Quote of the Day (Samuel Buell, on Tony Soprano and the First Amendment)

“Tony Soprano can’t invoke the First Amendment for telling his crew he wants someone whacked.”— Duke University law professor and former Enron prosecutor Samuel Buell, quoted by Michael Schmidt and Maggie Haberman, “First Amendment is Likely Linchpin of Trump Defense,” The New York Times, Aug. 3, 2023

What a concept: Tony, Paulie Walnuts, Silvio, and the rest of the crew as First Amendment defenders. It looks like they’re about to go defending their constitutional rights in this picture, doesn’t it?

Don’t be surprised if that involves baseball bats, knives, chemical sprays, axes, and other instruments you’re unlikely to find in a town square.

Oh, wait: some of those same objects showed up at the January 6, 2021 insurrection at the Capitol in DC!

In keeping with the link between a New Jersey figure (the real-life one has a golf course in Tony Soprano’s state) and criminal conspiracies, the object of Prof. Buell’s quote tweeted yesterday, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

This came only a day after the judge in the case involving “The Former Guy” issued this extraordinary warning: “It is a crime to try to influence a juror or to threaten or attempt to bribe a witness or any other person who may have information about your case, or to retaliate against anyone for providing information about your case to the prosecution, or to otherwise obstruct the administration of justice.”

(Thanks to my friend Rob for alerting me to Buell’s apropos quote.)

This Day in Legal History (Anthony Comstock, Anti-Vice Crusader, Born)

March 7, 1844—Anthony Comstock, who mercilessly pursued litigation and legislation against obscenity in the Victorian Era, was born in New Canaan, Conn.

Over four decades, Comstock used the organization he founded, the New York Society for the Suppression of Vice, to range across and rage against the cultural landscape. Starting with halting the promotion and sale of birth control and abortifacients, he ended up broadening his reach to plays, art and even medical texts, leading one of those he pursued, playwright George Bernard Shaw, to come up with a neologism for the anti-vice crusader. 

It wasn’t a compliment. “Comstockery is the world’s standing joke at the expense of the United States,” he complained to a New York Times reporter in September 1905, after Comstock had attempt to censor the Anglo-Irishman’s 1892 play about prostitution, Mrs. Warren’s Profession.

In the post-Civil War Era, white Anglo-Saxon Protestants, watching in dismay at the Northern cities they once controlled swelled to accommodate immigrant tide, countered with measures to deal with these ills. Some were benign attempts at uplift, such as public libraries. Others were sometimes questionable attempts to sanitize elections and governance through referenda, initiatives, and recall attempts. Others were more frankly hostile, like post-Famine deportations of Irish indigents in 11 Eastern states and the Chinese Exclusion Act of 1882. Still others, though ostensibly applied across the board, were purity crusades that stigmatized marginalized racial and ethnic groups disproportionately, such as Comstock’s anti-vice campaigns.

Once he came to New York City in 1866, Comstock could not get over what he encountered: prostitution, drug addiction, and bookstores that all kinds of pornography.  

By 1873, Comstock began in earnest his counteroffensive by persuading Congress to pass federal legislation making illegal the transportation and delivery of “obscene, lewd, or lascivious” materials. Due to his license as a “special agent” and inspector for both the Society and the United States Postal Service, that measure became so associated with him that it became known simply as the Comstock Act.

 

To his own version of the purity campaign, Comstock brought the energy of the demented to his quest—by his own admissions, destroying 160 tons of obscene materials; trying to ban adventure books and romance novels; helping to put out of commission the Louisiana lottery, the only legal lottery in the country at the time; and writing articles and lecturing college students to warn them against the licentious life he foresaw for them. 

I’m not sure how anyone who calls himself a Christian could brag about causing a suicide, but Comstock did—and not just one person, but 16, including abortionist Ann Lohman.

 One of the few modern defenses I’ve read of Comstock was Helen Andrews’ 2008 article in The Hedgehog Review. Although I disagree strongly with her sympathy for Comstock, I found fascinating her observation that the elite “who bankrolled Comstock were not about to invite him to dinner at their homes or to their private clubs.”

