Covington? Who remembers any of these people? And more recently, as I said, you have all of these folks who play a significant role like Alan Morrison, like David Vladeck, and they’re just left out of the picture.

Nico: Yeah, well let’s take your call of action by way of closing here. Who are the First Amendment litigators today that we should know? You write in your article about Jim Bopp, James Bopp, who they called the terror of Terre Haute who’s responsible for a lot of the campaign finance law.

Ron: Yeah, I mean, yeah, if you look at campaign finance law and you look at the cases that come to the Supreme Court that started in the lower courts, the name that keeps bopping up, and I –

Nico: Pun intended.

Ron: Yeah. But whatever one makes of the views espoused by James Bopp, he’s a significant player. He deserves to be recognized. He also litigates a lot in the area of abortion that is “pro-life”. But he’s definitely a player in the world of campaign finance and yet, you know, very few people –

Nico: Part of that’s probably because he lives and practices out of rural Indiana. Well, Terre Haute’s not really rural, but it’s a small town, small city.

Ron: Right, but still, I mean, you start – I had done a book with David Skover on campaign finance, When Money Speaks. And when we were kind of going through all those campaign finance cases, James Bopp, James Bopp, James Bopp, James Bopp. It was just amazing how often that name came up.

There was a defamation case that had gone to the Supreme Court involving Johnnie Cochran. Johnnie Cochran was suing for defamation and there was a First Amendment defense that had been raised, First Amendment defense against the claim of defamation. And the case was briefed and all ready to go in the U.S. Supreme Court and there was a fellow who’s now the dean of University of California School of Law at Berkeley, Erwin Chemerinsky. Now, as it turned out, that case was mooted by his death. But there’s always –

Nico: Not by Chemerinsky’s death. He’s still around.

Ron: No, no, but by Cochran’s death. By the way, when Cochran was a younger man and a prosecutor, he was one of the people who prosecuted Lenny Bruce.

Nico: Wow.

Ron: So it’s just kind of amazing. So the history, the culture of the First Amendment is more than just what judges write. It’s what lawyers do, it’s what people do, and it’s that idea, that portion of the first amendment’s history that sometimes alone, sometimes with David Skover, sometimes with Sam Chaltain, and forthcoming now with Bill Creeley and Dave Hudson and Jackie Farmer, we’re trying to broaden the historical lens to include these other important figures.

Nico: Well, Ron, I think we’ll end there. Again, as Ron writes, the past, after all, lives only in the memories of the living. And we’ll do our best on this podcast to feature some of these First Amendment litigators. We do a pretty good job. We bring a lot of litigators on the show and talk about their work and its effect on the rights that we use every day. So, Ron, thanks for coming on the show. What should we plug before we head out of here? First Things First, you’re upcoming –

Ron: Coming next year, Robert Corn-Revere, I believe the title of the book is The Mind of the Censor and the Eye of the Beholder coming out on Cambridge University Press next year. Bob, forgive me if –

Nico: I didn’t know he was writing a book, wow.

Ron: He is, he’s well into it. I’ve seen portions of it. It’s very exciting. Robert Corn-Revere, a very noted First Amendment lawyer. I believe the book will be coming out next year. As I understand it, he’s going to be finishing it at the end of this year and it’ll be coming out next year. But I’ve read a couple of chapters and it is – there’s a lot of history in it and if the name Anthony Comstock means anything to you, wait until you read Robert Corn-Revere’s forthcoming book. So if I can plug that. It’s a – he’s a very noted First Amendment lawyer.

Nico: He’s been on this podcast a few times.

Ron: Yeah, and he has a book coming out next year.

Nico: Well, thank you, Ron. For those of you who want to check out Ron’s article in the Florida International University Law Review, it came out in the spring 2019 edition and it’s called “Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship”.

Ron: And it’s available online for free.

Nico: Yes, it is and I’ll link it in the show notes here. This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. To learn more about So To Speak, you can follow us on Twitter at twitter.com/freespeechtalk, you can like us on Facebook at facebook.com/sotospeakpodcast, and you can also email us feedback or questions at sotospeak@thefire.org. I ask you every episode if you enjoyed this show please consider leaving us a review on Apple podcasts or Google Play, wherever you get your podcast reviews. Help us attract new listeners to the show. And until next time I thank you again for listening.