SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DUI lawyer, Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_03 0:32

Hello, everybody. This is John Katz, a Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. I tell it to you just about all the time about how I have so much trouble containing my excitement. And the guests we have, I've hit the jackpot again. We've got Robert Corn Revere here. He's a lawyer in DC or wherever he's sitting right now. And Harvey Silverglate, who, if I'm not mistaken, he is a oh, I know he's a criminal defense lawyer, but doing more than that. And he's in Cambridge or thereabouts. I first met Harvey, I think over 20 years ago, through the National Association of Criminal Defense Lawyers. And I first met Bob well over 10 years ago. Let's start with Harvey since I met him first. Harvey, please introduce yourself to the audience.

SPEAKER_01 1:19

Well, I'm Harvey Silvergrape. I uh operate out of Cambridge and Boston, Massachusetts. I'm a criminal defense civil liberties lawyer. Uh and also um uh I defend a lot of students and faculty members uh against charges. Um and I'm an author.

SPEAKER_04 1:45

Okay.

SPEAKER_02 1:46

And Bob Hi, I'm Bob Corn Revere. Um I'm a First Amendment lawyer, had been in private practice for over 40 years, and am now chief counsel at FIRE, the Foundation for Individual Rights and Expression. FIRE is a nonprofit, nonpartisan, and Harvey being uh one of the founders of FIRE can tell you more about this, but a nonprofit, nonpartisan um um organization devoted to uh entirely to First Amendment defense and due process. Um and uh I have been here for the past year and a half.

SPEAKER_03 2:26

Okay, well, both of you, I first learned about the fire probably at least uh over 20 years ago. I know that the fire hooked me up with a uh, I won't say his name, even though the fire did a uh uh professor of computer science or whatever, uh, after he was excoriated by on the O'Reilly factory, he probably wasn't prepared to go on there. And if that wasn't bad enough, uh, then with all that exposure from being excoriated, I guess he got the attention of the feds, or maybe they knew about him anyway, and he had a six month trial. But uh what I'm interested most about the fire is uh what the group does related to um anything with the criminal law, including with criminalizing protesters, but if not, at least uh how to beat the prosecution. I'm also um from a selfish perspective, I don't know if you're willing to tell me. I'm very interested in knowing uh where you get your funds because I understand you have a substantial, substantial staff there, uh, whether it comes more from the right or the left. Um and you know, I I want to say I went there was a panel at the fire. I think it included you, Bob, uh, many years ago. And I think Ed Meese was on the panel or nearby. And I said to myself, okay, well, that's interesting. So Ed Meese was heavily involved in uh suppressing uh and and and uh and and prosecuting pornography, uh, but here he is uh standing up for uh, I guess speaking out of both sides of his mouth, you know, whereas I think uh all three of us uh believe strongly in in representing and defending the the First Amendment and free expression rights of everybody. So that's a mouthful, but if the two of you will run with that, I'd appreciate it.

SPEAKER_01 4:12

Go ahead. Well the fire is as you point out, nonpartisan. We couldn't care less if it's somebody from the right or somebody from the left or somebody from the center. Speech is the issue. And um we uh the I would say now the preeminent free speech organization in in the United States, the ACOU having become more of a um uh what's what's the word I'm looking for? Uh progressive organization. That's not to criticize them, but it's just to point out that they left the gaping hole and we've filled it.

SPEAKER_03 5:09

Okay, so so that's that's a big deal. I mean, I haven't been pleased with a lot of the ACLU's positions. I was uh on their uh local board in DC from uh 92 to 95 and uh so does that mean that uh the fire is going the way of the ACLU in terms of how they would fundraise, even saying, hey, you know, you're a member for just paying $35 a year?

SPEAKER_01 5:32

Well, we uh we are uh soliciting public members. We also solicit foundation grants, get quite a few of those. Um sort of uh we uh not not dissimilar from what the ACLU does.

SPEAKER_02 5:55

Yeah, and I would add that uh the funding comes primarily from individual donors, but we also have, as Harvey pointed out, some foundation grants. Our donations come from across the political spectrum, and the cases that we take on range across the political spectrum. And one of the things that we focus on very heavily is making sure that uh the internal staff of FIRE is intellectually and philosophically diverse, so that uh we are not just on a hobby horse for one position or another. Uh, one of the things that we like to say about free speech is that if it is protected, we defend it.

SPEAKER_03 6:36

Okay, so um what type of work is the fire doing related to anything uh involving the criminal law, including suppression of uh protesters and other activists?

SPEAKER_02 6:54

Well, we are um heavily involved in uh defending the right to protest. Uh, and one of the ways in which we do that is try and make sure that the uh government remains viewpoint neutral in how it uh um approaches any kind of protest activities. We pay close attention to advances in criminal law, and it's not just protest activities, there are a range of areas. As I mentioned, we've extended beyond covering just free speech on college campuses to free speech in society at large, and one of the growth areas, sadly, is the growing tendency of governments from the federal government to state governments to try and regulate online speech, including creating criminal penalties for various kinds of online speech, um, as well as regulation of use of social media. We are actively involved in challenging those laws across the country, uh, as well as um engaging in individual instances of defending those laws. One of the uh successful stories from this year, our first Supreme Court victory involves a woman who is criminally charged in Texas for um essentially misusing um uh government documents or soliciting uh information in government documents, which by the way is what reporters do. She was essentially uh convicted for asking a question for information that had not yet been publicly released. Uh she was convicted that conviction was upheld by the uh Fifth Circuit, and uh we filed a petition to the Supreme Court, which uh granted vacated and remanded that decision without uh the necessity of going to oral argument. It simply ruled that the Fifth Circuit had uh applied the wrong constitutional standard.

