Table Of ContentTHE RISE AND FALL
OF MORRIS ERNST,
FREE SPEECH RENEGADE
THE RISE
AND FALL OF
MORRIS ERNST,
FREE SPEECH
RENEGADE
Samantha Barbas
· ·
The University of Chicago Press
Chicago and London
The University of Chicago Press, Chicago 60637
The University of Chicago Press, Ltd., London
© 2021 by Samantha Barbas
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information, contact the University of Chicago Press, 1427 E. 60th St.,
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Published 2021
Printed in the United States of America
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ISBN- 13: 978- 0- 226- 65804- 9 (cloth)
ISBN- 13: 978- 0- 226- 65818- 6 (e- book)
DOI: https://doi.org/10.7208/chicago/9780226658186.001.0001
Library of Congress Cataloging-in-Publication Data
Names: Barbas, Samantha, author.
Title: The rise and fall of Morris Ernst, free speech renegade /
Samantha Barbas.
Description: Chicago : University of Chicago Press, 2021. |
Includes bibliographical references and index.
Identifiers: LCCN 2021001494 | ISBN 9780226658049 (cloth) |
ISBN 9780226658186 (e-book)
Subjects: LCSH: Ernst, Morris L. (Morris Leopold), 1888–1976. |
Civil rights—United States—Biography. | Lawyers—United
States—Biography.
Classification: LCC KF373.E7 B37 2021 | DDC 340.092 [B]—dc23
LC record available at https://lccn.loc.gov/2021001494
♾ This paper meets the requirements of ANSI/NISO Z39.48- 1992
(Permanence of Paper).
CONTENTS
Introduction · 1
Early Years 7
1
Williams 18
2 ·
New York 26
3 ·
Greenbaum, Wolff, and Ernst 38
4 ·
Adventures 50
5 ·
Free Speech Lawyer 67
6 ·
To the Pure 84
7 ·
The Sex Side of Life 99
8 ·
Sex Wins in America 116
9 ·
Troubled Times 127
10 ·
Freedom for the Thought That We Hate 141
11 ·
Ulysses 152
12 ·
The Importance of Being Ernst 176
13 ·
Defending the New Deal 190
14 ·
The Champion of Freedom 208
15 ·
The National Lawyers Guild 219
16 ·
Ernst vs. Hague 232
17 ·
Controversy in the ACLU 250
18 ·
The Turning Tide 270
19 ·
Ernst at His Worst 292
20 ·
Desperate Moves 314
21 ·
Utopia 1976 341
22 ·
Acknowledgments · 355
Notes · 357
Index · 411
INTRODUCTION
A small, dark- haired man with wire- rimmed glasses, bow tie, and
tweed jacket stood, dragged on his cigarette, and held up a dog-
eared book with a blue cover. Using the word fuck, he said, was a
sign of integrity.
The book was James Joyce’s Ulysses, the revolutionary, stream-
of- consciousness novel that had been banned under the notorious
Comstock laws for more than a decade. The scene was a New York
City courtroom in the fall of 1933, and the man was Morris Ernst, a
civil liberties lawyer who adored controversy.
Ernst sought to prove to the judge, John Woolsey, that Ulysses was
not obscene—that it would not corrupt even those members of so-
ciety “whose minds are open to such immoral influences.”1 The word
fuck, Ernst argued, was “cleaner and less revolting” than paraphra-
ses of it. It had “more integrity than a euphemism used every day in
every modern novel to describe precisely the same event.” That is, it
meant same thing as “they slept together.”
