- Defending the Masses: A Progressive Lawyer’s Battles for Free Speech by Eric B. Easton
Eric B. Easton
Madison: University of Wisconsin Press, 2018; 269 pages. $79.95 (hardcover), ISBN 9780299314002.
As an admirer of the anarchists, atheists, communists, feminists, free-thinkers, muckrakers, pacifists, progressives, socialists, Wobblies, and other colorful dissidents and malcontents who fought and sacrificed for an inclusive and fair society in the late nineteenth and early twentieth centuries, it gave me pleasure to learn of the life and work of attorney Gilbert E. Roe (1864–1929). Like most First Amendment scholars, including the author of this book, a distinguished media law scholar, I had never heard of Roe, the man at the legal center of so many free speech issues during this formative period in U.S. history. For this reason, Eric B. Easton’s book fills an important gap in the rich legacy of the struggle for social justice.
Roe’s causes and clients are familiar to most readers of this journal. His clients included Alexander Berkman, Eugene Debs, Max Eastman, Emma Goldman, John Reed, Henrietta Rodman, Margaret and William Sanger, Upton Sinclair, and Lincoln Stephens. Roe’s causes are central to understanding the modern First Amendment and to civil liberties more generally. As a trial attorney for the Free Speech League (a precursor to the ACLU), and in his practice generally, Roe fought the forces of Comstockery and rallied against the judicial “oligarchy” of the Lochner-era courts. He argued against the Machiavellian use of libel law, criminal defamation, and contempt by publication by the state agents and corporations as weapons of persecution and retaliation against people working for necessary social change. Roe stood fearlessly against the Espionage and Sedition Acts and the First Red Scare. He defended progressive politicians (such as his close friend Senator Robert La [End Page 201] Follette) and New York City teachers who, after the start of the First World War, were threatened, expelled, or fired for “disloyalty” (most any dissent was considered “treasonous” by the defenders of the status quo at the time). Roe’s most famous case was his 1917 defense of the radical media in Masses Publishing Co. v. Patten. Here we find the first early (and short-lived) victory in a decision authored by Judge Learned Hand (later overturned by a higher court). Without a doubt, Roe lived and worked during a difficult, exciting, and consequential period in American history—one that, for all of its defeats and setbacks, laid the groundwork for the renaissance of the 1960s view of civil rights and liberties that we, with increasingly restrictive qualifications, continue to enjoy.
Easton’s stated intent in writing this smooth, straightforward, and enjoyable book was to reclaim from the past the “record of exemplary service” to the cause of the First Amendment and to the political freedom that we came to enjoy in the latter half of the twentieth century. In one sense, the book is about honoring an inspiring citizen-attorney, Gilbert E. Roe. In another, it is to remind us about how the fight for a better tomorrow starts today, and the fruit of our efforts may not mature for decades. As Easton reiterates often throughout his book, most of the time Roe lost his legal battles, advancing legal theories and views of the First Amendment that would not be recognized for generations. His work for progressive causes and candidates seemed like a losing battle to Roe by the time of his death. Yet Roe’s view of the First Amendment would slowly become normative, starting with Near v. Minnesota, Terminiello v. Chicago, New York Times v. Sullivan, and Brandenburg v. Ohio, all embodying ideas Roe presaged and for which he fought.
Ninety years after Roe’s death, we live in an era that is eerily similar to his time, one in which the values of progressivism, free speech, and free press are under siege. Rights we have taken for granted since the 1960s are under threat. In this context, Roe’s defense of progressivism and civil liberties seems current and important. In a man born during...