SPEAKER_03 8:56

Uh what is the uh name of that case and when did it appear in the Supreme Court?

SPEAKER_02 9:01

Villarreal versus Alanis. Uh it was decided right at the beginning of this term, uh, based on our um petition that we filed in the last term.

SPEAKER_03 9:13

And who were the lead lawyers on that?

SPEAKER_02 9:16

Lead lawyers were J.T. Morris, who is one of our senior counsel, and he's the one who brought that case to us when he joined FIRE. Uh, I was also on the brief, uh, as well as I believe Will Creeley.

SPEAKER_03 9:31

And to what extent has the fire been uh do you call it the fire or fire?

SPEAKER_02 9:36

Just fire is fine.

SPEAKER_03 9:38

Okay.

SPEAKER_02 9:38

It's like Facebook used to be the Facebook, and then it just became Facebook. Just call us fire.

SPEAKER_03 9:46

To what extent is fire currently involved in defending people's First Amendment rights uh at the trial level that involves any uh prosecutions or threat of prosecution?

SPEAKER_02 10:03

Well, we um have been involved in a case involving an individual in Georgia who was uh arrested for uh having signs outside city hall saying, God bless homeless vets. Um we have been involved in a case uh involving someone who was monitoring the police and uh his home was raided because of what they thought was unfair criticism uh of the police. Um basically, whenever these kinds of cases come up and we are in touch with potential um uh clients, uh we um we are available to uh to defend them. Okay, so what was the name of the case involving the uh defendant about homeless vets and the name of the defendant involving, I think, uh you're now asking me about cases in which I am not uh um uh directly involved, uh, and I would have to go back and consult the list to I uh to uh give you the the the names of each of those cases.

SPEAKER_03 11:09

Okay, well let me back up here. I'm fascinated with both your histories. Uh if we can start with Harvey. Harvey, how did you end up uh becoming a lawyer, doing criminal defense and civil liberties? And uh were you uh were you eligible for the Vietnam draft and did you did you get drafted?

SPEAKER_01 11:29

Um let me start with at the beginning. I was an undergraduate at Princeton. I was a pre-med. The summer between my sophomore and junior year, I went to Paris and I thought about my life. And I realized my parents, as the parents of all Jewish males at the time, wanted me to be a doctor. But I didn't want to be a doctor. So I came back and I switched to pre-law. I was more interested in the problems that people cause for people than than I was in the problems that germs cause for people. And I went to Harvard Law School and I met the love of my life who is a native Canta what they call Cantabridgian, and I stayed here. Um so I do criminal defense and civil liberties cases just about exclusively and um I'm not sure how much more I can say about that. I did represent people who refused induction in the Vietnam War. I didn't I we couldn't win those cases, but I did not have a single client who went to prison. They all did alternative service and that just showed you how unpopular that war was, that the judges refused to send anybody to prison if they had if they were willing to uh to serve in a civilian capacity.

SPEAKER_03 13:20

When you were representing the uh the people who uh resisted the draft, were you with a law firm at the time? And how did your clients find you?

SPEAKER_01 13:30

Um I was at a law firm. It was my own. I worked for a lawyer for for only one year. Um uh training grenotery, a small boutique criminal law firm. But I started my own practice with Norman Zolkine, Zolkine and Silver Glade, and that morphed into um Silver Glate and Gertner when I joined with Nancy Gertner when uh Norman's sort of a long, sad story. His his then wife decided that she was going to be a partner of ours, and I did not want to be a partner because I saw that the marriage was going on the rocks, and so I grabbed Nancy and went across the street and started civil glad and Gertner, and that was that was uh that that firm uh continued until she became a federal judge. She was uh a friend of the Clintons, and when Bill Clinton made it to the White House, he named her a federal judge.

SPEAKER_03 14:34

And uh, Bob, I think the first time I heard your name was uh when I knew you were very involved with the Cato Institute, if I'm not mistaken. How did you come to uh being a lawyer and being involved with uh First Amendment work, also the Cato Institute, and finally uh FIRE?

SPEAKER_02 14:53

Oh do you want to start at the beginning on that? I um uh I had been heavily involved in debate, both in high school and college, went to college on a debate scholarship, and so I was sort of on a path toward law school through um all of that time, and um then went to graduate school on basically a graduate assistantship to coach debate. Um, but at the same time, I had gotten involved in journalism, uh, reported for um uh hometown local newspaper, uh doing various government beats and doing feature stories, doing some photography. And so I was very interested in journalism. And so one of my undergraduate majors was in journalism. And a friend of mine on the newspaper said to me as we were having, let's see, after deadline drinks one evening, uh, that uh he knew I was headed to law school, but had I ever thought of doing something in media or const or communications law. And so that kind of planted a seed, but also I'm sort of honre by nature and uh uh don't like bullies. Uh, and so I think that kind of naturally inclined me toward First Amendment law as well. Uh and so when I finally finished graduate school and was looking for law schools, I looked for ways to get involved in um uh First Amendment. And uh it was at a time when when you told people that you wanted to be a First Amendment lawyer, they would basically respond by saying, Well, that's all very nice, but no one nobody can really make a living doing that. Uh and so um I kept at it, uh took on uh um pro bono cases. Uh primarily my career before fire was to work in big law firms uh and um look for ways to get involved. I did spend uh four years working at the Federal Communications Commission, uh an organization I now prefer to think of as the defendant, but uh it uh was uh uh a very educational time in my career, and it well positioned me for the time after my government service to uh then begin challenging the kinds of speech restrictive regulations that uh federal agencies like that impose. Um I'd also been interested in libertarian ideas, and that led me to become a um an adjunct scholar for Cato Institute. And so uh I've maintained that affiliation over the years as well. Uh one of the ways, John, in which we met, as you may recall, was um at meetings of the First Amendment Lawyers Association, and um that is an association first started out with the adult communications bar, people who mainly did uh criminal defense in um uh adult speech cases, um, but it has now expanded to the point where it uh represents and and has members from all branches of First Amendment law, and I've been proud to be a past president of that organization. But it means that I've been practicing this kind of law, First Amendment law, for over 40 years, and um continue, will continue to do that for the foreseeably future.

