The Jerusalem Post - The Jerusalem Post Magazine
Rebel lawyer with a cause
Legendary human rights attorney Martin Garbus returns to court this month to fight a case that matters
‘The idea of punishing people for speech is too great a risk’
Martin Garbus will draw deeply from his substantial experience as he returns to court with a highly publicized and controversial case that opened this week. Born in Brooklyn, New York in 1934, Garbus has battled in some of the toughest and most high-profile constitutional, criminal, copyright and intellectual property law cases. His fierce veracity in the courtroom gained him the reputation as “one of the world’s finest trial lawyers” in media outlets like The Guardian.
Some of his notable clients include Nancy Regan, Nelson Mandela, Marilyn Monroe, Robert Redford, Philip Roth, Al Pacino, Igor Stravinsky, Daniel Ellsberg, Lenny Bruce, Don Imus, Cesar Chavez, Sean Connery, The Metropolitan
Opera, Random House, Penguin Books and The Sundance Film Festival, to name just a few.
The author of six books and a number of articles for The New York Times, The Los Angeles Times, The Nation and other publications, Garbus was honored in 2014 with the James Joyce Award from the University of Dublin for Excellence in Law and the Trinity College Award for defending First Amendment cases. His fight for freedom of speech is documented in the 2009 award winning HBO film, Shouting Fire: Stories from the Edge of Free Speech, directed by Garbus’ daughter, Liz Garbus.
A vehement defender of free speech, no matter how inflammatory or controversial, Garbus has become much more cautious in recent years due to the advent of the Internet.
“The whole idea of the American government was built based on the idea that good ideas will defeat bad ideas,” he states. “I no longer believe that to be true, because of how the unregulated Internet can and has spread disinformation and lies… it’s clear to me that bad ideas will overcome good ideas, and that means that one has to reconsider one’s First Amendment commitment.”
Garbus explains that he would not take on some of the
more provocative cases he has defended in the past for these reasons, especially with the possibility of free speech online inciting violence and putting a burden on police.
Garbus is against criminal libel laws, where someone could go to jail for making a false statement. He believes holding people accountable for what they say is a civil legal matter, rather than a criminal one.
“The idea of punishing people for speech is too great a risk. It spreads too far… I think it is terrible that you can destroy someone’s life with speech. You can destroy someone’s life with speech, maybe even worse than if you hit them over the head – and given today with the Internet, you say something in a small house somewhere, and that person is ruined in Australia and all over the world. There’s opinion and fact. So the question is, should it be punishable if it’s false? Clearly it should be punishable. I just don’t think it should be criminally punishable.”
IN 1994, Garbus put his professional career on the line to fight for justice in a libel case. He defended a 27-year-old Yale graduate and aspiring actress, “Jane Doe,” who had been raped in Brooklyn’s Prospect Park. Columnist Mike McAlary wrote an article for The New York Daily News brutally denouncing this woman’s claims by calling her a liar. Garbus sued McAlary and the newspaper for libel and described his client as being “raped twice” due to how egregiously she was treated in the press.
“She had come out as a lesbian,” Garbus explains, “so the fact that she’s a black lesbian and wanted to go into theater was enough to make her untrustworthy. They also prosecuted that guy for the rapes of two white women. They didn’t connect the rapist, who was black, to the woman, so they’re saying that the black woman lied, and two white women were telling the truth.”
Since then, two other women have come forward saying this same man raped them, and one reported that he attempted to rape her.
It was Garbus’s first libel case on behalf of a plaintiff, and he not only lost in court, his firm was also suspended from The Libel Resource Defense Center (LRDC) because insurance companies don’t look favorably on defense lawyers who side with a plaintiff. He lost most of his practice as a result of this.
In 2018, the New York Police Department (NYPD) issued a statement explaining they had made a mistake. Newly enhanced technology showed a match between the DNA of “Jane Doe” and the man who had raped her. Garbus remembers seeing his client fall apart in the courtroom. He still talks to her every month and describes her as still struggling. “You’re never ok… It’s a horrendous case showing deep-seated racism. It takes the police 24 years to apologize and we never sued for money. She didn’t want to go through it again, she had to put it behind her. She doesn’t want to start now, going through the whole thing again.”
GARBUS HAS won landmark cases before the United States Supreme Court, many of which have resulted in pivotal changes to the law. In the 1968 case King v. Smith, Garbus defended Mrs. Sylvester Smith, a young black widow from Alabama with four children whose government entitlements had been cut off because she was having an affair with a married man deemed to be a “substitute father,” even though he had no financial means and was not related to her children. The Supreme Court decided that, when it came to Aid for Dependent Children (ADC) eligibility, a person could be considered a “parent” only if he was legally defined as such, for example, being the biological father or being married to the child’s mother. Garbus estimates this ruling “affected probably about 10 million kids.” It prevented the state from
being able to discriminate against a person because of race, economic status and perceived moral standing.
Two years later, in 1970, Garbus filed another related poverty law case, Goldberg v. Kelly, while he was head of the Columbia Center on Social Welfare and Law. This case gave welfare recipients the right to a hearing before their government aid was discontinued, reasons for which could not be decided on arbitrarily or by hearsay. Garbus explains, “What the case basically said is, you had to bring the people in who made the allegations and let them be cross-examined… Justice William Brennan said it was the most important due process case of the 20th century.”
Garbus has helped draft the constitutions of Czechoslovakia and Hungary, he’s defended Sikh nationalists, represented the Rwandan government, jailed opponents of the Taiwanese regime, defended chief justices of the Indian Supreme Court while the country was in a state of emergency and fought for Chinese, Russian, Czechoslovakian, Indian, South African and Taiwanese dissidents. In 2012, he was honored with the William Fulbright Award for Global Leadership and International Human Rights.