The Elmer Gertz tradition

Douglass Cassel, a law professor at the University of Notre Dame who previously was on the faculties of Northwestern and DePaul Universities, received the Elmer Gertz Award on Nov. 19 from the ISBA Human Rights Section and Blind Service Association (see photo on page 1). His acceptance speech follows.

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In a real sense this annual award is not for any of the individuals who receive it, but is for two good causes.

It recognizes and celebrates the good work of the Blind Service Association, of which Elmer Gertz was president.

It also reminds us of all those lawyers in the Illinois State Bar Association who seek to carry on in the great tradition of Elmer Gertz and his predecessor, whom he knew and admired, Clarence Darrow.

What is that tradition? In the words of the Independent newspaper of London, published in the year 2000 when Elmer Gertz died at the age of 93, he was “one of the great liberal lawyers of his age.” He was “feisty, fearless and utterly committed.”

I do not doubt that he was all those things when the occasion demanded. But when I had the privilege of meeting him in his later years, he came across as gentle and unpretentious, a man with a twinkle in his eye, pleased to be approached by a younger admirer.

Many of you knew him well. I did not. I first focused on Elmer Gertz thanks to the public relations assistance he received from the John Birch Society.

In 1969, after he represented the family of a victim of a Chicago police shooting, the Birch Society publication, edited by the right-wing nut, Robert Welch, accused Elmer Gertz of being a “communist fronter” and a “Leninist.” It also implied that he had framed the cop.

Mr. Gertz sued for libel, and eventually won half a million dollars. Along the way he scored a landmark Supreme Court victory in 1974.

A majority of the court ruled that Elmer Gertz, as a private citizen who was not a public figure, could sue for libel without having to prove that Welch published these lies with actual malice.

As a civil libertarian, Elmer Gertz was apparently a bit uneasy with the potential risk his victory posed to a free press.

Yes, personal honor and reputation are entitled to protection from false accusations. But might honest news editors be deterred from fearless reporting on matters of public interest by the prospects of libel suits?

Any concerns he may have had were eased, however, by the court’s ruling that only actual damages, and not presumed or punitive damages, could be recovered, unless the plaintiff proved actual malice – deliberate lying or reckless disregard for the truth – on the part of the editor.

The list of Elmer Gertz’ causes fit his era. He fought to integrate the Chicago Bar Association. He fought for fair housing. He fought against police brutality. He defended unpopular clients and won their cases. He got Nathan Leopold released from prison. He got Jack Ruby a new trial.

He also opposed the death penalty. On behalf of the Illinois ACLU, he filed an amicus brief in a 1968 case, Witherspoon v. Illinois, in which the U.S. Supreme Court, overruling the Illinois Supreme Court, decided that prosecutors in capital cases may not exclude from juries every juror who expresses qualms about the death penalty.

By now it should be clear why this award is named for Elmer Gertz, and not for those lesser lawyers who attempt to follow in his footsteps. I, for one, make only two claims to be his equal.

First, I, too, am not a Leninist. Second – and Robert Welch actually got this fact right – Elmer Gertz was indeed a former officer of the National Lawyers Guild. I plead guilty to the same charge, and salute all the Guild members in Illinois.

Elmer Gertz is, then, a hard act to follow. Even so, I hope that fact will not discourage young lawyers from attempting to follow his example, for fear that they can never match it.

Not all of us will go to the Supreme Court. Not all of will receive, as Elmer Gertz did, frequent calls from a president of the United States (Harry Truman).

But all of us can aspire, day in and day out, in all the little cases for which awards may never be given, and headlines never written, to care about our clients as human beings and to work hard for them, and to do so with dignity and with unfailing courtesy to the other side.

In the end, the most important accolade for a lawyer may not be the high praise published by the Independent of London, but instead what another great Chicagoan, Studs Terkel, had to say about Elmer Gertz on his death: “I suppose if you were looking for a lawyer, he wouldn’t be a bad guy to have around at all.”

Whether as lawyers or as advocates for the visually impaired, let us all conduct ourselves so that when Studs looks down from Heaven, interrupting one of his interviews with the saints, he can say that much about us mere mortals.

Again, thank you for this award and thank you, Elmer Gertz, for inspiring all of us.