SPEAKER_01 18:19

Now, Bob doesn't know this, has no way of knowing this, but I was a journalist before I was a lawyer. I worked for the Ridgewood News, I worked for the Bergham Record in Hackensack, New Jersey, and um I actually covered Martin Luther King's I Have a Dream speech in Washington, D.C. Uh I was there, standing right underneath him. And um I continued my interest in journalism by writing for the Boston Phoenix. Oh great. I was the Freedom March columnist, that is the civil liberties columnist for the Boston Phoenix. All the while I was primarily a criminal defense and civil liberties lawyer.

SPEAKER_03 19:04

Well, of course, uh speaking of the the uh of FARS roots when it when it started dealing with education, I graduated from Tufts University. Did did Tufts ever ever get outside the red zone as far as being rated on uh on free speech?

SPEAKER_02 19:20

I would have to check uh uh this year's um this year's list. Uh I can't remember off the top of my head, but uh for those who aren't familiar with it, every year we do rate campuses across the United States on how they fare on their free speech policies, both in terms of their support for uh free speech as broadly defined, and what their experience has been?

SPEAKER_01 19:46

Um I can answer the question. I think Tufts is uh remains pretty low on that list.

SPEAKER_03 19:52

Well, I I should have some say on that. Now, Bob, so during your four years at the FCC, were you dealing with any free speech issues and were you ever on the wrong side of it? And a uh a selfish question were you ever there at overlapping times when my Tai Chi teacher uh Len Kennedy was over there?

SPEAKER_02 20:11

I know Len very well, and yes, we did overlap. Uh Len was an advisor to another of the commissioners uh while I was there. He's uh a tremendously uh honorable and intelligent uh person, even though we didn't always agree on issues. Certainly our commissioners didn't always agree on issues, but uh we were we were there at a time when the FCC was going through uh through quite a bit of change. Uh one of the things that I knew was going to be a challenge going to work for a federal agency like the Federal Communications Commission is that I knew that it was an agency that was taking actions that personally I believed uh were inconsistent with the First Amendment. But I also knew that I was going in to be a counselor. I was going in to be a legal advisor to a commissioner. And so my personal views really didn't matter. My job was there to be uh the best uh legal advisor I could be to that commissioner, who uh fortunately I had the very good fortune to be a legal advisor to Commissioner Jim Cuelo, who was later named chairman of the FCC. I became his chief counsel during that time. And also during that time, I tried to tell him the best I could what I thought the First Amendment limits were to certain things that the um uh the FCC was doing or planning to do. And he would then weigh that in with the other input that he was getting and then make uh the decision that he was going to make. Um ultimately I went to him and and told him that uh uh there were decisions that the FCC was making in the area of broadcasting decency that I thought could not be reconciled with the First Amendment. And eventually that led me to ask him if uh he wouldn't mind if I recused myself from those uh those cases because I simply thought that in good conscience uh I couldn't participate in them. Fortunately, he didn't fire me and stayed on as his advisor and one of the other legal advisors on the uh in that office, then took over the duties for that particular area of law. But I would say most of the time, my commissioner uh was on the right side of the First Amendment. And um, so I didn't face any personal um conflicts over uh whether or not I could be faithful in giving him advice.

SPEAKER_03 22:46

Well, you know, when I uh had my first legal job, I started law school in 1986. It was then then named Federal Home Loan Bank Board, which became the Office of Supervision, which became part of the Office of Commission of Uh Currency or whatever that's called, or control of the concert currency. And one of their political appointees over in the legal division uh did come over from the FCC and he was a Reagan political appointee. And I said to him, you know, because I was only there for the summer, so who cared if they didn't keep me? Uh, I said, you know, what role, if any, did you have with uh all this increased um uh enforcement against indecency? And he kind of smirked at me and he said, Well, you know, some decency groups uh contacted the FCC, reminded us that there were these decency laws. So we went ahead and pursued it. And I thought that was a lame answer, and there was no reason for me to get into a debate about it, and there was no internet for me to find out what his what his role was. But uh he he clearly didn't seek to recuse himself there, Bob.

SPEAKER_02 23:49

Well, that that is one of the things about working for government. Uh, you are working with people who are political appointees, and it's hard to divorce what the agency is doing from some of those pressures. Uh the most the public officials that I've worked with that I admire most are the ones that pay careful attention to their constitutional responsibilities. And so um uh hopefully uh you can reach a point where more often than not the constitutional answer is the one that prevails.

