Emerson, Thomas Irwin (1907–1991)

Thomas Irwin Emerson was a noted legal scholar and civil rights and civil liberties advocate. Born in Passaic, New Jersey, he graduated Phi Beta Kappa from Yale College (1928), attended Yale Law School and was editor-in-chief of the Yale Law Journal. While at the law school he studied under, among others, Robert Maynard Hutchins, and was a friend and classmate of William O. Douglas. He received his law degree in 1931.

A few years after graduating from law school, Emerson worked at the National Recovery Administration, on the National Labor Relations Board, and in the Attorney General’s Office. During World War II, he then served as general counsel for the Office of Economic Stabilization and for the Office of War Mobilization and Reconversion. In 1948 he ran for governor of Connecticut as the People’s Party candidate, and in 1950–1951 was the president of the National Lawyers Guild.

Emerson served on the Yale law faculty from 1946 to 1976; in 1955 he was named the Lines Professor of Law. He authored or edited four books and numerous articles, including an autobiographical work entitled, Young Lawyer for the New Deal: An Insider’s Memoir of the Roosevelt Years (1991).

Civil Rights

As a young lawyer Emerson was employed at Engelhard, Pollak, Pitcher and Stern. Working with Walter Pollak—one of the lead lawyers who argued Gitlow v. New York (1925) and Whitney v. California (1927)— Emerson was on the legal team that successfully appealed the convictions of the Scottsboro Boys. In that case eight black teenagers were sentenced to death for the alleged rapes of two white women. Emerson and his colleagues challenged the convictions on Fourteenth Amendment grounds, arguing that due process required the appointment of counsel by state courts for indigent defendants in capital cases. The Court in Powell v. Alabama (1932) agreed by a seven-to-two margin, thereby launching a new era in civil rights law.

Early in January of 1950, Emerson filed an important amicus brief—joined by Dean Erwin Griswold of Harvard and Professor John P. Frank of Yale, among others—in Sweatt v. Painter (1950) on behalf of 188 law professors. The brief defended the claim of Heman Marion Sweatt that he had been denied equal protection under the Fourteenth Amendment when the University of Texas Law School refused to admit him on the basis of race; instead it referred him to a newly created state law school for blacks. The brief also challenged the viability of Plessy v. Ferguson (1896) and argued that inequality was inherent in segregation. The Court, in a nine-to-zero decision, held that the separate systems of education were not equal and sustained Sweatt’s claim, thus mandating his admission to the University of Texas Law School. Both the brief and the holding helped to set the stage for the Court’s ruling in Brown v. Board of Education (1954).

Emerson co-edited (initially with David Haber and then with Haber and Norman Dorsen, et al.) Political and Civil Rights in the United States (1967–1979), the first casebook of its kind and a voluminous treatment of the subject that included the reproduction of many original documents.

Freedom of Expression

Throughout his life Thomas Emerson was a staunch defender of freedom of expression. As early as 1948 he co-authored (with David Helfeld) a scholarly 143-page article entitled ‘‘Loyalty Among Government Employees,’’ in which he argued that government loyalty programs were repressive and violated the First Amendment. Two years later Emerson openly condemned the University of California regents for firing 157 university employees suspected of being communists or communist sympathizers. During a ‘‘Bill of Rights Conference’’ in New York (July 17, 1949) Emerson, an active member of the American Civil Liberties Union’s (ACLU) Free Speech Committee, strongly defended a resolution calling for restoring civil liberties for members of the Socialist Workers Party who had been caught up in government loyalty sweeps. Morris Ernst, a noted ACLU lawyer, and others took a different view and defeated the resolution.

In 1957, Professor Emerson successfully represented Paul Sweezy, a university teacher, in the SupremeCourt case involving legislative inquiries concerning his ties to the Progressive Party and about a lecture he gave on socialism. The petitioner, who declined to respond to such inquiries, prevailed on due process grounds (Sweezy v. New Hampshire [1957]).

Emerson’s most enduring contribution to First Amendment law was his widely respected book, The System of Freedom of Expression (1970), which grew out of an earlier work entitled Toward a General Theory of the First Amendment (1966), which in part was based on a 1963 article published in the Yale Law Journal. Tracking in format the presentation offered by Zechariah Chafee in Free Speech in the United States (1941), Emerson’s 750-page tome offered a comprehensive survey and analysis of nineteen broadly defined areas of free speech law.

In The System of Freedom of Expression, Emerson argued that the ‘‘system of freedom of expression in a democratic society rests upon four main premises:’’ (1) ‘‘freedom of expression is essential as a means of assuring individual self-fulfillment,’’ (2) ‘‘freedom of expression is an essential process for advancing knowledge and discovering truth,’’ (3) ‘‘freedom of expression is essential for participation in decision making by all members of society,’’ and (4) ‘‘freedom of expression is a method of achieving a more adaptable and hence a more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.’’ Hence, for Emerson, First Amendment freedom was ‘‘essential to all other freedoms.’’ It was, he stressed, ‘‘a good in itself, or at least an essential element in a good society.’’

While not entirely subscribing to either the Black or Douglas ‘‘absolutist’’ approaches to the First Amendment, Emerson was highly critical of the Supreme Court’s ad hoc balancing and clear-and-presentdanger tests. His presumptively protective theory of expression was based, in meaningful part, on the ‘‘distinction between ‘expression’ and ‘action’ and the difference in degree of social control allowed over each.’’ Thus, the more expression was actually ‘‘linked to action’’ or the more it had the ‘‘same immediate impact as action,’’ the more it became a candidate for government regulation. Absent such direct consequences linked to harmful actions, Emerson’s theory would protect expression.

