Essay: Filial Piety And The First Amendment

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What then, since history has so far won out over filial piety, is the problem? In personal terms for Dr. Stevens, the case has been expensive in time and money; Miss Flick’s financial resources are infinitely greater than his. In broader terms, the historical profession believes that this case ought to have been thrown out at the very start. It was not a libel suit, seeking damages, but one in equity, seeking a relief that is unconstitutional on its very face—an injunction against a book. The state judge considered the case both constitutionally and on its “merits,” that is, on whether what Dr. Stevens wrote was accurate. He made it even more difficult by ruling out the testimony of professional historians who were waiting in court, and by excluding almost all “secondary” evidence (the writings of historians and other non-eyewitnesses). Only first-hand, contemporaneous evidence—either eyewitnesses or “disinterested” source materials—would do, went the ruling. No eyewitnesses, in fact, were introduced by either side in the trial, for the simple reason that they would have had to be about one hundred years old.

Deeply disturbed by the implications of this long-drawn-out suit, and by the preliminary rulings of the Pennsylvania court, a number of historians—representing the American Historical Association; the Organization of American Historians; our sponsors, the American Association for State and Local History and the Society of American Historians; and AMERICAN HERITAGE magazine—last year formed an ad hoc committee to fight this and any other infringement of the constitutional rights of historians to publish freely. The editor of this magazine serves as treasurer. Money was raised to assist Dr. Stevens with his legal expenses and to bring a countersuit in the federal courts to enjoin Miss Frick from what we believe is her legal harrassment of Dr. Stevens.

An eminent former federal judge, Simon H. Rifkind, was retained as counsel in the countersuit. The very pendency of the Pennsylvania action, he contended, served to inhibit the lights of Dr. Stevens to publish freely, without malicious intent—even if what he had written was wrong. Judge Weidner, as it happens, has by painstaking effort satisfied himself that it was not wrong, but this is beside the point. The historians and Judge Rifkind claimed that a success for Miss Frick—indeed, even a long, costly delay—would inhibit the right of scholars “to speak freely about the past based on scholarly research, and … would permit the descendants of long-dead historical figures to have serious books removed from circulation simply because something critical was said about their ancestors.”

As it turns out, the federal courts have been unwilling, on narrow grounds of jurisdiction, to relieve Dr. Stevens of his burden. The Supreme Court refused to hear the countersuit. However, since Miss Frick has appealed Judge Weidner’s decision and has announced her intention to fight the case all the way, if necessary, the Supreme Court justices may eventually find these distinguished adversaries in their laps again, many printing and legal bills later. If they hear the case and do not clearly affirm the historian's right to be free of the burden of defending such suits, the time may be ripe for the descendants of Aaron Burr, Benedict Arnold, perhaps even George III, to hie them to the courts to “correct” the record. After that, of course, there will be a golden era for the writers of “authorized” biography who will advise us, in extenso about the bravery of Burr, the kindness to animals of poor, misunderstood Arnold (about whom we are perhaps being actionable in this issue), and the love of King George for his children. And you can forget the First Amendment.

Oliver Jensen