Weekend Roundup

• "The William & Mary Archive of American LGBTQ Political and Legal History, a first of its kind in the United States, will be featured at a June 7 event celebrating PRIDE month at the W&M Washington Center" (William and Mary News).  Another report of the archive (WYDaily).
  

• Ron Harris. the Kalman Lubowsky Professor of Law and History, Tel Aviv University, delivered "The Globalization of Company Law 1844-1914," the Youard Lecture in Legal History for 2023, at the University of Oxford Faculty of Law on May 30.
  

• In The Dark Side of Defamation Law, a featured review in the New Yorker, Jeannie Suk Gersen reviews Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan by Samantha Barbas.  Actual Malice also made the New Yorker’s list of “The Best Books We've Read in 2023 So Far.”

• A recording of that Supreme Court Historical Society session on securities regulation and the Supreme Court with Adam Pritchard and Robert Thompson has been posted to YouTube.
  

• Ken Bridges, South Arkansas Community College, on the "Brooker Brothers," two African American lawyers who “shaped Arkansas’s legal landscape” (El Dorado News-Times)
  

• ICYMI: Emily Blanck, Rowan University, on her forthcoming Remembering Emancipation: Juneteenth as America’s Emancipation Holiday (University of North Carolina Press) (Rowan Today).  A South Carolina lawyer will ask the Supreme Court to rename Brown v. Board of Education as Briggs v. Elliott  (ABAJ).  Steven Mintz on Rights Talk (IHE Blog).  Troy J.H. Andrade on encountering Queen Lili‘uokalani at the National Portrait Gallery (ACS).  A career tip for Brandeis University graduate students from Winston Bowman, Associate Historian at Federal Judicial Center.
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Hatzis on Byron and Stanhope's Greek Newspapers

Aristides N. Hatzis, University of Athens, has posted Establishing a Revolutionary Newspaper: Transplanting Liberalism in a Pre-Modern Society, which appeared in Human Rights in Times of Illiberal Democracies: Liber Amicorum in Memoriam of Stavros Tsakyrakis, ed. (Nomiki Vivliothiki, 2020), 293-317:

In late 1823 two representatives of the London Philhellenic Committee (a Philhellenic group established to support the Greek War of Independence from Ottoman rule) arrived in Missolonghi in Western Greece to administer a loan to the revolutionary Greek government and help the Greek cause. The visit of Lord Byron and Col. Leicester Stanhope was short. Lord Byron died in early April of 1824 and Col. Stanhope was recalled to Britain one month later. During this short period, they managed to establish three newspapers in liberated Greece but also to antagonize each other on the ideology and content of these newspapers. The objective of Stanhope was to disseminate Bentham’s liberal ideas in Greece and the objective of Byron was the international recognition of the Greek War of Independence. Their never-ending fights led to the first major episode of newspaper censorship in the history of modern Greece: Byron confiscated an issue of a newspaper because he thought it was damaging to the revolutionaries’ international standing and he tried to undermine Stanhope’s position by discrediting him to the London Committee. Stanhope did the same by accusing Byron of illiberalism. Byron and Stanhope were also involved in the civil war that erupted during the revolution. Their brief stay in Greece brought out major antinomies in their conceptions of liberty, liberalism, democracy and radicalism but also of national interest and revolution. In this paper I am presenting the establishment of three newspapers by Byron and Stanhope, their inevitable conflict and the different ways they perceived the ideas of liberty by drawing on their extensive correspondence and on the memoirs of Byron’s companions to the Greek adventure.

--Dan Ernst

The Strange Symbiosis of Libel and the Popular Press

My thanks once more for the opportunity to be your guest blogger this month. This will be my final post.