SPEAKER_03 24:23

Okay, the name of this show is Beat the Prosecution. I want to get into it right now with Harvey and Bob about your uh trial experience, both in the uh civil and uh and criminal context, especially the criminal context. And Harvey, uh, since you uh include criminal work, uh who have been your main uh mentors and and and the main people you've you've learned from? Because not always our mentors, often the people we see in court.

SPEAKER_01 24:51

Well, when I started, I didn't really have mentors. Um I was a mentor. Um my first major case was representing a hundred Harvard students who were arrested for a Vietnam War protest. They um they carried the dean of uh students out of his office in the ch in his chair. He refused to get out of his chair. They unceremoniously deposited him on the lawn. This is Archie Epps. Unceremoniously deposited him on the lawn and took over the building. President Nathan Pusey called in the National Guard and the police and they routed them. They went to trial, Norman Zolkine, then Zolkine and Silverglade, my first law firm. And I tried them. And the evidence was absolutely clear that they were trespassing on the property of the president and fellows of Harvard College, as it's known. And the jurors were so uh offended by the war, they acquitted all of them.

SPEAKER_05 26:14

Excellent.

SPEAKER_01 26:15

And um that was the end of the they actually acquitted the first 30, the prosecutor divided them up into groups of 30 because they couldn't fit more than that in the courtroom. And at that point, the district attorney saw the handwriting on the wall and I'll prust those uh the remaining cases. So that was my first foray in the criminal law, and it was aided by a very unpopular war, get an acquittal. But over the years, I've gotten a lot of acquittals in cases where I didn't think I would get them, a couple of convictions in cases where I thought I would get acquittals. But by and large, I've had a very successful career in the in the criminal criminal law.

SPEAKER_03 27:08

Okay, before I seek more details on that, I'd like to know about your trial experience, Bob, including with juries.

SPEAKER_02 27:15

Okay. Well, probably if we want to talk about criminal experience, the most prominent one would have been United States versus Stalliano, which was an attempt by the federal government to prosecute uh producer of adult movies, John Stalliano. It was the last major obscenity uh prosecution in the District of Columbia. Um actually the first one that had been brought in decades, and then the last one because it was an unsuccessful prosecution. I was honored to uh be working with two other excellent lawyers who are you know captains of the uh uh the criminal bar and also in the First Amendment Lawyers Association, Paul Cambria out of Buffalo and Louis Serkin out of Cincinnati. Um work with them along with a California lawyer named Al Gelbard. I was local counsel in the case, and we um uh defendant John Staliano against this uh uh against this prosecution. And um even though it was let's just say challenging, um, given uh the uh the uh uh the nature of the charges and a judge who was not sympathetic whatsoever, uh the case was dismissed at the close of the government's case uh because they had simply failed to make their case going in. Uh we also, from interviews with the jurors after the failed prosecution, um, made it clear that they would not have convicted, uh, even just hearing the government side of the case. Uh and so it was uh um uh a really excellent experience. My other experience in criminal law has to do with one that was not such a happy ending, and it's not uh uh over yet given the appellate process, but that was in assisting in the defense of the former owners of Backpage.com uh who were prosecuted um under the Travel Act for essentially facilitating prostitution. Um there uh was uh um a defense against a very heavy-handed uh government approach that closed down the website and uh uh it was a years-long effort. Um there were also uh civil components and various uh civil claims around the country that we worked on. Um but uh the um prosecution of Backpage did result in having that that website closed down, and there were a couple of convictions that emerged, although nothing nearly as successful as what the government uh wanted out of the case. My primary experience, though, has really been in the civil area, and a lot of it has involved appellate work and challenges to various kinds of laws, including criminal laws. Uh, but the most prominent one probably be uh United States versus Playboy Entertainment Group, where on behalf of Playboy Enterprises, we successfully challenged a provision, Section 505 of the Telecommunications Act of 1996, a case that ultimately went to the Supreme Court in 1999 and resulted in that provision being struck down the following year. Uh, also worked on a uh um a case involving a challenge to a um federal crush video law uh that was decided by the Supreme Court in United States. I I was uh second chair on that case with Patricia Millette, who is currently uh a judge on the DC circuit. Um and um we had that provision successfully struck down by the Supreme Court in the United States versus Stevens.

SPEAKER_03 31:08

That was fantastic. You know, you know, uh I think one or more people said to me, how can you come down in favor of the result in this case? And you're you're an animal rights person. Yeah, I'm a vegan for animal rights reasons. But one of the one of the divisions between me and a lot of the animal rights people is, you know, one day, for instance, I was coming out of the subway when I was working at my first law firm. This was in DC in the early 90s, and uh there was some animal rights person there, it may have been even from PETA, and they were trying to promote some statute. And I said, let me take a look at it. And I said, I'm not gonna support this. She said, Why not? I said it has a criminal provision in it. And uh, you know, when I went to this uh vegan advocacy uh gathering around 2022, I think it was, in uh in Arlington, you know, I I said to some of the activists, I said, that's where uh that's where you know you and I uh uh differ. I guess I'm in the minority there. Uh but you know, just like Harvey, but like both of you say, uh, this is about uh free speeches, free speeches, free speech. And uh for me, uh having a uh uh a much uh uh a shrunk criminal justice system and fewer crimes is what's important to me, uh no matter how few. And uh right?

SPEAKER_02 32:24

That's right. I mean, it's the way most people approach free speech issues, as the late great Nat Hadoff used to say. Most people's belief is free speech for me, but not for thee. And so they're perfectly willing to have their preferences about what speech is acceptable written into law, and to, as Justice Oliver Wendell Holmes would have said, to sweep away all opposition. But that's the whole point of defending free speech and defending it on a nonpartisan basis. That is, it just isn't the government's place to tell us what to read, think, or feel.