Replied Woolsey, “But, Counselor, that isn’t even usually the
truth!”2
Nevertheless, Woolsey ruled in favor of Ulysses, and the decision
was upheld on appeal. Legalized, Ulysses went on to sell thousands
of copies. This was a historic triumph for the nation’s literary cul-
ture, and it also made Ernst rich. He had made a shrewd deal with
the publisher: if he won the case, he would receive royalties on every
copy sold.3
Morris Ernst was one of the best- known liberal lawyers in the
country. An eminent attorney in private practice, an early leader of
the American Civil Liberties Union (ACLU) and its general counsel
1
2 · INTRODUCTION
for more than twenty- five years, Ernst was renowned for his work
in free speech, especially the fight against literary and artistic cen-
sorship. With his trademark bravado, Ernst came to the defense of
sex education manuals, nudist treatises, burlesque shows, and risqué
films and novels. In the decades before World War II, no one did
more than Ernst to extend legal protections to literature, art, the-
ater, and movies.4
Battling censorship was only one of Ernst’s free speech causes.
Believing that democracy, freedom, and human enlightenment de-
pended on “the free play of ideas in the marketplace of thought,”
Ernst worked tirelessly to expand that “marketplace” on a variety
of fronts. Ernst authored scores of books, columns, and articles in
which he publicized and popularized his civil libertarian views. In
1939 Ernst won a major Supreme Court ruling, Hague v. Commit-
tee for Industrial Organization, which established streets and parks
as “public forums,” constitutionally protected venues for public dis-
cussion. Convinced that social progress came from the clash of opin-
ions, even hateful ones, Ernst advocated the ACLU’s viewpoint-
neutral stance on free speech and defended the rights of Nazis he
abhorred.
The 1930s and ’40s saw a sea change in civil liberties and free
speech rights. The public and the courts moved toward greater tol-
erance of unpopular views and advocacy of free expression. After
decades of suppression, “speech started to win,” observed First
Amendment scholar Harry Kalven Jr.5 One of America’s preeminent
defenders of the rights to speak and to “see, read and hear,” as Kalven
put it, Ernst was a pivotal figure in this development. There was no
one in the country, opined one commentator, who had not benefited
from Ernst’s court victories.
* * *
Ernst was a diminutive, compact, energetic man, described by
friends as a “human dynamo,” and he thrived on causes and “cru-
sades,” as he called them. In the 1930s and ’40s, he was one of the na-
tion’s most prominent liberals, at the forefront of countless organiza-
INTRODUCTION · 3
tions and initiatives. For a while Ernst served as a legal advisor to the
NAACP and helped pioneer the legal strategies of the nascent civil
rights movement. Organized labor was another of Ernst’s “causes.”
Ernst helped his best friend, syndicated columnist Heywood Broun,
form the American Newspaper Guild, and in a landmark Supreme
Court case, successfully defended newspaper workers’ right to orga-
nize. In 1936 Ernst formed the National Lawyers Guild to unite attor-
neys working for progressive social goals. As counsel for Margaret
Sanger’s birth control movement, Ernst litigated cases that legalized
the dissemination of contraceptives and information about contra-
ception.
Ernst defended the underdog but at the same time had no qualms
about representing the wealthy and powerful. Ernst’s law firm of
Greenbaum, Wolff, and Ernst, which he cofounded in 1915, took civil
liberties cases pro bono, along with paid cases in banking, media,
and publishing law. His law practice was lucrative, and Ernst en-
joyed fine homes, fashionable suits, visits to swanky nightclubs, and
soirees with his celebrity friends, including Franklin and Eleanor
Roosevelt, novelist Edna Ferber, Heywood Broun, Fiorello La Guar-
dia, and J. Edgar Hoover. According to one magazine account:
To call him a lawyer is to designate only a small part of the role he
plays. He is a literary man. . . . writes serious books. . . . He is counsel
for The New Yorker, the American Newspaper Guild, and the ACLU.
His most intimate friends include many newspaper liberals and radi-
cals, and he is a member of the crowd of “highbrows” known as
the Algonquin Club. . . . In Washington he has entrée into offices of
dozens of leading public officials.6
Sincere ideological commitments propelled this “human dy-
namo” forward, as did profound insecurities. A Jew of relatively
humble background who had attended night law school and started
his career as a shirt-f actory manager and a furniture salesman, Ernst
saw himself as a perpetual outsider and craved public acceptance
and recognition. Ernst was a shameless self-p romoter, vain and ob-