The Strange Symbiosis of Libel and the Popular Press

In late 1920, London daily newspapers had a field day recounting the scene before the King’s Bench and a special jury. A slander case pitted writer Marguerite Radclyffe-Hall against St. George Lane Fox-Pitt, son of famed archeologist Augustus Pitt-Rivers. Fox-Pitt had recently learned from Admiral Troubridge that Radclyffe-Hall had taken up with the Admiral’s estranged wife. Fox-Pitt used this information to discredit Radclyffe-Hall at the Society of Psychical Research, purportedly calling her a “grossly immoral woman.” In court, Fox-Pitt denied that he had ever called the plaintiff “immoral.” Or, he equivocated, if he had done so, he had not meant it maliciously. Indeed, if he meant it at all, the claim pertained to her work, not to Radclyffe-Hall herself. According to the Daily Mirror, the courtroom burst into laughter as Fox-Pitt attempted to describe the immorality implicit in Radclyffe-Hall’s psychic account of a “spook horse” bathing in heaven. Not even the judge seemed able to move past the strangeness of spiritualist study to follow Fox-Pitt’s point [1]. Radclyffe-Hall won her slander suit, receiving £500 damages, a decision upheld on appeal in 1921 [2]. She won thanks to the little-known 1891 Slander of Women Act that allowed women (and only women) in England and Wales to sue for sexual slander without having to prove damages. The law would remain on the books until 2013.

I have been thinking quite a bit about this Act since starting research on reputation. It gets mentioned regularly in legal primers as one of the few caveats in British defamation law. Whereas the law generally requires proof of financial damages in cases of oral slander, the 1891 Act exempted women, since the quintessential middle-class Victorian woman presumably had no market income to lose. There are only a few hits when one searches for cases in the law reports, not leaving the historian much to draw from. If one shifts one’s view from law reports to the newspapers, however, one finds several dozen cases over the law’s 122-year life, the bulk of them taking place between its 1891 passage and 1940. With each expansion of the online British Newspaper Archive, I find more. Some of the stories are set up as general-interest stories, while other slander of women cases were less visible. Editors clearly deemed Radclyffe-Hall’s trial to be good entertainment for readers, and covered it on the first or second pages of their papers.   

As a historical repository of courtroom drama, newspapers are unparalleled sources. But they are far from being neutral parties, of course. It is perhaps hard to find an area of research in which this is more the case than in questions surrounding defamation. Members of the press were outspoken in their critique of libel law at every stage. Nevertheless, journalist critics of libel laws rarely advocated the outright abolition of defamation law. Radclyffe-Hall’s case and Kelly v. Sherlock (see my previous post) offer useful ways of thinking about newspapers’ relationship with defamation cases and how historians might take the relationship into account.

Radclyffe-Hall’s case was a society case. It was entertaining, and it would sell well. Thanks to amendments to the libel laws in the 1880s, news outlets could report on court proceedings so long as the reporting was done accurately and without malice. Targeting an ever-wider readership, especially among women, mass newspapers could bank on the appeal of a social celebrity like Radclyffe-Hall. The seeming ridiculousness of the whole affair likely made the courtroom drama all the more appealing. The laughter in the courtroom stood in for newspaper editorializing, which would have been off limits—or, rather, open to libel charges in turn. Indeed, the entire scene underscores an implicit agreement about the bounds of civility in the period. It was permissible to laugh at Fox-Pitt for his unchivalrous and inept condemnation of Radclyffe-Hall. His inhibitions about addressing her sexuality in the courtroom can be attributed to the Slander of Women Act’s blanket prohibition on criticism of a woman’s virtue. But the courtroom and wider public also seemed remarkably at ease with Radclyffe-Hall’s well-known lesbianism a decade before she published her seminal (and censored) Well of Loneliness. It helped, of course, that the case involved a psychical society, not politics; the stakes were lower. This could not be said about Kelly v. Sherlock. 

