Mike Bamberger, Free Speech Defender

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“Free Speech” is a monthly column by Chris Finan, director of the American Booksellers for Free Expression (ABFE), that shares his personal thoughts and opinions on a broad range of free expression issues; the views expressed do not necessarily reflect those of the American Booksellers Association. Finan welcomes comments and suggestions at [email protected].

Michael Bamberger
Michael Bamberger

In the fall of 1982, I was looking for a job in New York City.

I was a graduate student at the time and grateful for the $5 per hour that I made working in the back office of a bank. But I was scouring the want ads in the New York Times and hoping for something more interesting.

One day I saw an opening for a part-time coordinator of a “First Amendment trade association.” I had never heard of such a thing, but I liked the sound of it. A few days later, I was sitting in the Park Avenue office of a lawyer, Michael A. Bamberger.

Next week, during the Celebration of Bookselling at BookExpo, the American Booksellers Association will present Mike with its first Joyce Meskis Free Speech Award, which recognizes distinguished service in defense of the First Amendment rights of booksellers and their customers.

During my job interview, Mike explained that he was the general counsel of Media Coalition, an association of publishing trade groups, including the American Booksellers Association. The coalition was formed in response to a U.S. Supreme Court decision in 1973 that threatened to increase the censorship of sexual content in books, magazines, and other media.

My job would be to monitor legislation at the state level that might lead to the suppression of works with serious literary, artistic, political, and scientific value. When a bad bill was introduced, we would send a letter to the legislature warning of its chilling effect. If the bill became law, we would sue.

It sounded great to me. I also liked Mike immediately. A tall man, he can be a little shy. He didn’t exactly blush, but he hesitated a moment before asking me whether I would have a problem defending sexually explicit material. By that time in the interview, I was feeling comfortable enough to try a joke. “I kind of like it,” I said. When Mike laughed, I knew I wasn’t going back to the bank.

Later I learned how Mike got interested in civil liberties. He is Jewish, and he and his family arrived in the United States as refugees from Germany after Hitler came to power. His father, who had been a university professor, found a new career in publishing.

Mike grew up during a period when censorship was still strong in the United States. After World War II, the National Organization for Decent Literature policed the racks of retailers who sold paperbacks, and political pressure forced publishers to adopt a censorship code that gutted comic books of anything that might interest older adolescents and adults. The federal government also exercised extensive censorship authority through customs officers whose job it was to stop the importation of “obscene” books, including Lady Chatterley’s Lover and Tropic of Cancer.

It is not surprising that as a senior at Harvard College Mike chose to write his thesis on censorship by customs officials. The next year he entered Harvard Law School and later became a specialist in corporate law. But his interest in free speech remained strong. He jumped at the chance to become general counsel of Media Coalition in 1977.

Mike has won many important victories for booksellers over the last four decades. One of his most significant cases was a 1985 challenge to an Indianapolis ordinance that would have forced bookstores to pay damages to victims of sexual assaults who were allegedly harmed by the sale of books or magazines with sexual content.

The ordinance had been drafted by two feminists, Catharine MacKinnon, a law professor, and Andrea Dworkin, a writer, who blamed sexually explicit material for the slow progress of the fight for women’s rights. Their ordinance targeted material that included “the sexually explicit subordination of women, graphically depicted, whether in pictures or words.”

The lawsuit that Mike filed on behalf of ABA, the Association of American Publishers, and others drew national attention. He argued that the definition of harmful material was inherently vague and could be applied to Witches of Eastwick, Delta of Venus, James Bond novels, and many books by Sidney Sheldon, Judith Krantz, and Harold Robbins. ACLU filed a supporting brief that added to the list of endangered works, including classics like Tom Jones and The Arabian Nights, and books by feminists Kate Millet and Susan Brownmiller.

In her decision, U.S. District Court judge Sarah Evans Barker didn’t disagree that sexually explicit material might be harmful, but she rejected the idea that it wasn’t speech. She also warned against using censorship to achieve reform. “To deny free speech in order to engineer social change ... erodes the freedoms of all and, as such, threatens tyranny and injustice to the rule of law,” Barker wrote. The U.S. Supreme Court affirmed her ruling.

Censorship pressure continued to grow, however. The American Family Association and other anti-pornography groups convinced Attorney General Edwin Meese to form a commission on pornography, which encouraged attacks on material that is protected by the First Amendment.

Media Coalition opposed the federal crackdown, forcing the Meese Commission to withdraw a letter that it had sent to two dozen national corporations, including three national magazine distributors, asking them to reply to the charge that they were distributors of pornography.

It also pushed back against a wave of state legislation. Mike successfully challenged dozens of statutes that banned the display of books and magazines that might be might be “harmful to minors.” These laws would have prevented adults from exercising their First Amendment right to purchase this material, both in stores and on store websites.

More recently, he represented five Arizona booksellers who overturned a state law that purportedly banned the sale of “revenge porn,” which would have made it illegal to sell any book with a nude image unless the person depicted had granted permission, including books with historical images. The law was struck down as unconstitutional.

Last fall, Mike negotiated with town officials in Saguerties, New York, who were trying to force Brian Donoghue, owner of the Inquiring Minds Bookstore, to remove a Nazi banner from a window display that drew parallels between the rise of Hitler and the advent of Donald Trump. The town agreed not to pursue its complaint.

Over four decades, Mike has compiled an astounding record of success. He has carefully watched for threats to First Amendment rights in Congress and the state legislatures, helping modify or defeat thousands of problematic bills.

He has kept his eye on the courts, filing amicus briefs in the Supreme Court and the appeals courts that have had an important influence on how free speech rights are interpreted today.

And when the threat has been greatest, when a bad bill has become law and threatens booksellers with a prison sentence or heavy fine, he has been a powerful advocate. He has filed more than two dozen cases on behalf of more than 40 bookstores — and won almost all of them.

Mike Bamberger has been a bookseller’s best friend.