SPEAKER_03 33:00

Right now, uh Harvey, so for for that case involving uh caring uh Mr. Epps, Dean Epps, President Epps uh out on his chair, uh, with you representing these scores of defendants, how did you avoid any conflicts among them, or were they all just acting in solidarity? I mean, I know a lot of today's activists act in solidarity, but but was it that way with your clients?

SPEAKER_01 33:26

They had waived the conflicts. Um there weren't no conflicts, but we had them waived anyway.

SPEAKER_03 33:37

And it was as easy as that?

SPEAKER_01 33:39

Well, they they couldn't try them one at a time, it would have taken a year, two years. I also should mention that um I've done a lot of cases with Alan Dershowitz. Um he arrived at Harvard Law School as a first-year professor the year I arrived as a first-year student. And um for the 50 years that he was at Harvard, we did cases together, and quite a few of those cases were obscenity cases. We um we we represented Harry Reims, I am Curious Yellow. Um we um we we um there was a oh there was um there was another case um in which the issue was whether um there could be an obscenity prosecution uh for a film in a movie theater as long as um the uh people who were watching it were watching it voluntarily, and we pointed out that um they had all gone into the theater knowing full well what was playing on the screen, because the the uh the the posters outside the theater um made it very clear. And we won that case uh on the ground that anything could be played inside a theater as long as you gave adequate notice as to what was on the screen.

unknown 35:14

Yeah.

SPEAKER_02 35:14

And that ties in a little bit to part of what our defense was in the Staliano case, where one of the points we made to the jury was they were the only people in America being forced to watch these films involuntarily. Right.

SPEAKER_03 35:32

Okay. Now before I get to for more on the Stalliano case, so Harvey, with this case you're working on with uh with Alan Dershowitz uh about uh going to the uh these adult theaters, what what what was the result of that and and what was the forum?

SPEAKER_01 35:48

The jury acquitted.

SPEAKER_03 35:51

Was it federal court?

SPEAKER_01 35:53

It was a federal court, yes.

SPEAKER_03 35:56

Was it uh a misdemeanor prosecution or felony?

SPEAKER_01 36:02

I believe it was a felony. I'm pretty sure it was a felony.

SPEAKER_03 36:06

Okay, because I asked that because you know, when when I uh did my podcast interview with Louis Serkin, who of course uh uh Bob mentioned, um, you know, I I didn't realize until he was talking there was this golden age when there were plenty of obscenity prosecutions that were just misdemeanor in the misdemeanor level.

SPEAKER_02 36:22

Some would describe this as a golden age, someone would call it the dark ages.

SPEAKER_03 36:26

Well, uh right. Uh uh I saw uh at least a part of the dark ages where you where you could have the balls are are are they are are the I'll just say that word, you can have the gumption to go ahead and go to trial since you only faced a misdemeanor, uh uh misdemeanor exposure rather than felony exposure. Um so so Bob, you know, you were talking about backpage, and uh, you know, I've done a lot of prostitution defense, and a lot of times when they do these uh when they do these stings here, uh these prostitution things, they they involve these online, uh, these online media where uh people posing to be prostitutes go on to it used to be back page and uh and now it's other places because the actual uh the the actual providers of of sexual service were going on to backpage. So, you know, yes, I I agree with you. This was crazy that it was even prosecuted, uh let alone that there were convictions. Were there actually uh uh incarceration sentences involved with that?

SPEAKER_02 37:33

Uh there were, and um I'll get to that in a minute. But let me just describe the setting of this a little bit to explain how crazy this is. This isn't a prosecution of someone who wrote the ad, a rat ad for a service that is illegal and then posted it somewhere, because as we all know, speech in favor of ill or speech advertising an illegal transaction is not protected by the First Amendment. But we're talking about the publishers of a platform that make it available for third parties to come online and uh and post whatever kinds of ads they're going to post for um all kinds of services, some of which may be uh illegal. And the point of this prosecution was to say that simply making that platform available is what made you liable for the acts of third parties. Uh and in this case, the government tried to um uh allege that there were some 40 uh advertisements for what they that weren't obviously for sex for money transactions, but nonetheless they alleged they were, and we're trying to charge the owners of the service who had no awareness of these specific ads, had never seen them, to say that they had the requisite intent to be promoting a criminal activity. Now it's telling that uh the uh lead defendant and the person that I worked with the most, um, who was one of the uh founders of Backpage was not convicted for any uh transactions related to the online service because uh he really had nothing to do with any particular ads, but was convicted on one count of concealing a foreign transfer of money, which was um uh uh hard to understand to say the least, since this these were all fund transfers that he had duly reported on federal forms, um uh uh uh and there was no illegal transaction involved whatsoever. That's part of the subject of the appeal uh of this conviction. He was uh sentenced to five years uh for that.

SPEAKER_03 39:57

Five years just for that count.

SPEAKER_02 39:59

Yes. Uh and so uh as I say, the case is ongoing. And and what what jurisdiction I'm by the way, I should tell you, I have not been involved in that case since before I left my law firm, uh Davis Termain, that I had been at for 20 years and then uh uh have come to fire. But uh at the time had worked with Backpage and those people involved with it on a whole variety of cases involving um uh First Amendment issues, a lot of it civil defense, some of it uh uh Section 1983 cases challenging uh various kinds of government actions that restricted uh uh First Amendment rights, and then did get involved in the criminal defense, although I was not the principal criminal defense lawyer in that case. And then when uh uh Davis Wright uh uh ceased to represent uh uh the backpage founders, uh that's when my involvement ended, and I have not been involved since I've been at fire. But having worked in that case in various capacities over the years, I'm I am familiar with the injustice involved.