Sherlock got into trouble not because he published about Kelly but because of the manner in which he discussed Kelly. Kelly was indeed fair game. He’d made himself a target of public interest, as Baron Bramwell ruled in the trial at the Manchester assizes in August 1865. While there might be a privilege in sermonizing to one’s flock (Bramwell was doubtful, but upheld it), there was no pastoral privilege to criticize civil officials. By so doing, Bramwell held, Kelly opened himself to public rebuke [3]. Sherlock’s infraction, then, was not criticizing Kelly, but doing so in an overly vitriolic manner. It was a contemptuous attack on his professional persona. Newspapers that reported on Kelly and Sherlock could do so without feeling that they were betraying their profession or inviting trouble themselves because, to them, the case helped clarify the boundaries of legitimate journalistic practice. Journalists were not unqualified defenders of journalistic latitude, and saw no reason to be so. They were comfortable with a legally-enforced code of journalistic civility.

It is significant when even those with an interest in criticizing a norm assent to it in principle, since this reflects the power of a social norm. On my bus ride home today, I was reading the 1967 Report of the Joint Committee on Censorship of the Theatre. In his testimony to the committee, Kenneth Tynan, then fighting to have Hochhuth’s Soldiers staged, demanded the end of censorship. His phrasing early in his testimony is of note: “there should be no restriction short of libel on the presentation of historical characters living or dead” [4]. 

[1] Daily Express, November 19, 1920, p. 1; Daily Mirror, November 19, 1920, p. 2. 

[2] "Court of Appeal." Times, March 16, 1921, p. 5.

[3] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686, 689.

[4] Testimony of Kenneth Tynan January 24, 1967, as found in the Minutes of Evidence appended to the Joint Committee on Censorship of the Theatre, p. 80.

--Caroline Shaw

File on the Telegraph and Libel in the Progressive era

Patrick C. File, University of Nevada, Reno has published Bad News Travels Fast: The Telegraph, Libel, and Press Freedom in the Progressive Era with the University of Massachusetts Press. From the publisher: 

At the turn of the twentieth century, American journalists transmitted news across the country by telegraph. But what happened when these stories weren’t true? In Bad News Travels Fast, Patrick C. File examines a series of libel cases by a handful of plaintiffs—including socialites, businessmen, and Annie Oakley—who sued newspapers across the country for republishing false newswire reports. Through these cases, File demonstrates how law and technology intertwined to influence debates about reputation, privacy, and the acceptable limits of journalism.

This largely forgotten era in the development of American libel law provides crucial historical context for contemporary debates about the news media, public discourse, and the role of a free press. File argues that the legal thinking surrounding these cases laid the groundwork for the more friendly libel standards the press now enjoys and helped to establish today’s regulations of press freedom amid the promise and peril of high-speed communication technology.

Praise for the book:

"File’s research is impressive, and Bad News Travels Fast makes an important contribution to understanding this ‘forgotten period’ of libel law." - Samantha Barbas

"An important contribution to our understanding of the development of First Amendment law, with particular relevance to current debates about the role of journalism and legal protections for the press." - Tim Gleason

Further information is available here.

--Mitra Sharafi

Sethi on censorship in India

Devika Sethi, Indian Institute of Technology, Mandi has published War over Words: Censorship in India, 1930-1960 with Cambridge University Press. From the publisher: 

Censorship has been a universal phenomenon through history. However, its rationale and implementation has varied, and public reaction to it has differed across societies and times. This book recovers, narrates, and interrogates the history of censorship of publications in India over three crucial decades - encompassing the Gandhian anti-colonial movement, the Second World War, Partition, and the early years of Independent India. In doing so, it examines state policy and practice, and also its subversion, in a tumultuous period of transition from colonial to self-rule in India. Populated with an array of powerful and powerless individuals, the story of Indians grappling with free speech and (in)tolerance is a fascinating one, and deserves to be widely known. It will help readers make sense of global present-day debates over free speech and hate speech, illustrate historical trends that change - and those that don't - and help them appreciate how the past inevitably informs the present.

 Table of Contents after the jump:

Op-eds and Amicus Briefs

In a prior post, I mentioned the benefits of having access to a good publicity team at one’s home institution.  Today, I want to talk about the relationship between legal historians and other consumers of the past.

