Tuesday, March 3, 2015

A00363 - Herald Fahringer, Free Speech Advocate

Herald Price Fahringer reading a copy of Screw magazine. His representation of its publisher, Al Goldstein, resulted in a mistrial and an overturned conviction. CreditCharles Gatewood
Herald Price Fahringer, an urbane New York lawyer who forswore most vices himself but who, on free speech grounds, gamely defended Larry Flynt and Al Goldstein when they were accused of distributing pornography, and represented other high-profile clients like Claus von Bülow and Jean S. Harris, died on Feb. 12 at his home in Manhattan. He was 87.
He had prostate cancer, his law partner, Erica T. Dubno, who confirmed the death, said.
Mr. Fahringer’s court victories often reverberated beyond the individual client. He persuaded the United States Supreme Court to overturn not only a convicted murderer’s life sentence, but also the federal law under which it was imposed; it had barred defendants from claiming that their lawyers were ineffective in unlawful detention cases.
He convinced New York State’s highest court that women have the same right as men to appear topless in public parks. His relentless challenges to new zoning constraints temporarily thwarted New York City’s crackdown on strip clubs and X-rated book and video stores in Times Square.
In 1961, just a few years out of law school, he persuaded New York’s top court, the Court of Appeals, to redefine hard-core pornography while successfully defending an adult-magazine store owner accused of obscenity. In its ruling, the court narrowed its definition to “what is sexually morbid, grossly perverse and bizarre without any artistic or scientific purpose or justification.”
Mr. Fahringer himself dressed the part of a patrician lawyer, sporting deep blue Paul Stuart ensembles and custom-made loafers, riveting all eyes as he grilled witnesses or argued before juries.
Dashing “in the Rossano Brazzi mold,” as one client described him, Mr. Fahringer “could have had a career in Hollywood as easily as one in the courtroom,” said a fellow lawyer, Richard Ben-Veniste.
And yet, as the civil liberties lawyer Norman Siegel once said, “Despite his flamboyance and courtroom showmanship,” he was “not just a suit” but someone who “cares passionately about the First Amendment.” Mr. Fahringer abjured alcohol, cigarettes and even candy, confessing that his own worst vice was watching “Seinfeld.”
“You don’t dare use a four-letter word around Herald,” said Al Goldstein, the otherwise profane publisher of Screw magazine.
Professionally, Mr. Fahringer had no trouble visiting the sex parlors and viewing the pornographic films that he agreed to defend, although after seeing one, “Cake Orgy,” he remarked, “You’ll never eat a marshmallow pie again as long as you live.”
He insisted that, as Larry Flynt, the publisher of Hustler magazine, had put it, if privileged people could go to galleries and the theater, then the newsstand was “the poor man’s library or art museum.”
Defending Mr. Flynt in one of his several conspicuous run-ins with the law on pornography charges, Mr. Fahringer rose to address the jury, buttoned his suit jacket and paused to project deep thought.
“Freedom is only meaningful if it includes all speech, no matter who is offended by it,” he said. “It would be a hazardous undertaking for anyone to start separating the permissible speech from the impermissible, using the standard of offensiveness.
“The freedom guaranteed in the First Amendment is indivisible. You can’t take it away from Larry Flynt and keep it for yourself. The real issue of this case is: Are we afraid to be free?”
Mr. Flynt was moved to tears. The jury and the judge were not. Mr. Flynt was convicted and, in 1976, sentenced to seven to 25 years’ imprisonment. (He served six days; the sentence was overturned on a technicality.)
Herald Price Fahringer was born in Lewisburg, Pa., on Nov. 6, 1927. His father, Herald Price Fahringer Jr. (who later dropped the “Jr.”), was an oil company engineer and professional boxer. His mother, the former Pauline Dyer, was a homemaker. He graduated from Pennsylvania State University and the University at Buffalo Law School and served in the Army in Korea.
Two avocations would serve him well as a lawyer. At his father’s urging, he began boxing when he was 12. And after college, he briefly joined a theater troupe organized by Arthur Treacher, the English actor. He worked his way through law school by appearing in television commercials.
His marriage to Barbara Falk ended in divorce. For several decades he lived with his companion, Margaret Noyes, who died in 2007. No immediate family members survive.
In 1974, Mr. Fahringer’s representation of Mr. Goldstein, who was facing 60 years in prison on federal pornography charges in Kansas, resulted in a mistrial and an overturned conviction.
In the 1990s, his nonstop litigation forced a delay in the Giuliani administration’s efforts to shutter sex shops in Times Square unless they had limited their sexually oriented merchandise to 40 percent. Pressure from developers bent on gentrification was more difficult for him to overcome.
Mr. Fahringer represented Mr. von Bülow, the socialite accused of trying to kill his wife, Sunny, by injecting her with insulin, in Mr. von Bülow’s first trial. In one exchange with Mr. Fahringer, Mrs. von Bülow’s doctor said that he had suspected she was being poisoned.
Mr. Fahringer asked, “If you thought that anyone, during 1979 or 1980, was trying to poison Mrs. von Bülow, wouldn’t you have done something?”
The doctor replied: “You’re on a very sensitive subject, counselor. If you’re going to blow the whistle, you better make darn sure you’re correct. I cannot go to one of my patients and say, ‘I suspect your mate may be doing something harmful to you’ unless I have absolute proof. I could have a suspicion and not act. We have libel laws in the country, counselor. I can’t afford to make an accusation that I can’t back up in court.”
Mr. Fahringer countered, “But you don’t operate in court, do you?”
Mr. von Bülow was convicted, but won on an appeal that was handled by others. (Alan Dershowitz, a consultant to the appellate defense team, said that Mr. von Bülow had branded Mr. Fahringer “a martinet, allowing no debate.”)
Mr. Fahringer soon turned to an appeal of the conviction of Jean Harris, who had been found guilty of murdering her former lover, Dr. Herman Tarnower, author of “The Complete Scarsdale Medical Diet,” in 1980. The case was lost, but her sentence was later commuted.
More recently he represented Lynne F. Stewart, a lawyer accused of providing material support to terrorists. Her 28-month term was extended to 10 years after she boasted that she could manage the original sentence “standing on her head.” In appealing the extended sentence, Mr. Fahringer argued that comments out of court cannot be punished by longer prison terms. He lost the argument, but Ms. Stewart was later released for health reasons.
Just two weeks before he died, Mr. Fahringer, appearing in federal court on behalf of a client, affirmed his fear of retiring.
“I have great trouble filling leisure time, so I eliminate it,” he said. “Working is easy. It’s living that’s hard.”

No comments:

Post a Comment