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John Banzhaf's Public Interest
The Controversies and High-Profile Legal Crusades of a Washington Maverick
[FINAL Edition]
The Washington Post (pre-1997 Fulltext) - Washington, D.C.
Author: Phil McCombs
Date: Jul 23, 1990
Start Page: c.01
Section: STYLE
Text Word Count: 2647
 Full Text (2647 words)
Copyright The Washington Post Company Jul 23, 1990

Q: What do you call 2,000 lawyers chained together at the bottom of the sea?

A: A good beginning.

-"Banzhaf's Bull{etin}" in the Advocate, student publication of George Washington University's National Law Center

When John F. Banzhaf III, the guerrilla public interest lawyer who helped bring women to the Cosmos Club and nonsmoking airplanes to the skies, reached over with a glass of water and doused conservative thinker Ernest van den Haag's cigar on "Nightwatch" a couple of years ago, van den Haag responded by hurling an ashtray at him.

"He suddenly lit up this great big cigar," says Banzhaf, who believed it was illegal-that the drifting smoke constituted "a battery," making his own action "self-defense."

"It was quite legal," retorts van den Haag, explaining that because he lit the cigar "at the instigation of the producer," it was okay under the D.C. fire code. Banzhaf, he says, "threw a glass of water, which was, legally speaking, an assault."

The show's host, Charlie Rose, doesn't recall any instigation, adding that he was "surprised and amazed" by the incident at the time. He does recall getting tangled in his mike cord as he moved in to break up the fight.

With a look of childlike innocence, Banzhaf shrugs.

"I could have grabbed him and wrestled the cigar from his hand," he says mildly, "but that's much more of an intrusion, it seems to me, than pouring water."

Banzhaf is a classic Angry Man, one of those peculiar one-person Washington institutions-Charlie Peters, Izzy Stone and Bill Regardie come to mind-who fight the good fight as they see it and, in doing so, manage to change the world a bit while cheerfully enraging a goodly number of their fellow citizens.

The 50-year-old professor of "legal activism" at George Washington University's National Law Center rose to fame two decades ago crusading against the tobacco industry with the same panache that characterized Ralph Nader's assault on auto manufacturers. "The first restrictions on smoking in airplanes in the '70s, that was John's doing," says Richard A. Daynard, a Northeastern University law professor and co-chairman of the Tobacco Products Liability Project.

He's still at it. This month, as part of a series of suits against the Occupational Safety and Health Administration, he obtained a written promise that OSHA will decide by Nov. 30 whether to take regulatory action to ban smoking in the American workplace. It may seem like a small nudge against a giant bureaucracy, but Banzhaf says, "If they don't, then we can sue them again."

Banzhaf also has taken on other causes. Recently he and the American Civil Liberties Union filed amicus motions in the Marion Barry trial designed to prevent prosecutors-in this case and others-from hounding politicians out of office by bringing charges against them. (Before the judge could rule, Barry announced he wouldn't run again.) Earlier this year, Banzhaf instigated a suit against Rep. Barney Frank (D-Mass.) for using his apartment "for the purpose of lewdness, assignation and prostitution."

"Plain anti-gay," says Frank angrily.

"I'm not homophobic," says Banzhaf. Rather, his concern is with "wrongdoing by public officials where it appears they will get away with it."

Over the years, he says, he's picked targets from across the political spectrum-seeking special prosecutors for Richard Nixon and Edwin Meese, for example, and then later urging an investigation of Geraldine Ferraro.

In the Frank case, he accused U.S. Attorney Jay Stephens of failing to go after the congressman. Banzhaf joined forces with the Conservative Caucus, dug up an obscure statute allowing suits to be brought on behalf of "the United States of America" and called a press conference to announce that "the United States will take legal action today against Congressman Barney Frank."

Technically correct, maybe, but some reporters were miffed to learn it was just Banzhaf.

As is often the case with mavericks, people tend to love him or hate him, and some speculate that he's gone over the deep end, engaging in grandstanding.

Jack Friedenthal, dean of the National Law Center, says Banzhaf has done a lot of good, but "a number of people have been deeply concerned about his involvement in a number of issues. The U.S. attorney really didn't need to be told what to do by John." (Stephens is still studying Thursday's report of the House ethics committee, which recommended a reprimand for Frank, but has yet to take action.)

Even the student body at the National Law Center-once Banzhaf's biggest source of support-seems to have cooled toward him somewhat. The April Fool satire edition of the Advocate, the center's newspaper, reported jokingly that Banzhaf is suffering from a medical problem called " `topping off,' a condition that results when one fails to go to the bathroom for more than a decade."

"Here is a man," one doctor reportedly said, "who is really full of it."

