A nice tribute to a First Amendment warrior
MONDAY, MARCH 19, 2018
Julie Hilden — lawyer, author, and editor — passed away on Saturday. She was my friend for over 30 years. Julie combined a fierce intelligence with incredible kindness. Her work was brutally self-critical even as she was extraordinarily generous to others. I’ll try to paint a picture of her life and work, but this is also a personal remembrance.
I first met Julie in college on the debate team. She was good at it, but debating wasn’t really Julie’s calling. She was more interested in following ideas wherever they led than in taking a side and sticking with it. She was also the sort of person who liked to work through her ideas on the page. Don’t get me wrong. Julie was a terrific debater. It’s just that she seemed less intense about it than most of the rest of us–which, from the vantage of middle age, looks like a virtue.
Perhaps Julie’s intellectual openness and curiosity explain why, after law school, she was drawn to First Amendment work. She was in some ways a conventional free speech libertarian. She was skeptical of rationales for imposing sanctions on speakers, because she worried about line drawing by the government.
However, Julie’s free speech libertarianism was neither absolute nor automatic. Running throughout her numerous columns on free speech (archived here) one finds a focus on what my colleague Steve Shiffrin has argued ought to be the central concern of free speech doctrine: dissent. Julie was especially interested in protecting the free speech of relatively powerless dissenters, as in this column in which she argued that a high school cheerleader ought to have the right not to cheer for a player who she says assaulted her. More broadly, Julie often sided with student activists. Always still a kid at heart, I think she identified with them.
Although Julie made frequent reference to Supreme Court doctrine in her free speech writing, she did not follow it blindly. For example, she praised Justice Alito’s solo dissent in United States v. Stevens. There, the majority struck down a law that criminalized depictions of cruelty to animals. Julie thought Justice Alito had the better argument, partly because of some technical concerns about the difference between as-applied and facial challenges, but especially because she thought the existing categorical exceptions to free speech were less justifiable than the one on offer by the government. As she wrote, contrasting the recognized exceptions for obscenity, defamation, and fraud with the rejected category of depictions of animal cruelty:
obscenity’s only conceivable harm to the viewer is psychological and temporary; the viewer can quickly turn away. Defamation harms reputation, but the target always has the power to reply – either in civil court, while seeking money damages, or in the press or, increasingly, via the Internet. And the victim of fraud can generally be made whole with money, in civil court.
In contrast, the cruel murder of an animal effects damage that is permanent, ineradicable, and uncompensable. Nothing can truly remedy what has occurred, for the pain has been suffered; the death has occurred. There is no justice for the animal, except perhaps in the criminal prosecution of the perpetrator – but unlike a person who is being murdered, an animal does not even have the comfort of knowing that he may die, but at least justice will eventually be done.
And, Julie continued, the government has a sound rationale for banning the depictions of animal cruelty because the sale of such depictions drives their production–the same rationale that the Court has said justifies bans on child pornography.
Julie’s compassion for non-human animals permeated her life. She and her partner Stephen adopted an older dog from a shelter because they thought he wouldn’t otherwise find a home. Julie became a vegan and used her voice to advocate for the voiceless–as always firmly but gently. I’m going to make a donation in Julie’s memory to The Gentle Barn, a farm animal sanctuary she loved. If I weren’t already a vegan myself, I’d take the 30-day vegan challenge. I recommend it to anyone looking for a way to honor Julie’s memory. It’s hard to know what causes what, but I think that editing Sherry Colb’s columns over the years–many of them on animal rights themes–awakened Julie to the plight of non-human animals as a justice issue. I’d like to think that I played a small role in that process too, although I wrote and write less frequently on animal rights.
Julie edited all of us on FindLaw’s Writ, and then after FindLaw decided to go in a different direction, she was instrumental in moving us en masse to Verdict on Justia. I have been in close touch with my fellow columnists in the last several days. To a person, we were and are deeply affected by Julie’s life and death.
Julie was my friend before she was my editor, but that didn’t stop her from gutting my writing when it needed gutting. To this day, I somewhat ashamedly recall that I didn’t actually write what I regard as the best line I ever wrote. It was in a column about the San Remo case in the Supreme Court. A federal judge told a plaintiff to take its case to state court for the adjudication of a tricky state law claim and then come back to federal court afterwards. When the plaintiff did that, the federal court said that going to state court forfeited the claim. The Supreme Court agreed. I wrote that this was unfair. Julie improved my flat prose immeasurably. She crossed out what I had written and substituted: “If the case were a banana, it would have gone from green to rotten–with no time at which it could be deemed edible.”
Julie’s first love was literature. She always had interesting off-beat suggestions for what to read. After a few years as a practicing lawyer, she decided to take a crack at writing full-time. She was already highly credentialed as a Harvard College and Yale Law School graduate, but she felt untrained, so she applied to and then attended Cornell’s MFA program. Out of that came what was first a novel that Julie converted into a memoir by stripping out a fictional plot and leaving in the autobiographical material. The Bad Daughter is an elegant, searing book that was a revelation to those of us who thought we knew Julie.
Julie called herself a bad daughter because, when her mother was diagnosed with early onset Alzheimer’s disease, she did not drop her career to care for her. Given the nature of the relationship and behavior that preceded the diagnosis, “bad” was grossly unfair. I now think–indeed the book pretty clearly suggests–that Julie was in denial about what her mother’s disease said about her mother’s past behavior towards Julie and, more ominously, what it portended for Julie’s own future. Denial strikes me as a perfectly sensible reaction to the knowledge that a time bomb is ticking inside you–for Julie and, in a real sense, for all of us.
The Bad Daughter also chronicled Julie’s infidelities and sex life more broadly as of the time she wrote the book. She expressed a kind of guilt about the infidelities but not about the sex. Roughly contemporaneous with the run of Sex and the City, Julie’s chronicle of her own adventures as a young single female professional in NYC was both more interesting and more nuanced. She had a feminist sex-positive attitude, but not one that precluded her seeing her inability to sustain a committed relationship as undermining her own life satisfaction. She expressed the same complex feminist erotic sensibility in her novel Three. It’s dark but not a morality tale in any conventional way.
Julie also wrote a book that I confess not to have read yet, The Film Student and Me. We would be better off if we had still more books by Julie. The main reason we don’t, I think, is that after she met Stephen she was just too damned happy with their life together in Venice, California. She was emotionally and intellectually stimulated, but life gave her fewer difficult moments to turn into literature. It’s a tradeoff I don’t begrudge her. I just wish Julie had the good fortune to enjoy the life she deserved for another four or five decades.