SPEAKER_03 41:10

What jurisdiction was the uh the the backpage case being prosecuted?

SPEAKER_02 41:15

This was in federal court in Arizona.

SPEAKER_03 41:19

Got it. Um now, Harvey, uh about how many jury trials have you done and uh what are some of your key approaches for winning in jury trials? Uh and you might end up just saying preparation, preparation, preparation, the positive method for cross-exam. Whatever you tell us, I want to hear it.

SPEAKER_01 41:41

Well uh I I can't rem I can't remember how many jury trials I I've tried in my career. Remember, I started 1964 and 1967. So that's a long time, but it's been many dozens. Um and um I primarily uh tried criminal cases, uh, including obscenity cases, which are criminal prosecutions. Um and I've won um the majority of them. Uh more more of the obscenity cases than I have won criminal cases. Because uh I think jurors understand that this they're not hurting anybody.

SPEAKER_03 42:42

Um and um the the so-called victims or volunteers um there are no victims and so um that's in my experience Well I mean you're just being modest you must do you must do something to uh to increase your chances of winning a trial something at least preparation Well preparation of course um but they're uh I I have found that the rarer and rarer occasions as time went on that prosecutors brought up sanity prosecutions.

SPEAKER_01 43:38

Um I I found it easier to win those than bank robber, for example.

SPEAKER_05 43:47

Okay.

SPEAKER_03 43:48

Now uh more of a selfish question or question of curiosity. To what extent, if any, was Ed Mees involved with the uh uh the creation Or or the uh uh administration of of fire, and what were your interactions with them, if any, and what to discuss with him about his going on?

SPEAKER_02 44:10

I've had zero interactions with Ed Meese. He's not involved with fire, and I'm and he was just on a panel with your reference to being at a panel with with Ed Meese, because I've never been on a panel with Ed Meese. Um, I can tell you from the perspective of the First Amendment Lawyers Association that the Meese Commission report on obscenity, uh, which was really just a thinly veiled effort to uh overturn the Kennedy administration's um task force on obscenity, um, did a lot to invigorate the criminal defense bar of members of the First Amendment Lawyers Association because it represented a turn of the federal government toward greater enforcement of those laws, including some really nefarious practices of trying to bring multiple prosecutions in multiple jurisdictions simply to exhaust the resources of uh potential defendants. Um and uh, you know, that's my knowledge of Ed Meese.

SPEAKER_01 45:10

Well, my my knowledge of Edneese is scant, but I did uh show up once. I was invited to the Federalist Society to give a talk, and um Ed Nies is there. Um and I thanked him for uh for enhancing my law practice.

SPEAKER_03 45:35

All right.

SPEAKER_02 45:35

Well, I stand that must be that golden age you were talking about earlier.

SPEAKER_03 45:39

No, not gold. Uh I stand corrected about that. Uh Bob, I think there were there were separate panels uh over at the uh uh uh the National Press Club. I think you were maybe at one of them. And there was another one where Mies was there where Nadine Strawsen was there, and Nadine was able to say something positive about Ed. And that that would be a stretch to find anyway.

SPEAKER_02 46:02

Because Nadine is a better person than all of us, and and she's able to say something nice about anybody.

SPEAKER_03 46:10

Right. So she was able to say something about how she had some overlap somewhere on First Amendment defense with Ed. So uh I'll I'll leave it at that. And uh if if we can go further. Uh now uh Bob, uh, about this uh Staliano case, why on earth would the prosecutors have chosen uh DC, or were they just trying to be more fair about it versus the time? What was it with the guy who ran Adam and Eve and uh Phil Harvey, right?

SPEAKER_02 46:39

It was Phil Harvey. And that was actually Phil was one of the principal people who fought back against that effort of multiple prosecutions in multiple jurisdictions, right? And uh Phil was represented, I believe, by the great Bruce Ennis, uh who uh was one of the really titans of the uh the First Amendment bar. Uh Phil also later created DKT Liberty Project, who we worked with in a number of cases and had uh done um amicus efforts along with DK DKT Liberty Project. Sadly, uh uh we lost Phil a couple of years ago where he uh uh died. But Phil had a long and productive and really uh celebrated life and was a stalwart defender of uh First Amendment liberties, both being on the recipient of um overbearing government actions, but also as a matter of principle after he got through that.

SPEAKER_03 47:41

Okay, so here's a question about Cato then. Okay. The only time I saw and heard Bill Harvey in person was at the Cato Institute. It was probably 15 years ago. And I don't know if he made up the phrase or he got it from someone else, but it was great. He said, talk about how America has a bipolar uh relationship with sex, and it definitely does. Uh so would there have been people at the Cato Institute who would have even opposed Phil Harvey's being there? Are they uh at least uh at least honorable enough to the libertarian uh uh definition to allow that? But is is Cato uh if Cato sends uh if Cato has people going over to presidential administrations, is it true that they're more likely going to the Republican administrations than the Democratic administrations?