Whether he's over the deep end or merely settled into life's long haul of little victories and defeats, Banzhaf remains unique among public interest lawyers. For one thing, there's no other law course in the country quite like the one he teaches-in which each student is required to bring a lawsuit or other complaint in an effort to right some perceived wrong.

"Banzhaf's Bandits," as the students have been called, have brought actions resulting in safety standards for school buses, clearer warnings on birth control pills, smoke detectors in airplane lavatories, new police procedures for domestic-violence cases, higher standards for auto bumpers and more detailed food labels.

In a successful effort last year, the students formed a Coalition Against Discriminatory Dry Cleaning and brought an action under the D.C. Human Rights Act that resulted in equal pricing for cleaning women's and men's shirts.

Banzhaf first burst onto the national scene in 1967, when-and he was only 26-his simple, pointed letter to the Federal Communications Commission resulted in a ruling under the "Fairness Doctrine" that required hundreds of millions of dollars' worth of free television and radio time for anti-cigarette announcements.

Soon after, Banzhaf founded a tax-exempt lobbying organization, Action on Smoking and Health (ASH), of which he is still executive director. According to Daynard, Banzhaf "was fighting single-handedly in the '60s when he got the counter-advertising. ... He was pretty much alone, {and} then the rest of the anti-smoking movement came on line during the last decade. Now there are a number of organizations working effectively in this area, of which his is one, but only one."

As a professor, Banzhaf teaches his law students how to change the system through a series of small, carefully targeted actions. He still counsels them to think small.

"The ideal situation," he says, "is where you can just pull out one brick and give a little bit of a kick and the whole wall comes tumbling down. ... Injustice tees me off. I'm at least as teed off by the big things as the little ones, but I have to recognize that, given my own limitations, I may have to take on the medium-sized injustices or the moderately small ones."

Some feel he's sunk to the trivial.

"When you start suing Barney Frank and trying to gin up litigation against Manuel Noriega," says Deborah M. Levy, national legal editor for American Lawyer Media, "it just strikes me as not so useful, {although} it's great headline stuff." ACLU Legal Director Arthur B. Spitzer says a Banzhaf-inspired action concerning separate restaurant dress codes for men and women "was fringy {and} tended to fuzz things up for other important discrimination cases." (Yet it was Spitzer who joined Banzhaf in a press conference to announce their parallel amicus briefs in the Barry trial.)

None of this bothers Banzhaf.

He's proud of his discovery of a centuries-old anti-piracy statute that may allow Panamanians to seek redress against deposed dictator Noriega, and explained it in a memo for inclusion in a university publication: "His research on a possible tort suit against Manuel Noriega," he wrote of himself, "led to a major article in the Wall Street Journal, the publication of his letter to the editor in the National Law Journal, and even to a request for more information from the producers of the `L.A. Law' TV show."

"A lot of people say I'm media-crazy," he says. "What they don't realize is that publicity is a powerful weapon in the arsenal of the public interest lawyer. With things that I'm working on, I'll do anything in the world to generate publicity. Publicity was the major factor that got the Cosmos Club to change its policy, and the major factor with the dry cleaners."

Washington lawyer William Dobrovir, who has done a great deal of public interest work, recalls watching Banzhaf one day before the federal commission examining smoking on interstate buses: "John showed up in a very elegant jumpsuit. It was summer. He stood to give his testimony, and in the middle of it he picks up this great big firecracker and lights it, and it goes off, and fills the room with smoke. And he says, `This is what it's like when everybody's smoking!' The room was full of smoke and the board was going bananas, threatening to throw him out. He was always willing to get himself into trouble, which is why he was so effective, and so disliked by the establishment."

Dobrovir himself, who handled the courtroom work in the 1982 Banzhaf-inspired case that forced Spiro Agnew to pay $248,735 to the people of Maryland in restitution for alleged construction kickbacks he had received while governor, thinks Banzhaf is a "great" man, a "pioneer" who will "go down in history."

Nader agrees.

"Banzhaf is bold, an innovator, persistent," he says. "That's why he upsets people." The dry cleaning suit doesn't seem trivial to Nader because "justice is made up of little and big advances, mostly little. He's giving life to the law, he's going after problems that affect everyday people. ... As Oliver Wendell Holmes said, `The life of the law is experience.' You better check that quote. It may have been Cardozo."

Banzhaf's favorite legal quote is, in fact, one from the late Supreme Court justice Benjamin N. Cardozo, about a legal principle "taken down from the wall where it was rusting {and} capable of furnishing a weapon for the fight and of hewing a path to justice."

"I'm just a great believer in the principle of law," says Banzhaf, "and I think it should be enforced impartially."