Over the years, LHB has flagged many op-eds and amicus briefs and featured a number of commentaries on the issue. Last May, Christopher Schmidt ruminated that The Art of the Op-Ed was “problematic” because it required “compromise and simplification” and “anachronism and presentism.” Turning to amicus briefs, Greg Ablavsky’s Thoughts on Historians and Advocacy included the concern that “briefs rarely capture the complexity that good history depicts.” In “Say Something Historical!” Tomiko Brown-Nagin recounted how using the past in public advocacy or legal reasoning involves “ways of reasoning about history that often seem dubious to me in my capacity as a professional historian. ”

In a recently published entry in the Oxford Handbook of Legal History entitled “Historians' Amicus Briefs: Practice and Prospect,” Nathan Perl-Rosenthal and I relayed a similar concern.  Some historians who had helped the NAACP’s lawyers craft historical arguments in Brown v. Board of Education had come to have second thoughts. They worried that, “spurred on by their desire to reach a particular outcome, they had drawn conclusions that were not warranted by strict historical methods.”

Notably, Chris, Greg, Tomiko, Nathan, and I agreed that the benefits of engagement outweighed the risks. As Tomiko put it, “Historical arguments are quite attractive and will be made.” Better not to exclude those most qualified and committed “to tell the truest story possible, given the available evidence.”

I agree. But I also wonder if we legal historians should wring our hands a bit less before striding into the public square.

Relating the past to the present is inherent to the historical enterprise. While I value complexity and believe that the past is different from the present, it is living readers for whom I write. Modern concerns shape the topics I choose, the methods I deploy, and the arguments that I make. I experience history as a translation between then and now. I worry that the alternative would be sterile antiquarianism.

On this view, the question isn’t whether it’s appropriate to write op-eds, amicus briefs, and the like, but how.  Nathan and I took a stab at part of that question in our essay.  Where amicus briefs are concerned, the historian must often “speak in a language legible to courts on matters of concern to them, while respecting the court’s distinct areas of authority.” We identified several strategies for striking that balance:

1. Stop short of arguing that history can decide the final issue
2. Limit participation in the amicus briefs to experts on the specific topic at issue
3. Use intermediaries between law and history: lawyers familiar with history, legal historians, or historians willing to learn about law
4. Provide multiple points of entry into the argument; describe ways that history could support certain arguments; explain why history runs counter to other arguments
5. Show your work by making your methods explicit

If ever an audience knew more good strategies, it would be LHB readers. I hope you’ll take to the comments to share.

--Sam Erman

A Better Book: The Home Institution

              A choice I did not make that profoundly shaped Almost Citizens was that of USC Gould School of Law to hire me. Here, I lucked out. Writing the book I wanted required time, money, inspiration, guidance, autonomy, infrastructure, and publicity. Fortunately, my home institution was well stocked with all seven. (If your school takes a different approach to these questions or your recipe for success calls for different ingredients, please share in the comments.)

              Time was what I needed most. But it was easy to overinvest in teaching and service. I wanted to serve students and please senior colleagues, and there were so many new, interesting ways to contribute. Gould protected me against myself.  The dean assigned junior professors light service obligations and never asked them to develop new courses beyond their original three (we have a 2-1 load). Senior faculty protested any perceived erosion of the norm. And I got a semester-long sabbatical halfway through.

              I also found that my research, writing, and physical book all benefited from money.  Paid research assistants facilitated broader searches and more thorough reviews. Money for travel bought archival trips and conference presentations. It took funds to hire development editors and improve the book through subventions.  While I couldn’t spend my way to a good book, I could have been starved into a weaker one. Fortunately, I had a dean and institution that invested in scholarship. I never had a prepublication request denied. That support let me put my best foot forward, plan with confidence, and avoid the stress of committing personal funds to professional advancement.

