Free Speech: Eight Questions with Alan Isaacman, Formerly First Amendment Lawyer to Larry Flynt

This is the second in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment. 

Alan Isaacman is a partner at Isaacman, Kaufman & Painter, located in Los Angeles. He has represented a variety of clients in media and entertainment matters, from Geraldo Rivera to Kathy Griffin to Rock Hudson. For 20 years he represented Hustler Magazine publisher Larry Flynt in First Amendment cases around the country. In 1988, Isaacman won the landmark case Hustler Magazine v. Falwell at the U.S. Supreme Court, and afterward the actor Edward Norton partly portrayed him in the film “The People vs. Larry Flynt.”  Isaacman is a graduate of Penn State University and the Harvard Law School.

What is the most serious threat today to free speech? 

That’s a difficult question. Areas we’ve seen as settled are being reexamined, and so there doesn’t seem to be any area you can take for granted. I think of Snyder v. Phelps, for example, where the free-speech issues were basic ones, even though the facts were emotional ones. The lower courts appeared to struggle with it. That sort of thing, which often requires Supreme Court clarification, can have a chilling effect on speakers and members of the media, people who might not want to spend lots of money to exercise and protect their rights of free speech.

A specific area that concerns me, though, is national security. You pick up the newspaper every day and see that something else has happened that supposedly requires a speech restriction. Typically, the reason is, “We have to do this to protect the homeland.” That rationale is threatening even the most basic speech rights, like the right to take photos in public places.

Some of those restrictions arose in the last 10 years, against the backdrop of the so-called “War on Terror.” But in many cases their roots go way back. Over time, how has your perspective on free speech changed?

It’s the one of a lawyer practicing his craft. I didn’t start out as a constitutionalist or a scholar in this area, and even today I don’t consider myself one. But I’ve had a fair number of First Amendment cases, and they’ve clarified for me the importance of the First Amendment and its value in our democracy. Even though I understand why some restrictions are seen as necessary to protect valued government interests, too often it’s short-term emotions that motivate those restrictions, which can cause long-term damage to the country.

Once you decide that a certain type of speech is so offensive that we can’t allow it, then who decides whether the next speaker’s speech is offensive? We try to take that decision out of the politician’s hands by saying that all speech is protected, unless it falls within a narrowly defined exception. The problem is: Very often when that principle is tested, the speech is of a kind that a large number of people find offensive. And while many of them proclaim the value in general of the First Amendment, they say otherwise in your particular case.

On the subject of offensive speech, 10 years ago you said that of all types of speech, depictions of sex are “probably the most controversial” on a broad scale. The reason you gave was a “general hang-up about sex”—that many people are embarrassed by it or ashamed to talk about it. Do you think that as a society, since then, we’ve made any progress?

We’ve made a lot of progress, and that’s demonstrated by what’s available on cable TV and in newsstands and on the Internet. In particular, the Internet has been a major force in spreading the idea that sex is not as dangerous as we thought it was. So whether it’s too difficult to prosecute, or whether our sensibilities are not as offended today as they used to be, whatever the reason, it seems like things that once were threatening are not today the focus of prosecutors and the government. People are subscribing more to the idea that “If I don’t like something, I can turn it off and not look at it.”

I say all of that, and yet this term the Supreme Court will decide FCC v. Fox, which raises the question of whether you can say a fleeting expletive, one during an acceptance speech at an awards show—“shit” or “fuck” or whatever—and whether the FCC can punish the network for it. In that case, there was a TV show involved, too: “NYPD Blue.” It showed a guy from the rear, and the FCC had a problem with it. The idea that showing a man’s buttocks is so offensive that it warrants FCC attention is mindboggling in 2011. But the people making these decisions are, for the most part, in the older generations. And certainly the Supreme Court leans conservative, so you can see why the FCC’s problem might get some support there. Whereas if you asked people in their late teens, in their twenties or thirties, they’d probably say, “What’s all the ruckus about?”

