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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