              My book was also shaped by the scholarly cultures and institutionalized intellectuals spaces of the institutions where I researched and wrote. It was while taking part in Gould’s healthy culture of office, hallway, and faculty lounge chats that I had many important epiphanies. I gained key interlocutors and inspiration through my participation in USC’s Center for Law, History and Culture and the multi-institution Law and Humanities Junior Scholars Workshop that the center cosponsors. Gould also gave me the chance to present in an internal workshop each year. And every year the school’s senior faculty read and responded to all my works in progress.  As a result, I received an additional mountain of helpful tips and questions.

One of the  challenges of taking full advantage of opportunities for feedback at Gould was the knowledge that I was inviting criticism from the same people who would vote on my tenure case. Fortunately, engagement with my colleagues turned out to be a way to elevate my work while pleasing my electorate. Gould’s senior faculty stressed that I should ignore any advice that proved unhelpful.  The dean repeatedly insisted that it was the scholar’s job to bring critical judgment to the array of conflicting suggestions received. Never did I hear a complaint that I had ignored someone’s suggestion.

              Gould’s service-oriented library multiplied my research productivity. Its librarians acquired obscure sources, secured high-resolution scans of illustrations, undertook foreign-language correspondence with overseas repositories, and filed Freedom of Information Act requests. Whenever I asked them to compile reading lists, find statistics, create maps, or undertake targeted research, I could trust that it would be done and done well. In fact, Gould’s librarians were often better than me at finding sources and digging up facts. Having such skill on staff was the result of a decision to prioritize personnel above collection size. But Gould’s smaller collection never hampered me. Interlibrary loan, mass digitization, and the school’s willingness to buy otherwise inaccessible materials always did the trick. The end result was that I saved considerable time and mental energy. 

              When I was on the entry-level market, it never occurred to me to evaluate law schools in terms of their public-relations teams.  My mistake! After years of obscurity as a grad student, law clerk, and post-doc, my arrival as a professor brought ready access to the public sphere.  As I soon learned, I could give interviews, discuss topics on background, write op-eds and articles, post to blogs, secure press coverage and book reviews, do public events, send out promotional materials, and much more. (I invite those of you more media-savvy than me to take up the possibilities in the comments.)  I was enthusiastic to raise my profile and spread my ideas. But I worried about PR becoming a time sink, or worse, about making a fool of myself before a large audience.

Gould’s PR team helped me enter the public eye efficiently and on my own terms. They took care of logistics, safeguarded my time, and focused on how I could have an impact. They initially held my hand, practicing with me what I would say and helping me set expectations with reporters. As my confidence grew, my scholarship progressed, and world events unfolded, they had endless ideas about how to give me and my work a broader platform. With their help, I gravitated toward interviews and op-eds (a subject of an upcoming post). I eschewed forums that treated intellectual exchanges as battles, and sought out those favored conversational interactions. They even helped me be heard despite my general absence from most social media (LHB notably excepted!).

              --Sam Erman

A Better Book: The ASLH Book Series

              Perhaps the most important decisions of my transition from dissertation to book was mine to publish with the American Society of Legal History’s book series at Cambridge University Press and theirs to have me.  In a word, the reason was: editing.  In a person, it was: Sally Gordon.  More specifically, I gained a mentor, a booster, a reader, a quarterback, and a promoter.

              From the outset, Sally shared and shaped my vision for the project. I first reached out to her about the book on the suggestion and introduction of my mentor Dan Ernst, himself a former editor of the series.  To my amazement, she read my entire dissertation with her discerning and constructive eye. She saw the same promise in the dissertation that I did. It already had characters, a narrative, and evidence that constitutional change sometimes occurred outside of courts. The promising strands it had left dangling included the place of Reconstruction in U.S. empire, mechanics and details of who drove what legal change how, the relationship between Puerto Ricans and both American Indians and mainland women and minorities, and the shadow that U.S. colonial rule in the Philippines cast over everything.

              An unexpected (but not surprising) benefit of publishing with the ASLH series is that it brings instant credibility with society members. At the annual meeting of the American Society for Legal History, Sally also introduced me as an up-and-coming scholar with plans to publish in the series.  Anyone who’s seen Sally in action knows that means meeting a lot of society members. I’ve always felt welcome at the annual meetings, but since then the meetings have been a sea of friendly faces.

