Constitutional Law, Civil Rights and Civil Liberties

Past clients have included such noted figures as artist Rockwell Kent, Paul Robeson, the Estate of Albert Einstein, Gerry Adams, Julian Bond, Freedom Rider James Peck, Jimmy Hoffa, Dr. Benjamin Spock, Dr. Daniel Ellsberg, Dr. Eqbal Ahmad, Congresswoman Bella Abzug and Congressmen Michael Harrington and Ronald Dellums, Hortensia Allende (widow of Chilean President Salvador Allende), and Corliss Lamont. The Firm’s cases have had a substantial impact in several areas of constitutional law. Among the most notable are the following:

First Amendment rights of speech and association

The Firm’s First Amendment litigation has been historic and continuous.

• The Firm litigated the first case in the history of the United States in which the Supreme Court declared an Act of Congress unconstitutional under the First Amendment, holding that Congress could not require a United States national to register to receive foreign literature deemed seditious. Lamont v. Postmaster General. Several years later, the Firm’s cases established the liability of the CIA for opening U.S. citizens’ foreign correspondence without a judicial warrant. Birnbaum v. United States; Lamont v. United States.
• In another case holding an Act of Congress invalid under the First Amendment, the Firm represented poet Allen Ginsberg, the Pacifica Foundation and others in a challenge to the constitutionality of the Helms Amendment to the Telecommunications Act. The Helms Amendment prohibited any broadcast of material deemed “indecent,” no matter what its social, political, or artistic value or interest. The United States Court of Appeals for the District of Columbia Circuit held that Congress could not establish a total ban on the broadcast of programming that might be found to be “indecent,” but rather must allow such broadcasts during reasonable time periods. Action for Children’s Television v. Federal Communications Commission.
• Steve Jackson Games v. United States Secret Service was the first case recognizing the role of the Internet in the system of freedom of expression, and is widely cited in subsequent decisions. The Firm litigated the case as special counsel to the Electronic Frontier Foundation, an organization dedicated to protecting privacy and free speech on the Internet that the Firm helped incorporate. The federal court issued a judgment against the Secret Service for violating the rights of the operator of a computer online bulletin board service (BBS) under the First Amendment and the United States Privacy Protection Act, and awarded the plaintiff damages and attorney fees.
• The result in Steve Jackson Games echoed an historic decision obtained by the Firm on behalf of the Socialist Workers Party against the FBI for operation of the FBI’s Cointelpro program, whereby the Bureau infiltrated and disrupted the Party and conducted illegal break-ins and bugging. Socialist Workers Party v. Attorney General. The case led directly to reforms in the FBI and other intelligence and law enforcement agencies, which remained in place until undermined by passage of the Patriot Act and unilateral actions by the Bush Administration.
• The Firm won a significant federal court of appeals ruling upholding the practice of religious proselytizers in placing handbills on automobiles parked on public streets. Krantz v. City of Dyer. In a similar case before a different federal court of appeals, the Firm successfully represented individuals selling political newspapers in New York City subway stations; the court held that such practices constituted protected speech and were subject only to reasonable safety restrictions. Wright v. NYC Transit Police.
• One of the more interesting and important First Amendment cases of recent years was McConnell v. Federal Election Commission, in which the Firm represented Professors Norman Dorsen, Burt Neuborne, and other former leaders of the American Civil Liberties Union as amicus curiae in the Supreme Court in successful defense of the McCain-Feingold Act’s limitations upon federal campaign spending. Parting ground with the official ACLU position, the amicus brief emphasized that strong support for First Amendment rights was not inconsistent with the compelling interest in limiting the influence of wealthy campaign contributors on the political process. The Court agreed that that interest justified most of the Act’s provisions.
• During the Vietnam War, the Firm was involved in the successful defense, on First Amendment grounds, of some of the leading opponents of the war. The Firm obtained a reversal of the conviction of Dr. Benjamin Spock for “conspiracy” to counsel evasion of the draft. Spock v. United States. It obtained dismissal of “national security” criminal charges against Dr. Daniel Ellsberg for releasing the Defense Department’s secret history of the Vietnam War (United States v. Ellsberg), on the ground that the Nixon administration had engaged in massive prosecutorial misconduct. And it obtained an acquittal of Dr. Eqbal Ahmad on charges of conspiring with the Reverends Daniel and Phillip Berrigan to kidnap Henry Kissinger. The Firm also won an important political rights decision in the Supreme Court on behalf of SNCC leader and Georgia Representative Julian Bond, who had been ousted from his seat in the Georgia Legislature because of his criticism of the Vietnam War. The Court ruled that Mr. Bond should be reinstated. Bond v. Floyd.
• Also during the Vietnam War, the Firm litigated numerous cases of religious conscientious objection. More recently, the Firm defended servicemen who registered conscientious objection to the Gulf War.
• The Firm litigated one of the leading cases involving the Foreign Agents Registration Act, the U.S. law that requires persons who act “at the order, request, or under the direction or control” of foreign governments or political movements to register with the U.S. government, disclose all their affairs to the U.S. government, and label their publications as “propaganda.” Irish Northern Aid v. Attorney General.
• The Firm successfully challenged the Executive’s effort pursuant to the Anti-Terrorism Act of 1987 to prohibit U.S. persons from establishing an information office in the United States at the behest of the Palestine Liberation Organization. Mendelsohn v. Meese.
• The Firm defended a leading U.S. journal on Latin America against government efforts to revoke its tax-exempt status because of its alleged “bias” in favor of radical Latin American governments and movements. In Re NACLA, North American Congress on Latin America.
• The Firm has also done significant work in recent years in defense of so-called “commercial speech.” It obtained a major victory on behalf of a New York lawyer who had been disciplined for advertising his services, and has represented a variety of enterprises in challenging government restrictions on their commercial speech. It successfully argued a commercial advertising appeal in the United States Court of Appeals for the Second Circuit.