He admits that he lacks Nader's "strong personal zeal and commitment to the causes that he takes on. For him, it becomes a point of self-sacrifice. He works selflessly, living in a constant state of agitation against the evils of the world. I don't see myself that way. I'm reasonably happy. I don't have a flaming personal passion against the airlines for permitting smoking, or Barney Frank."

Banzhaf lives with his wife and 8-year-old son in the Arlington suburbs, has a "nice little dog," an old Volvo and likes to go on camping vacations.

The son of a fireman and a schoolteacher, he grew up in the Bronx watching his mother smoke and, eventually, lose part of a lung. Interested in science, he went to MIT and then-realizing that he could do well as a patent attorney-on to Columbia Law School. At 26, he was working as a patent attorney in New York when the FCC came down with its stunning ruling based on his letter.

Suddenly he became "interested in and excited at battling big people. I was seeing results because I did something. I used, in a sense, a trick, a legal loophole, an unusual application of law."

Deciding he wasn't interested in big-time lawyering, he joined the George Washington faculty and received tenure in 1971 after hundreds of student backers protested an initial faculty vote to deny him that status. He adopted the motto "Sue the bastards."

"I prefer to restrict my legal activity to suing the bastards," he says. "That is, people I think are bad and are doing wrong. ... I feel very strongly about right and wrong. I feel very strongly that I should do something when I see something wrong occurring."

He doesn't have any "burning anger," he says, "of the kind that Nader is often described as having, or Mitch Snyder, or people who have personal experiences of horrible segregation. ... I would get teed off at something, and then by using some smart idea, some tactic, I would do something about it."

Some liberals are disturbed at the apparent conservative slant of some of Banzhaf's positions-his support of the death penalty and Bernhard Goetz, opposition to student sit-ins no matter what the cause, his assertion that mandatory drug tests can be made to "pass constitutional muster."

"He's more interested in getting his picture in the paper than in taking consistent positions, or necessarily the right position," says one student leader.

"I've done things which many people regard as liberal, and things which many regard as conservative," says Banzhaf. "I don't think I'm doctrinaire on anything. What I like to do is look at each issue, and then, based upon the law, based upon various other factors, I decide which position I want to take."

What factors? Morality? Religion?

Banzhaf balks: "I think this is going a little bit beyond the area where I feel I want to be commenting on. ... There is a line, when people start asking what is your religion, how often do you go to church, do you beat your wife, have you been divorced, have you ever stolen anything from a store, or what are your sexual practices. ... They've all been asked, believe me."

In the end, he says, his values are simple ones-"pretty common to most religions."

Whatever his motivations, he seems to be having fun.

He's always despised colleagues who spend time on law review articles, and after Mayer G. Freed of Northwestern University's School of Law wrote in the National Law Journal that "ideas are advanced" through such articles, Banzhaf shot back in a letter that people who write them regularly are "legal eunuchs, unwilling to use ... their legal abilities in the real world."

Not satisfied with that, he put a headline-"MYOPIC LEGAL EUNUCHS?"-on size-enhanced copies of his letter and plastered them around the school.

"It was sort of harsh," says Freed dryly. "The idea of measuring the quality of a faculty by its scholarly productivity is not generally thought of as a controversial idea."

Banzhaf has irritated people in other ways too.

His "Bull{etin}" column in the student newspaper, the Advocate, contains not only tidbits ("five percent of all the attorneys in America are in Washington") and jokes (medical labs use lawyers because they'll "do things rats won't"), but also personal critiques: Prof. Charles Craver's exam in employment discrimination, wrote Banzhaf, was "at least half wrong" because of a recent Supreme Court decision, and students who predicted this "should get their grades increased."

Craver found this irksome: "He didn't ask me about that. If he had, he would have found out that the statements he made were false."

In a more recent incident, Banzhaf saw Adjunct Prof. Samuel Delgado smoking a cigarette in the law building-against the rules-and confronted him.

"He began to hoot and holler," says Delgado.

"He got surly and was cursing me out," says Banzhaf.

A little later, according to both, Banzhaf entered Delgado's classroom with security guards and demanded that Delgado present identification.

Delgado did.

Then he told Banzhaf to get out of his classroom.

Banzhaf did.

"It was almost a comedy of errors," says Banzhaf. "Neither side knew who the other was."

He wrote Delgado an apology for a "most unusual and regrettable incident."

Can't win 'em all.

[Illustration]
PHOTO,,Harry Naltchayan;PHOTO,,Craig Herndon CAPTION: Public interest lawyer John F. Banzhaf III. CAPTION: Public interest lawyer John F. Banzhaf III with Heidi Halleck and Walter North, who filed the complaint against the dry cleaners.

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