               Joining the series also meant receiving a level of editing and mentorship that I associate with literary presses of yore, not the tight margins of modern academic publishing.  Almost Citizens was my first book, so I had no experiences identifying – much less making – many of the decisions that book writing  requires. Fortunately, as I wrote (and rewrote), Sally read (and re-read)–the book proposal, an annotated table of contents, individual chapters, and finally the full manuscript.  Every major element of the book bears her mark. Through emails, phone calls, and coffees, she pressed me to specify and “surface” my biggest claims and to open my geographic and temporal lenses wide enough to bring those claims fully into focus. We discussed what books I liked, how they were structured, what writerly voice the authors had employed, who read those volumes, and who might read mine.

Equally important, Sally was an enduring source of encouragement. She kept me optimistic and energized throughout the long and lonely endeavor that is book writing. Our conversations spanned years. During each she reminded me what I had accomplished, then identified the further progress now within reach.

As my draft chapters accumulated, Reuel Schiller joined Sally as a co-editor of the series, to its and my good fortune. Sally and Reuel were a crack pair of text massagers and arrangers. They also knew how to leverage their insights. When they saw room for improvement but lacked the time to provide detailed feedback (the series had other authors; they had day jobs–and lives), they recommended that I use development editors (a subject of an upcoming post).

Working with the series also meant that I had experienced editors in my corner as I navigated the unfamiliar, far-from-intuitive publishing process.  When I negotiated my contract, Sally knew which details mattered: commit to a number of images and ask for preapproval; ensure that the series can choose the copy editor and indexer; choose a publication deadline that can slip a month or two without endangering your tenure case.  Someone had to pay for editing, indexing, and the like. The series helped me ask my home institution for the funds by providing me evidence that peer institutions were already providing such funds to their junior faculty. When I became concerned with one or another of the press’s decisions, Sally and Reuel helped me sort out which items were worth raising in what ways. They were always willing to speak on my behalf to Cambridge, with whom they maintained a strong and cooperative relationship.

Mostly, the series steered me away from pitfalls. I never had to contemplate the disadvantages of a machine-made index because my contract let me hire the wonderful Derek Gottlieb. Where some authors tell horror stories of overseas copy editors who insert more typos than they correct, the series snagged for me the excellent Julie Hagen.

              With my book now out under the series imprint, I can add that I am happy being judged by the company I keep. Cambridge University Press’s august imprimatur makes it more likely that readers will pick up the book. The American Society for Legal History is my foremost academic home. It has also published many of the legal historians that I most admire, including the first books of several of the best up-and-coming scholars in the field.

--Sam Erman

McNairn on Deliberative Democracy in Upper Canada

Jeffrey L. McNairn, Queen’s University published The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791-1854 with the University of Toronto Press in 2016. From the publisher:

By the mid-nineteenth-century, "public opinion" emerged as a new form of authority in Upper Canada. Contemporaries came to believe that the best answer to common questions arose from deliberation among private individuals. Older conceptions of government, sociability and the relationship between knowledge and power were jettisoned for a new image of Upper Canada as a deliberative democracy. 

The Capacity to Judge asks what made widespread public debate about common issues possible; why it came to be seen as desirable, even essential; and how it was integrated into Upper Canada's constitutional and social self-image. Drawing on an international body of literature indebted to Jürgen Habermas and based on extensive research in period newspapers, Jeffrey L. McNairn argues that voluntary associations and the press created a reading public capable of reasoning on matters of state, and that the dynamics of political conflict invested that public with final authority. He traces how contemporaries grappled with the consequences as they scrutinized parliamentary, republican and radical options for institutionalizing public opinion. The Capacity to Judge concludes with a case study of deliberative democracy in action that serves as a sustained defense of the type of intellectual history the book as a whole exemplifies.

You can read more about the book here.