SPEAKER_02 48:30

I I really can't speak to the politics of it. I all I can tell you is that I've been an adjunct scholar at Cato for probably two and a half decades. Um the people that I've met there are principled libertarians, which means that uh if there are efforts to restrict speech, that they will oppose them. Uh that has always been true, as far as I know, of speech involving sex as well. Uh it's done no surprise to me at all if you would have seen Phil Harvey at a Cato event, uh, because he was uh had a lot in common, and I think you would describe him as essentially libertarian as well.

SPEAKER_01 49:14

I should add that I'm an adjunct scholar at Cato as well.

SPEAKER_03 49:18

Okay, we got we got two scholars from Cato. Uh so Bob, uh do you know why the prosecutors chose to prosecute Staliano in DC versus in a more prosecutorial-friendly jurisdiction?

SPEAKER_02 49:32

You know, we wondered about that from the beginning, because as I mentioned earlier, it was the first uh obscenity prosecution in the district in some 30 years. And the best we could tell, because the prosecutors didn't say here's why we brought it in this jurisdiction, but as best I could tell, they were uh Justice Department lawyers based in DC, and they found it more convenient to bring the prosecution where they lived. And uh so they they did that, and it didn't turn out so well for them.

SPEAKER_03 50:06

Okay, now I've been talking a lot about trials, but of course, criminal defense and anything involving litigation involves appeals too. So, to what extent have both of you been involved with appellate work and also uh injunctive uh relief work?

SPEAKER_02 50:23

That that's been primarily the area, the area that I've been involved with, both uh injunctive relief seeking injunctions from uh various kinds of uh uh um government um provisions and laws, uh, as well as um I would say most of my work has been on the appellate side rather than the uh the trial side. Um and as I mentioned earlier, some of those involve challenging either FCC regulations or federal laws, uh and in including the uh Stevens and Playboy cases. A lot of it involved FCC work, in that uh um, you know, having been at that agency for four years, uh a lot of the work that I did when I first came back out to private practice was to uh work on FCC-related cases, including uh cases defending uh television networks, broadcast networks against the broadcast and decency rules. And so when there was the famous wardrobe malfunction at the uh the uh 2004 Super Bowl. Exactly. Uh I was involved in uh defending CBS and ultimately after I hate to say this, eight years of litigation over an event that lasted nine sixteenths of a second, uh, we forced the FCC to pay back the $550,000 fine that the government had imposed on the CBS network.

SPEAKER_05 51:55

Excellent.

SPEAKER_03 51:57

And Harvey. How about your appellate work uh and your injunctive work expands?

SPEAKER_01 52:07

Well, um non remarkable. Um when I lost the case I would appeal. We um we won most of them. Um and uh injunctive cases, uh, I think I only had about two of those. Successful, by the way.

SPEAKER_02 52:34

One of them that I was involved in actually involved both injunctive relief and an appeal, and also harkens back to the work I was talking about earlier on Backpage.com. In 2015, uh, the sheriff of Cook County, uh Sheriff Tom Dart, had been putting pressure on uh Visa and MasterCard not to do transactions uh for Backpage.com. Sort of a classic jawboning situation where you have the government threatening the use of power to restrict speech that it doesn't like. Uh we brought a Section 1983 case against Sheriff Dart and uh won a TRO, but then lost the preliminary injunction. We appealed to the Seventh Circuit, and it's probably the fastest decision that I've ever received. Uh, we had a panel that included Judge Posner uh and uh argued the appeal on a Friday morning, and by Monday we had a decision, a provisional decision, ordering the district court to impose the injunction on Sheriff Dart for his unconstitutional activities. Uh the uh full opinion came out some three weeks later. And I'm also proud to say that that opinion in Backpage.com versus Dart was the case that the Supreme Court this past term drew on when it issued its unanimous decision striking down government jaw boning in NRA versus Volo. So um it was both a successful injunction and a successful appeal.

SPEAKER_03 54:16

Okay, so I have had uh about a month or two ago, as my guest, Larry Posner, who I'm sure you both know about and maybe know, great uh trial or great cross-examiner, and he makes no uh secret that uh he was just looking to pass law school. He wasn't looking to uh be an A student. The two of you strike me as I don't want to call you eggheads, that's not the right word, right? But but very intellectual people. So uh, and and you're probably too modest to admit it. So, what can you tell uh our fellow criminal defense law colleagues who didn't graduate the top 10 in their class, 10% of the class maybe made uh were the ones who made the top 50% possible? Uh what what words of encouragement can you can you tell them uh who are just starting uh their their careers about or are just into their careers? They uh what what can you do to replace that if you're not an intellectual to still to still do a great job as a criminal defense lawyer?

SPEAKER_01 55:16

Where would you want to start? Well I didn't really thought about this in the past. Um I think that is the most rewarding and I would advise them to um to not have an inferiority complex if they represent pornographism people charged with obscenity, but to um have a superiority complex. That is, they are representing the constitution, they're not representing an individual alone, and um they're doing the Lord's work.

SPEAKER_04 56:21

Yeah.

SPEAKER_02 56:23

I think that's I think that's great advice. Um and uh, you know, I I will say it it's great advice coming from a Harvard lawyer, and let me take it back to the premise of your question and I'll try and answer it in a couple of ways. One is uh I um uh it's it's funny you would describe me as kind of an egghead. I come from a little town in Illinois. I went to a small state college in uh uh Illinois, Eastern Illinois University, uh went to graduate school at another state college, University of Massachusetts, and then went to law school at Catholic University of America, which while it is a fine school, I'm glad I went there, it is not, let's just say it's not Harvard. And so it is not the school people will will point to when they say, I want that Harvard lawyer. Uh and nonetheless, uh, you know, it has that education stood me in in good stead to develop into a lawyer. Uh, that uh um I'm I'm happy to say I've had some success. But more to the point, uh there's I've got a very good friend who is one of the top First Amendment lawyers in the country, Mark Rondaza, who you know.