What about sex and violence? You’ve talked about the incongruity in the way we regulate depictions of sex compared with the way we regulate depictions of violence. Does that still bother you?

Yes, it does. If we’re saying that some speech is so dangerous that we can’t allow it, then long before you get to the issue of showing people making love, you might target speech about mayhem and murder. You could argue it’s more dangerous than speech about people engaging in consensual sexual activity. I can’t understand it, other than to say we have a particular place for sex in our value system, leftover from our early, more puritanical days.

As a little kid, watching cartoons, there’s always violence, whether it’s “Tom and Jerry” or something else. One character is hitting the other. And now you have video games, which are violent. They’re protected. But if you show two people doing an activity they want to do—they get pleasure out of it—then that’s dangerous. It just doesn’t make sense.

Last year, in the Phelps case the Supreme Court relied heavily on Hustler v. Falwell.  To you, some 20 years later, what’s the legacy of that case? 

Hustler v. Falwell addressed people in the public arena, which is where it departs from Snyder v. Phelps. We had Jerry Falwell, one of the most recognizable characters in the country, and we had Larry Flynt, of Hustler fame. The legacy of the case is that someone who gets his feelings hurt, someone who’s suffered emotional distress because of speech about him, does not get to use the courts to punish the speaker. One of the consequences of free speech is that people will get their feelings hurt. They have to deal with it, and if they want to contest it, they should engage in counter-speech. That tells you that in our democracy free speech is profoundly important. We need a marketplace of ideas, not a place where juries can tell people they can’t say harmful things. Almost every negative comment made by one person to another will cause some degree of emotional distress. And if you punish that speech, all of it, then the chilling effect sets in. Think of political cartoons and the presidential debates. One candidate criticizes the other, causing some degree of emotional distress, and then the other candidate could sue. If you run a country that way, you’ll have mild speech, which isn’t worth much, about important public matters.

You represented Larry Flynt in more than 100 cases around the country. What was the most rewarding thing and the most challenging thing about representing him?

There were different challenges at different times. Back in the early 80s, he was in a fragile state. He had bi-polar disorder, and he behaved accordingly. As a lawyer dealing with a client, it was difficult—I didn’t have control over what he was doing at any given time. On the other hand, the cases we did were fascinating, dealing with important First Amendment issues. I got to see a lot of the country through my involvement in trials and appellate proceedings. That was an educational experience for me, getting to see how the different courts operated. And I came to understand the challenge of defending unpopular speech in courts that often don’t get First Amendment cases. You appear before a lot of judges who say they believe in the First Amendment, but in your case they say people shouldn’t say what your client said. That inconsistency is something I saw quite a bit. So you really had to educate the judges on First Amendment history and cases. In one way, representing a free-speech client is similar—it feels similar—to representing a criminal defendant: Both clients have done something that most people find offensive.

William Bennett Turner wrote in the book “Figures of Speech,” which came out this year, that very few people are First Amendment purists—people who want to advance the cause of free speech for everyone. Would you put Larry Flynt in that category?

Larry Flynt is an entrepreneur who had creative ways to further his business, and I think he recognized at some point that the First Amendment would be a useful right for him. It was one way to add respectability to a business that probably wasn’t terribly respectable otherwise. And I think he became a believer over time. He just didn’t start out that way.

What about you? Are you a purist? You seem very willing to represent people whose views are unpopular.

That’s true. It’s not just about representing people with unpopular views and overcoming personal objections. It’s also about a commitment to the idea that people are entitled to lawyers, and underlying the First Amendment are values that transcend what these people do—values important to all of us. And historically when free speech rights are attacked, if you allow the least popular people to be deprived of their First Amendment rights, then it’s not long before others are deprived, too. So the battle is fought on the fringes, with people you might not socialize with or whose business you might not endorse. But as a lawyer, you’re doing a public service by protecting their rights, because it protects everyone’s rights.