Indeed, another author, Nicola Beisel in her book Imperiled Innocents, has noted that the major contributors to his campaign were members of the upper crust who feared that their children, corrupted by the forces that Comstock inveighed against, might lose the social standing their parents had labored so hard to obtain.

Comstock’s last major target was Margaret Sanger for promoting her views on birth control. But midway through the campaign to make her cease and desist, Comstock died, leaving Sanger with another five decades to fulfill her destiny as a pioneer birth-control advocate.

Even after Comstock’s death in 1915, the Society for the Suppression of Vice continued to exist, albeit with steadily diminishing impact, under his successor, John S. Sumner, who pursued his own campaigns against James Joyce’s Ulysses, James Branch Cabell’s Jurgen and D.H. Lawrence's Lady Chatterley's Lover.  

As late as the 1930s, the Society’s reports identified the ethnicity of those it tagged as miscreants, as if this were relevant to the offenses. (It even claimed, according to its own statistics, that "less than one-third of [obscenity] offenders were of real American stock.")

 

Flashback, January 1786: Jefferson, Madison Team on Religious Freedom Statute

Capping a decade-long effort, Thomas Jefferson (pictured) finally succeeded in getting Virginia to enact a statute of religious freedom that would later serve as a model for the First Amendment guarantee of freedom of conscience. But the measure only passed in January 1786 with the help of the younger man who steered it through the legislature, James Madison.

Jefferson regarded the Virginia Statute for Religious Freedom as so key to his legacy that it was one of only three achievements he wished carved on his gravestone on the grounds of his Monticello estate.(The others were writing the Declaration of Independence and founding the University of Virginia--not serving as America's first Secretary of State, or its third President.)

If Jefferson was the architect of religious freedom in the new republic, then Madison was the contractor engaged in translating his blueprint into reality. The latter would play a similar role over the next two decades, assisting Jefferson in forming an opposition party to the economic plans of Alexander Hamilton, in secretly co-writing the Virginia and Kentucky Resolutions against the Federalist-sponsored Alien and Sedition Acts, and in acting as Secretary of State through Jefferson’s two terms as President.

Their collaboration began in the 1770s, at a time when religious agitation was echoing the larger mercantile and political unrest convulsing Virginia. In 1774, “Dissenting” ministers—at that point, Presbyterian, Baptist and Methodist sects—had been harassed, even beaten and jailed, in the colony. 

In what became Madison’s first important cause, petitions began to arrive at the legislature calling for the “Disestablishment” of the Anglican Church. Two years later, at Virginia’s revolutionary convention, Jefferson joined with Madison in trying to excise all “emoluments and privileges” from religion. But they could only succeed in replacing the phrase “fullest toleration in the exercise of religion” with “free exercise of religion.”

Jefferson particularly felt at a loss in debating the measure, because his weak voice could not advance his powerful words. (For the rest of his career, he tried, whenever possible, to avoid public speaking—even sending the State of the Union summary to Congress in written form, a practice continued by other Presidents until Woodrow Wilson broke with tradition more than a century later.) Thus was joined what he would call "the severest contest in which I have ever been engaged."

The impetus for the eventually successful legislation came in 1784, when Governor Patrick Henry called for taxing Virginians to support the promotion of Christianity. His proposal, which soon garnered widespread support (including from the likes of "Light-Horse Harry" Lee and George Washington), called for individuals to designate the denomination, or even the specific church, that their tax dollars would fund. Those who didn't want to support religion could even elect to put their tax dollars toward education in general.

Madison felt that, seemingly as liberal as this seemed, it was still too intrusive, because the same state authority that could direct funds to any Christian sect could later turn around and designate a particular Christian sect. He lost the original fight in the legislature against Henry, but in the hiatus that followed, rallied opposition to the plan with a powerfully argued “Memorial and Remonstrance Against Religious Assessments." With Henry’s proposal now allowed to quietly die in the legislature, Madison seized the moment to reintroduce Jefferson’s measure.

Even then, much like his first draft of the Declaration of Independence, some clauses were stripped away from the three-paragraph statute, including:

*“Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds”;

*[God] “manifested his supreme will that free it [the mind] shall remain by making it altogether insusceptible of restraint”;

*[God chose] “but to extend it [his plan] by its influence on reason alone”; and that

*“the opinions of men are not the object of civil government, nor under its jurisdiction.”

