Press: Louisiana Lawyer

From Sandy Hook to Seal Rocks last week, U. S. publishers hailed with delight the U. S. Supreme Court’s unanimous decision outlawing the punitive State tax on gross advertising revenue by which the late Huey Long hoped to make all Louisiana newspapers with a weekly circulation above 20,000 toe his political line. In the office of the New Orleans Item-Tribune the tone of the jubilation was almost personal, for the Item-Tribune pridefull) credited a major share of the victory to the patience and acumen of its own lawyer, 38-year-old Eberhard P. Deutsch. Seldom is a newspaper’s lawyer a hero in its editorial rooms. Even more seldom does a local barrister achieve note among the platoon of silk-hatted, wing-collared striped-trousered counsel which is attracted to an important constitutional case. Lawyer Deutsch, son of a Cincinnati pedagog, got a job in the circulation department of the Item-Tribune, went to Tulane University’s law school at night, was admitted to the bar in 1925, has been the paper’s counsel ever since. When Dictator Long cracked down on the “lying newspapers” of his State, which were almost solidly against him, seven law firms were mustered by the nine publishers most affected to seek a permanent injunction restraining the State Public Accounts Supervisor from levying the tax. At the preliminary conferences to decide the legal strategy of combating the Louisiana tax, majority sentiment favored a fight along the line that the tax was discriminatory in that it applied to no “general class” of business. Up spoke the Item-Tribune’s Deutsch in behalf of a broad-gauge contest for freedom of the press as guaranteed under the First Amendment. Lawyer Deutsch was permitted to take several months off, browse along his own path in Northern and European libraries. Setting up the thesis that the power to tax was the power to destroy, the Deutsch brief quoted the late great Justice Holmes’s observation that “a page of history was worth a volume of logic,” traced the sorry history of newspaper taxation. He began in 1644 with John Milton’s Areopagitica—A Speech for the Liberty of Unlicensed Printing, caught Queen Anne levying the first taxes against newspapers, discovered that the American Revolution “really began in 1765” when the first batch of newspaper duty stamps was shipped out to the Colonies from England, deduced that the Louisiana tax law was not only unconstitutional but historically unsound. Last autumn three U. S. District Court judges sitting at Baton Rouge found for the publishers on the discrimination plea presented by Lawyer Esmond Phelps, a New Orleans Times-Picayune director, passed over Lawyer Deutsch’s libertarian thesis. When Public Account Supervisor Alice Lee Grosjean took the case to Washington, however, Lawyer Elisha Hanson was assigned to urge the freedom-of-the-press angle. His brief substantially followed Lawyer Deutsch’s original. So, to everyone’s surprise, did Associate Justice George Sutherland’s opinion, which threw the Louisiana tax out not on the basis of discrimination but on the basis of the First Amendment. In a decision which surpassed even the famed Minnesota Gag Law case for liberality, Mr. Justice Sutherland also traced the history of newspaper taxation from Milton, through Queen Anne to the Revolution. Then he established a resounding precedent for freedom of the press in the U. S. by declaring: “The newspapers, magazines and other journals of the country . . . have shed and continue to shed more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of … a free press cannot be regarded otherwise than with grave concern.”