Speaks Softly, Carries the First Amendment

Burton Joseph represents Playboy, the Comic Book Legal Defense Fund and you

Published in 2006 Illinois Super Lawyers magazine

By James McKinley on January 11, 2006

Working for Playboy magazine isn’t always as sexy as it sounds. Over the last 15 years Burton Joseph, a special counsel at Playboy and the name partner in Chicago’s Joseph, Lichtenstein & Levinson, has helped defend a 52-year-old female convenience-store clerk who was arrested in Florida for selling Playboy to two 16-year-old boys, and a 49-year-old L.A. fire captain who was prohibited from reading the magazine during personal time at the firehouse. He has fought display restrictions in Cincinnati and an outright ban of the magazine on military bases. And in 2000, in U.S. v. Playboy Entertainment Group, Inc., he successfully argued that Congress cannot force cable operators to restrict sexually explicit programming for late-night viewing on the off chance that scrambled signals will be unscrambled and viewed by children. The vote was 5-4.

Joseph is first and foremost a free speech lawyer. Besides representing Playboy, he’s general counsel for the Comic Book Legal Defense Fund and a prime mover in the Media Coalition, a consortium that protests and often sues over censorship of books, radio, TV, movies and video games. He also works with and for the American Booksellers Association, the Magazine Publishers of America, the Chicago Lawyers for the Creative Arts, a host of prominent private clients, and just about any other medium or person whose First Amendment rights are threatened.
“I’m really kind of a lazy guy,” Joseph says, ignoring the evidence. “One of my daughters has a high-end winery, Fiddlehead Cellars, in California, so I go out there and to relax I help pulp grapes. And no, we don’t stomp them with our feet. We use machines.”
Joseph is far from happy with the current climate surrounding the First Amendment. “President Bush,” Joseph says, “has appointed ideologues to various communication posts. That’s why you see the push to squeeze the FCC to regulate cable and satellite TV and video games, all to ‘protect the public’s morals.’ There’s a legal term — ‘sumptuary’ — that describes laws based on religious belief. It’s not widely understood, but it’s out there.”
Facing what he perceives as a threat from sumptuary thinking, Joseph’s most vexing issue remains protecting the farthest fringes of free speech. He points out that the Playboy case ended with Justice Anthony Kennedy issuing a majority opinion that eliminated, according to Joseph, “a hierarchy of First Amendment rulings, so now ‘sexually explicit’ speech was as protected as political or religious speech.” He adds, “We have to hold the perimeter.”
Joseph speaks quietly but his worries are loud and broad-based. He says the Patriot Act in its provisions for securing library records “represents a serious intrusion” on a basic civil liberty, which is why Joseph stays devoted to the Freedom to Read Foundation and to the Library Bill of Rights. The Patriot Act, he says, is a “quick call to surrender liberties in the name of security.”
Joseph’s commitment to the cause of free speech started as a young lawyer when he volunteered to sit second chair in an ACLU suit against the city of Waukegan, Ill. The town’s leaders wanted to ban Henry Miller’s Tropic of Cancer. The suit ended with a conservative judge issuing a decision upholding the First Amendment. “That case sparked my interest,” he says.
The spark is fanned to full flame by the changing world of expression created by the Internet and its tricky relationship to the Constitution’s commerce clause, which says, in general, that one state cannot restrict or interfere with commerce from another state. “The Internet goes everywhere,” Joseph says. “What if some legislative body adopts restrictive laws? Then you can run the risk of putting something on the Internet in Massachusetts and it ends up in Oklahoma and you get indicted in Oklahoma. There have been a number of recent cases holding that the commerce clause prohibits the application of that kind of local community standards.”
Joseph worries what legislative reactions to this dilemma might be; he prefers judicial tests. He says the Constitution has lasted 200 years “because the courts have been flexible in applying it. But there are people who believe Supreme Court justices should only look at original intent. Look, it’s a different world now, technologically and socially and in every other regard.”
He adds, “When a country censors itself, it shows a lack of confidence in its own people. Freedom contemplates excess. Conversely, there will be those who tend to trim the perimeter.” Clearly Burton Joseph is not a man to trim the perimeter of the First Amendment.

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