Court Not Pleased With Historic Tapes

When attorney Thurgood Marshall stood before the U.S. Supreme Court in 1958 and argued passionately against segregation in the Little Rock, Ark., public schools, few knew a tape recorder preserved his stirring words.

But rather than allow audiotapes of this and other historic pleadings to be resurrected from the National Archives and distributed for the first time, the high court appears upset that its oral proceedings may now be reprised on Walkmans and home stereos.

A spokeswoman for the court says that the justices are considering “legal remedies” against the sale of “May It Please the Court,” a $75 package of six audiocassettes and a hardcover edition of transcripts, published by the New Press, a nonprofit house in New York. The court says that copying and selling the tapes is in “clear violation of . . . contractual commitments.”

As a result, in its own pin-striped way, the boxed set has become as hot as Madonna’s “Sex” book was last fall. Forbidden fruit and all that.

An initial print run of 20,000 units was insufficient to meet bookstore demand, which has grown to 50,000 and counting, with the official publication date still days off.

“The justices would look petty and vindictive if they came after me,” says Peter Irons, a Supreme Court scholar who obtained the tapes from the National Archives. To get them, he signed an agreement not to duplicate them.

However, he says, “I have every right to release the tapes. The alleged agreement that I signed to gain access to the tapes prohibits their broadcast or duplication, but it imposes prior restraint. . . . All I’m trying to do is extend the walls of the Supreme Court so people can get inside and hear.”

Taping was begun by Chief Justice Earl Warren in 1955. Prohibition against public release of the tapes apparently was implemented in 1971 because Warren E. Burger, then the chief justice, was irked by CBS News’ airing of taped proceedings in the Pentagon Papers case.

On one of the 90-minute cassettes, speaking in Cooper v. Aaron on behalf of Little Rock’s black children, who were facing a delay in full compliance with desegregation law, Marshall tells the justices: “Education is not the teaching of the three Rs. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law.”

“May It Please the Court” also presents Archibald Cox, as solicitor general, defending the Civil Rights Act of 1964 in Heart of Atlanta Motel vs. United States, and Sarah Weddington, decrying Texas’ abortion law in the landmark Roe vs. Wade.

“May It Please the Court” was originally being marketed to high schools and colleges. But controversy--and living history--do have a way of drawing a larger crowd.

JFK Debate Not Closed Yet

During a commercial break on the “Today” show, Bryant Gumbel turned to his guest, Gerald Posner, and mischievously asked whether the author’s publisher owned U.S. News & World Report. After all, the news magazine gave Posner’s “Case Closed” the kind of cover-story hosanna that warms author and publisher (Random House) with visions of lucrative success.

“Posner achieves the unprecedented,” the magazine gushed. “He sweeps away decades of polemical smoke, layer by layer and builds an unshakable case against JFK’s killer.”

Posner’s methodically presented conclusion: Lee Harvey Oswald, a flake even the KGB did not trust, did it. Alone. No conspirators on the grassy knoll. Case closed.

The praise and resulting bookseller interest--orders total around 100,000 copies so far--have dulled Posner’s memory of the long days and nights he pursued his research with scant confidence that the old-fashioned Oswald Theory would receive a respectful hearing alongside the more gripping assassination conspiracies identified by filmmaker Oliver Stone (“JFK”) and others.

Posner, 39, who gave up a Wall Street law career for book writing in the mid-1980s, indexed all 26 volumes of the Warren Commission’s report, an exercise in tedium that he considered vital to compiling his chronicle of the assassination.

“Originally, Random House didn’t want the book, at least not right away, because there were already so many books out there about the assassination,” Posner recalled. “What changed their minds, I think, was the Stone film, which brought back into the public consciousness all of these doubts about who really killed the President.”

While Posner picks apart Stone’s film, and has been attacked by conspiracy theorists, the author nevertheless says he owes a debt to the director.

On the Racks

Tricycle: The Buddhist Review marks its second anniversary of exploring the Buddhist influence in American culture with the fall issue, whose cover of the Buddha was painted by Jack Kerouac. Inside, the beat novelist’s previously unpublished life of the Buddha is featured in the second of a planned nine-part serialization of the work, in addition to an interview with novelist and Zen priest Peter Matthiessen. (For subscription information, the Manhattan-based quarterly, which has a circulation of 30,000, can be reached at 800-750-7008.)