One of his later writings on the First Amendment was his 1983 article ‘‘Freedom of the Press under the Burger Court.’’ He wrote, ‘‘The Burger Court has taken a ‘crabbed view’ of the First Amendment and has exhibited a ‘disturbing insensitivity’ to the role of the press. In doing so, it has significantly reduced the protections afforded the press by the First Amendment.’’ The Burger Court’s press rulings—reflected in cases such as Gertz v. Robert Welch, Inc. (1974, libel) and Branzburg v. Hayes (1972, reporter’s privilege)— he concluded, ‘‘bode ill for the future.’’

Right to Privacy

Emerson’s greatest achievement as a lawyer was his victory in Griswold v. Connecticut (1965), a case he argued in the Supreme Court. Emerson represented the petitioners, Estelle Griswold and Dr. Thomas Buxton, who had been prosecuted under a state law that banned the use and distribution of contraceptives, even to married couples. The Court ruled seven-to-two in favor of the petitioners. In an opinion by Justice Douglas, it was declared that the Connecticut statute violated the right of marital privacy deemed within the penumbra of specific guarantees of the Bill of Rights and hence protected under the Fourteenth Amendment. The ruling thus foreshadowed the holding in Roe v. Wade (1973), the landmark abortion case.

Women and Equality

Eleven months before the equal rights amendment’s (ERA) final approval by Congress, Emerson coauthored ‘‘The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women.’’ The 113-page article (in support of the ERA) offered an authoritative analysis of the probable impact of the proposed amendment. Several years later, in November 1977, Emerson testified before a subcommittee of the House Judiciary Committee concerning the ERA. Taking issue with his Yale Law School colleague Charles L. Black, Emerson argued that Congress could constitutionally extend the ratification period of the proposed amendment by a simple majority vote rather than by a two-thirds vote of each house. Agreeing with Emerson, in 1978 Congress by a 233-to-189 vote extended the ratification period by five years, though to no avail.

During that period, Emerson also wrote the foreword to Sexual Harassment of Working Women (1979) by Catharine A. MacKinnon, a friend and former student. ‘‘Sexual harassment,’’ he began, ‘‘has been one of the most pervasive but carefully ignored features of our national life.’’ Emerson’s concern about this problem reflected his parallel concerns about ‘‘real’’ equality:

MacKinnon undertakes to give a new dimension to the Equal Protection Clause . . . . [She] argues that the focus in equal protection law should not be on the ‘differences,’ or whether the differences are ‘arbitrary’ rather than ‘rational,’ but upon the basic issue of inequality. In other words, the courts should consider whether the treatment by the law results in systematic ‘disadvantagement’ because of group status . . . . Such an approach deserves serious consideration.

That consideration, however, did not prevent him from taking exception to Professor MacKinnon’s claim that there should be civil law remedies for women who suffered harm from the alleged effects of pornography. Writing in the Yale Law and Policy Review (1984), Emerson declared: ‘‘My claim arises not from Professor MacKinnon’s statement of the problem but from her proposals for a solution.’’ While he granted that ‘‘pornography plays a major part in establishing and maintaining male supremacy,’’ he also believed that if MacKinnon’s proposals were tested against First Amendment law, ‘‘there is no way her solution of the pornography problem can be sustained.’’ He concluded on an emphatic note: ‘‘Any attempt to deal with the problem of pornography through government suppression would involve a dangerous evisceration of the First Amendment.’’

RONALD K. L. COLLINS

References and Further Reading

• Chafee, Zechariah Jr. Free Speech in the United States. Cambridge, MA: Harvard University Press, 1941.
• Dorsen, Norman, Thomas Irwin Emerson, Yale Law Journal 85 (1976): 463.
• Emerson, Thomas Irwin., Loyalty Among Government Employees, Yale Law Journal 58 (1948): 1.
• ———. Toward a General Theory of the First Amendment. New York: Random House, 1966.
• ———. The System of Freedom of Expression. New York: Random House, 1970.
• ———. ‘‘Freedom of the Press under the Burger Court.’’ In The Burger Court, edited by Vince Blasi. New Haven, CT: Yale University Press, 1983.
• ———, Pornography and the First Amendment: A Reply to Professor MacKinnon, Yale Law and Policy Review 3 (1984): 130–143.
• ———. Young Lawyer for the New Deal: An Insider’s Memoir of the Roosevelt Years. Savage, MD: Rowman and Littlefield, 1991.
• ———., The Writings of Thomas Irwin Emerson, Yale Law Journal 101 (1991): 327.
• Emerson, Thomas I., Barbara Brown, Gail Frank, and Ann Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, Yale Law Journal 80 (1971): 871.
• Emerson, Thomas I., David Haber, Norman Dorsen, eds. Political and Civil Rights in the United States. 1st–4th eds. 2 vols. Boston: Little, Brown, 1967–1979.
• MacKinnon, Catharine A, with Thomas I. Emerson. Sexual Harassment of Working Women. New Haven, CT: Yale University Press, 1979.
• Yale Law Library. Thomas Irwin Emerson: 1907–1991. Memorial Booklet. New Haven, CT: Yale Law Library, 1991.

Cases and Statutes Cited

• Branzburg v. Hayes, 408 U.S. 665 (1972)
• Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954)
• Gertz v. Robert Welch Inc., 418 U.S. 323 (1974)
• Gitlow v. New York, 268 U.S. 652 (1925)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Plessy v. Ferguson, 163 U.S. 537 (1896)
• Powell v. Alabama, 287 U.S. 45 (1932)
• Roe v. Wade, 410 U.S. 113 (1973)
• Sweatt v. Painter, 339 U.S. 629 (1950)
• Sweezy v. New Hampshire, 354 U.S. 234 (1957)
• Whitney v. California, 274 U.S. 357 (1927)