Lawyers blessed with intelligence, integrity and an enterprising spirit can usually make significant money. And lawyers who eschew the bigger financial rewards to pursue public service can still reasonably aspire to prominence if not wealth. Both kinds of careers are enviable. But there is a special kind of felicity in being able to combine these paths, doing well while also doing good, especially the kind of good that embodies some kind of conviction personal to the lawyer.
Such a practitioner was Hugh Clarke, about whom I wrote a couple of years ago, a rural attorney who became a leading practitioner in and legislator for Heywood County, Tennessee, but who always represented the African American poor for whatever they could pay, one of whom, blues singer Sleepy John Estes, memorialized him in a song that survives to this day. And such was Gilbert Roe (1864-1929), a successful Manhattan lawyer who advocated for a wide variety of free-thinking luminaries in the first three decades of the 20th century – clients like Emma Goldman, Lincoln Steffens, Margaret Sanger, Upton Sinclair, John Reed and Eugene Debs, some of the leading lights of journalism, social reform and radicalism in that era.
Roe, the subject of “Defending the Masses,” a new biography by Professor Eric Easton of the University of Baltimore School of Law, was no radical, even though the names of these well-known clients might suggest as much. Instead, Roe was a progressive Republican (not such a contradiction in terms then), a disciple and friend of Robert La Follette, Wisconsin governor and senator and presidential candidate. He developed a sophisticated New York business litigation practice, representing victims of insurance fraud and swindled investors. The radical clients like Goldman apparently came Roe’s way for the simple reason he had a modern conception of the free speech guarantees of the First Amendment in an era before that conception had achieved any currency.
Roe was a passionate adherent of the right to advocate peacefully against the existing social order and willing to help out those who engaged in such advocacy. This kept him quite busy, because the foes of such advocacy were legion: Postal Inspector Anthony Comstock was on the lookout for smut (a category that extended to birth control education and discussion of abortion); red-baiting prosecutors sought to protect the prerogatives, wealth and untouchability of the capitalist class by going after that class’s critics for sedition (not to mention deploying armies of goons to suppress unionism); and warmongers, led by the Wilson White House, treated as treasonous any challenge to the waging of the First World War or the conscription required to make that war possible. Judicial and popular acceptance of impunity for any kind of speech which did not pose a “clear and present danger” as we now understand the phrase still lay in the future while Roe was at work.
It must be said Roe was singularly unsuccessful in his efforts to protect the free speakers he defended. His client the socialist publication “The Masses” was driven out of business because its access to the mail was cut off despite Roe’s efforts. Socialist and presidential candidate Eugene Debs, in whose appeal from a sedition conviction Roe filed an amicus brief, went to prison for denouncing the draft. Benjamin Glassberg, a public school teacher who had taught his students Bolshevism might not be an unimitigated evil, lost his job and Roe could not get it back for him. And so forth. This dismal win/loss record stands as testimony not to Roe’s lack of skill but to the temper of the times. Twenty years later, with the same clients and the same issues, his win/loss record would have been much better. In the years between, Supreme Court Justice Oliver Wendell Holmes’ “clear and present danger” test, originally deployed as a sword against dissent (articulated in the affirmance of the conviction of a socialist for circulating antiwar literature in wartime), began to be transformed into a shield for dissent.
Roe never put himself personally in harm’s way. He was not so much an advocate of left-wing causes as an advocate for the freedom of others to espouse those causes. The muckraking journalists, the birth control educators, the draft resisters Roe represented: these might well engage in civil disobedience and be ready to face imprisonment, unemployment and/or disgrace for their views. Roe was content to mount what defenses the law and the times permitted and to work with a network of network of similarly-minded colleagues to develop theories and best practices in defense of free speech.
So there was a clear division of labor: the clients alone would take the risks, exposing themselves to the possible consequences; and Roe, win or lose, would try to protect the clients from those consequences if he could. Many of the clients were passionate about their causes, temperamental and irritable. Yet if Easton’s book is to be believed, none of the clients objected that Roe should have flown closer to the flames himself. Roe seems to have been loved by the majority of the clients he took on for such reasons, and he certainly got personally close to many of them. Emma Goldman was a guest at his house; he marched in suffragette parades; he received affectionate thank-yous from school teachers drummed out of their jobs for being “un-American.” Yet in his personal life he remained a comfortably bourgeois Republican lawyer enjoying comfortable domesticity.
Lawyers cannot soar too close to the flames themselves, because doing so may jeopardize their ability to protect others who do so.
It would be a false comparison to pit the career paths of the brilliant protestors Roe represented against Roe’s more sheltered and more conventional one. There are different sorts of heroics. Posterity benefits equally from access to birth control, the opening of horizons accomplished by socialist thinking, and the progressive heritage of good government on the one hand, and from the practical laying of the legal groundwork for free speech doctrine on the other, without which the other things may not come about at all. Though it may not have been apparent at the time, few lawyers are as fortunate as was Roe to have the times and their inclinations come together so productively.
Jack L.B. Gohn is partner emeritus with Gohn Hankey & Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.
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