The deletions revolve around the notion that religious belief depends on reason, an idea that perhaps, to many, smacked too much of Jefferson’s deism. One passage that survived the cuts, in fact, would have been understood by the Protestant legislators as a not-so-subtle jab at Roman Catholicism: “the impious presumption of legislators...[who] have assumed dominion over the faith of others...hath established and maintained false religions over the greatest part of the world.”

Jefferson is not my favorite among the Revolutionary War generation. His hypocrisy as a slaveowner is only one of a number of ways in which his political and personal judgment was deficient. He also recognized far too late the damage done by France’s Reign of Terror; blustered about taking Canada with little more than a squadron of gunboats, leaving the United States unprepared when it did invade its northern neighbor in the War of 1812; secretly funded attacks on Hamilton and even George Washington, then denied he had done so; and planted the seeds of secession with his contention, in the Virginia and Kentucky Resolutions, that states could nullify federal legislation.

As Jefferson did so often in his political writing, he fashioned a coherent, persuasive brief on the proper role of church and state, only to nearly undo it all with rhetoric that his allies had to water down. The Statute, in fact, contributed to the misperception that he was an atheist.

That did not accurately describe Jefferson’s religious feelings, but they were complicated enough that he realized they could be misconstrued, so he discussed his spiritual search with only a few intimates. Unlike Benjamin Franklin, another deist, he did not believe, more or less, that virtually all religions had good points and deserved his money. As a spiritual corollary to his notion that that government was best which governed least, he felt that that religion was best with the least number of priests. “There would never have been an infidel if there had never been a priest,” he wrote to Mrs. Samuel Smith. Four years before his death, he wrote another confidant, “I trust there is not a young man now living in the United States who will not die a Unitarian.”

Jefferson could foresee an end to multiple religious sects, but not a day when America could let go of slavery, the “wolf [held] by the ears.” He was wrong on both counts. Yet he correctly saw the egalitarian value of educational institutions and libraries, and, early on, grasped the value and necessity of state non-interference with religion.

In one sense, Jefferson’s defense of religious freedom ultimately helped to preserve the foremost physical embodiment of his legacy. Each year, thousands make the pilgrimage to Monticello, his neoclassically inspired mansion in Virginia’s Piedmont region. What hardly anyone realizes is that it was a near-run thing whether the estate would sink into irretrievable ruin following his death in 1826—and that one of the only reasons it survived was because two of its subsequent owners could not forget the debt of gratitude they owed the author of the religious freedom statute for helping to create a space where they could live out their Jewish faith without fear of harassment or persecution.

Strapped for money, Jefferson could not maintain Monticello in the last few years before his death, leaving the grounds in what several observers saw as “slovenly” conditions. Charlottesville druggist James Barclay, upon buying the property from Jefferson’s daughter, allowed it to continue to deteriorate. It took Lt. (later Commodore) Uriah P. Levy, who bought Monticello from Barclay in 1834, and his nephew, Jefferson Monroe Levy, to stop the estate’s decay and restore it to at least something like its old grandeur.

Uriah Levy’s admiration for Jefferson was unconditional: “I consider Thomas Jefferson to be one of the greatest men in history, the author of the Declaration and an absolute democrat. He serves as an inspiration to millions of Americans. He did much to mold our Republic in a form in which a man's religion does not make him ineligible for political or governmental life."

Had Lt. Levy known of Jefferson’s private views, he might have experienced something like the surprise I had in Providence in mid-fall, when I discovered that that earlier champion of religious tolerance, Roger Williams, had been scathing in his views on Catholics. In Jefferson’s case, he regarded Jewish ideas of God and his attributes as “degrading and injurious,” and their ethics “often irreconcilable with the sound dictates of reason and morality” and “repulsive and anti-social as respecting other nations.”

At the same time, Jefferson was not anti-Semitic; he was merely submitting Judaism to the same skeptical focus he trained on all religions, and particularly any in which a mediating minister was involved. But he did think that any person was free to believe as exactly as they might wish, no matter how illogical or wrongheaded he personally might regard it. 

As he put it, in most succinct and memorable form, in Notes on the State of Virginia: “The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg. ... Reason and free enquiry are the only effectual agents against error.”