SPEAKER_03 57:38

My friend.

SPEAKER_02 57:39

And he is uh an absolutely terrific lawyer. Uh and um, you know, he often will boast that he graduated dead last in his class at Georgetown University Law School. But what Mark brings to the table is a fierce intellect and a passion for uh defending all kinds of speech, including the kinds of speech most people would not want to, would not want to touch. And it is what Harvey just described as having that superiority complex because you're working for a righteous cause, because you are representing and defending the First Amendment and not just necessarily the individuals involved. And that's something in talking to juries that I think really does work. And again, my experience has been primarily in other areas and it's been in appellate work. It has not been as much as Harvey uh in dealing with juries. I've only had three jury trials my entire career. Haven't lost any of them, but uh uh one of them was the Staliano case, uh, where we actually in the end didn't have to address the jury. Um but uh in the other two cases, uh both were were civil cases where we had a jury in one case in Vermont and another in in Georgia. And it is a different style of argument, obviously, from a pallet argument. Uh and it's one where both the principles that you're involved with and common sense um are so important. And it's I I found it uh uh addressing a jury is fun in a different kind of way from the more intellectual exercise of uh of appellate work.

SPEAKER_03 59:34

Absolutely. I told you both we would go for an hour. We've gone a little over. So what I'm gonna do before I close, I'm gonna ask first, of course, thank both you deeply. And ask both of you if you'd like to say anything that has not already been said.

SPEAKER_01 59:53

You first, Harry. Well, there's a lot that's not been said, but it's not relevant to the subject. Um but I would I would say this. Um obscenity prosecutions now are less common than they were. And um much less common than they were because there's a sensible um prosecutors have come to the sensible conclusion that number one obscenity doesn't hurt anybody and number two it's getting harder and harder to have juries convince juries to convict. So I think that we have uh largely done our job, and every so often if there's a case uh we'll handle it. But I haven't had an obscenity prosecution in probably ten, fifteen years.

SPEAKER_05 1:00:57

Excellent. And Bob.

SPEAKER_02 1:01:02

Well, I would I would just say this. I I you know, along with with Harvey, I feel to have been incredibly privileged to have had the opportunity to work in defending the First Amendment. It's what I always wanted to do uh in once I decided to go to law school. And it's fortunate that it worked out because I didn't have a plan B. Uh so you know uh I honestly don't know what I'd be doing if it if it hadn't worked out. Uh it is one of the joys of working as a lawyer is if you can work on something that you believe in. And uh uh I have had that privilege. And I would encourage any young people, younger lawyers who are watching this, that you really can uh follow your passion. Yes, and uh have that work out, and that's true even if the law changes. You mentioned earlier that there had previously been uh a larger number of obscenity prosecutions, and that's definitely true through the 50s, 60s, and in into the 80s, uh, that was true, and and is less true today. But there's always going to be something. Our work is never going to be done uh because it'll be moving on to the next thing. I remember when I left the FCC in 1994, I was kind of lamenting the fact that I thought all the great First Amendment issues had already been litigated. And this is going to really be an opportunity for uh doing productive First Amendment work on a lot of the policy issues that I had been familiar with. And then the internet happened. And so uh there was all of that. And even though all of those early internet cases were successful uh in limiting what government could do, that ran for a 10-year period from 1997 through 2010. And now we're seeing all of that come back in various guises uh with uh laws across the country to regulate not just sexual speech online, but all kinds of speech. Governments are now trying to simply regulate the fact of human communication and trying to limit uh uh limit how people use social media. We also are seeing new frontiers in AI. Uh, and so the issues are just going to keep on coming. And if uh out there you are interested in have a passion for doing First Amendment work, there will be opportunities to do it.

SPEAKER_03 1:03:39

And uh, where do people find out more about FIRE, including the general work you're doing, job opportunities, and importantly how to donate?

SPEAKER_02 1:03:48

Uh come to our website at www.thefire.org, and there you'll have a range of things available to you, including how to donate, first of all, but also information about all of the work that we do, information about the issues that we are involved in and that uh we are following, and um any other things, uh job opportunities that uh you might want to look for on that site.

SPEAKER_01 1:04:15

I might add this. When Alan Charles Kors and I co-founded FIRE back in 1999, I predicted it was going to go out of business within 10, with the most 15 years. Because the idea of censorship um at that time we focused on college campuses was so absurd that it would um we would run out of cases. And at the 20th anniversary dinner, um, I confessed error.

SPEAKER_03 1:04:50

And Harvey, if someone wants to hire you or someone else at your law firm, how do they find you?

SPEAKER_01 1:04:57

Well, I have a website, Harveysilverglade.com. Uh, and um I'm the firm of Zolkine, Duncan and Bernstein in Boston. I'm of counsel to the firm now.

SPEAKER_03 1:05:11

Bob Corner Veer and Harvey Silverglade, two men that I think the world of. It's a good thing that I was sitting down when the two of you accepted my invitation because it may have broken my back doing backflips and joy. This has been John Katz at Beat the Prosecution. I am a criminal defense and DUI defense lawyer in Northern Fairfax, Virginia. Gentlemen, just hold on for a moment.

SPEAKER_00 1:05:34

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email and info at be theprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.