First Amendment Religious Freedom Cases

The Firm has litigated scores of landmark cases involving religious rights, and has been responsible for establishing numerous landmark precedents in this area. For more information, click here.

Right to Travel

The Firm litigated the leading cases establishing both the right of United States citizens to travel abroad, and the related right of citizens to invite foreign nationals to travel to the United States for political discourse.

• The Firm established the constitutional status of the right to travel abroad in the landmark case of Kent v. Dulles. In later years, the Firm brought the major challenges to the United States ban on travel to Cuba, including all the Supreme Court challenges. United States v. Laub; Zemel v. Rusk; Regan v. Wald; Freedom to Travel Campaign v. Newcomb.
• The Firm established the conditional right of United States nationals to invite foreign speakers to enter the United States on temporary visas to participate in meetings, symposia and speeches on issues of public importance. Kleindienst v. Mandel; Allende v. Schultz.

Constitutional Separation of Powers

The Firm has litigated some of the leading cases concerning the relative powers of the three branches of the federal government.

• One of the more important cases of recent times was Dames & Moore v. Regan. The Firm represented the Central Bank of Iran in arguing that the Supreme Court should uphold the President’s power to resolve a foreign international crisis by suspending lawsuits in United States courts involving Iranian entities, and by establishing the Iran-United States Claims Tribunal to resolve claims of United States citizens against Iranian entities as well as claims between the two governments. The Court upheld the President’s authority in the emergency situation with which he was confronted at the time of the Iran-U.S. crisis of 1979-82.
• The Firm represented James R. Hoffa in challenging President Nixon’s imposition of a condition on his pardon prohibiting him from holding union office. Prior to issuance of the pardon, Hoffa was free to hold union office, and planned to run for President of the International Brotherhood of Teamsters. The condition, which Hoffa did not know about until after his release, thus imposed a new and additional punishment and restricted his First Amendment right of association. The question was whether the President had the power to impose such a new punishment in exercising his pardon power. Shortly after the case was argued in the United States Court of Appeals, Hoffa disappeared and never has been found. The appeal was not decided.
• During the Vietnam War, the Firm represented a group of Members of Congress, including Bella Abzug, Ronald Dellums, Parren Mitchell, and Herman Badillo, both as parties and as amicus curiae in the litigation yielding the only ruling in United States history that the Executive had engaged in a foreign war in violation of the Constitution. Judge Warren Judd agreed that the President’s actions in secretly bombing Cambodia without the approval of Congress infringed on the exclusive power of Congress to declare war. He enjoined the bombing campaign. The Court of Appeals reversed Judge Judd’s ruling in a sharply divided 2-1 decision. While the case was being litigated, Congress acted definitively to cut off all funding for the bombing campaign, so the case never reached the Supreme Court. The Firm also brought numerous “taxpayer” lawsuits across the United States to challenge the Vietnam War as unconstitutional for lack of a Congressional declaration of war.

Due Process, Civil Rights

• The Firm, on a pro bono basis, represented families of firefighters killed in the collapse of the World Trade Center on September 11 in their appeal from a lower court decision holding that they had waived their right to sue Motorola for providing faulty radios which had failed on prior occasions. Because the radios once again failed, the firefighters never received the radio call to leave the North Tower, and perished. In contrast, police officers in the building, who had radios manufactured by a different company, heard the May Day call and exited safely. The families argued that their acceptance of partial compensation from the Victims Compensation Fund did not waive their right to sue Motorola for its independent tortious acts, and that they had been denied due process of law because they were not given fair notice that acceptance would be deemed such a waiver. Despite what we believe to have been a powerful case factually, legally, and morally, the appeal, unfortunately, was unsuccessful.
• The Firm played a central role in establishing the right to due process in consideration of claims for political asylum by Haitian refugees. For years, Haitian refugees were returned to Haiti without an opportunity to present their claims for refugee status in a fair hearing. The Firm helped organize the Florida Haitian Refugee Center and engaged in a series of cases that ultimately held that such asylum seekers physically present in the United States were entitled to a hearing before an immigration judge. Ketley Jean Baptiste v. United States.
• The Firm represented an Air Force serviceman in a United States Court of Appeals case establishing that a court martial defendant in the United States military is entitled to a due process probable cause hearing before being detained. DeChamplain v. Lovelace. The Eighth Circuit’s decision in DeChamplain was then adopted by the United States Court of Military Appeals.
• The Firm represented Freedom Rider James Peck in the case establishing the duty of federal officials to protect the civil rights of individuals from violation by private conspiracies when such officials are aware of potential violations. Peck v. United States.
• The Firm represented a group of Iranian students studying at universities in the United States whom President Carter subjected to special registration requirements in response to the Iran-United States crisis in 1979. Narenji v. Civiletti.
• The Firm acted as co-counsel to Professor Alan Dershowitz of Harvard Law School in the appeal by Leona Helmsley of her conviction for tax evasion.