Herald Price Fahringer, Prominent 1st Amendment Attorney, Passes

NEW YORK CITY—Herald Price Fahringer, a dedicated free speech advocate who defended such well-known/high-profile adult industry clients as Reuben Sturman, Larry Flynt and Al Goldstein, died of prostate cancer on February 12 at his home in Manhattan. He was 87.

Fahringer, a graduate of the University of Buffalo Law School in the early 1950s, was a founding partner of the firm now known as Lipsitz Green Scime Cambria, and for more than 25 years ran that firm's New York City office. However, in 2002, having run up against the firm's retirement policy at age 75, he left to open his own firm in New York City, Herald Price Fahringer PLLC, where he practiced with his associate of 20 years, Erica Dubno, before making her a full partner in 2007 and adding her name to the firm's d/b/a.

"Herald started off doing matrimonial law as well as criminal law and appellate work," recalled Fahringer's former partner, Paul Cambria, "and what happened was, it may actually have been Reuben Sturman who first started Herald in the adult entertainment world with some cases that he had in California, and then there were eventually some in New York and Ohio, and Herald started doing things for him. He was involved with another guy named Stanley Malkin and I really didn't know what Stanley's role in anything was, but his name used to come up all the time; he was like Herald's main friend.

"I started with the firm—back then, we were Lipsitz Green Fahringer Roll Schuler & James— in '71 as a law student and wanted to work for Herald, and Herald wanted me to work for him because Herald basically lived at the office. He was there seven days a week; he might not have been there all day Sunday; he'd leave to go watch football, but for the most part, Herald was a seven-day-a-week lawyer, and I was a seven-day-a-week law student when the summertime rolled around. I lived 50 miles away in those days and I would drive in just to work on Herald's stuff on Saturdays and Sundays, and of course he ate that right up because that's what he was looking for: someone who was as crazy about the work ethic as he was. So we immediately bonded and I became his trial assistant but I had my own separate practice within the law firm as well. I worked for a lot of lawyers, but first preference came to Herald."

Cambria added that back in those early days it wasn't uncommon for Fahringer to ask him to research some finer point of law or to write a jury instruction and fly from Buffalo, where the main portion of the firm was located, to New York City, deliver the documents and then fly directly back to Buffalo, all in a matter of hours. Cambria was also right there for some of the pair's most famous cases.

"Al Goldstein was already Herald's client, referred to him by some people in New York City, and Herald and I, beginning in '74 and then '75 and eventually '76, tried both of Goldstein's [obscenity] cases, first in Wichita, and that was set aside, and then we went to Kansas City. When we went to Kansas City, we ultimately hung the jury 9-3 for acquittal, and the government gave up and dismissed the charges against Al, which of course was a huge victory in those days, and also against his two publications, Screw and Smut."

Much later, Fahringer again represented Goldstein, this time on charges orelated to Goldstein having harassed his then-secretary by publishing her name and address in Screw with the admonition that people should contact her and bother her.

"The saddest thing about the case is, not a single person ever actually contacted her," noted Erica Dubno. "But years ago, after we won Al's appeal on the harassment case, Al published a drawing of Herald on the cover of Screw magazine, and it showed Al being crucified, and Al had his ex-wife Gena as the judge, the prosecutor crucifying him was his son Jordan, and it has a picture of Herald standing there holding the law books and preventing Jordan's spear from impaling Al. It's a great picture." (Reproduced above.)

"As for our connection to Flynt, Flynt called Buffalo looking for us because he wanted to interview us for his new fledgling magazine Hustler," Cambria recalled. "We had just finished Al's case; Herald was in New York City, I was in Buffalo. I took the call and he basically said, 'I started this new magazine called Hustler,' and I told him I'd never heard of it, so he said, 'There's only been a couple of issues published and we're in Columbus, Ohio and we'd love to interview you guys for a feature article on the Goldstein case.' So in the conversation, that's when Larry said, 'You know, do you guys do regular criminal work?' And I said, 'Well, interestingly enough, 98 percent of our business is traditional white-collar, blue-collar criminal defense and appeals, and the obscenity part is kind of a specialty.' He says, 'Well, I'm charged in Cincinnati with a number of state charges, and would you guys like to represent me?' So I said, 'Well, sure, that's what we do,' and Larry and I made the deal, Herald came back to town, I told him, and then he and I flew to Cincinnati to represent Larry in connection with his state charges, and in the course of that, they indicted Larry on Hustler, and he had his famous trial and we were co-counsel."

According to The New York Times, Fahringer told the jury during one of Flynt's obscenity trials, "Freedom is only meaningful if it includes all speech, no matter who is offended by it. It would be a hazardous undertaking for anyone to start separating the permissible speech from the impermissible, using the standard of offensiveness. The freedom guaranteed in the First Amendment is indivisible. You can’t take it away from Larry Flynt and keep it for yourself. The real issue of this case is: Are we afraid to be free?"

Cambria and Fahringer were also present in Gwinnett County, Georgia in 1978 for Flynt's obscenity trial—and for the ambush shooting by white supremacist Joseph Paul Franklin that wounded Flynt's local counsel Gene Reeves, Jr. and left Flynt paralyzed from the waist down.

Another prominent attorney who knew Fahringer early on is J. Michael Murray, whose recent appellate argument on behalf of the Plaintiffs in the 2257 case was covered here.

"Herald was truly one of the giants, a great champion of the First Amendment and civil liberties generally and was a magnificent trial lawyer," Murray, who worked with Fahringer on several cases, recalled. "I remember one of my very, very first cases as a new lawyer; I got to sit in the trial of Reuben Sturman in 1978 in federal court in Cleveland on obscenity charges. It was a huge case; there were nine defendants, and they claimed a nationwide conspiracy to distribute and mail obscene materials throughout the nation. I'll never forget Herald's inspiring closing argument, along with my late partner Bernie Berkman, who was in the case as well, but Herald's argument was magnificent. The jury deliberated for five days and came back with 'not guilty' on all counts, and it was a huge, huge case. It was a great privilege to work with him, and we've really lost one of the pioneers."

One case in which Fahringer had been involved for nearly 20 years involved the adult zoning resolution which the New York City Council, egged on by then-Mayor Rudy Giuliani, approved in 1995.

"Around 1995, the city enacted a zoning law which basically restricted where adult businesses could be located," explained Erica Dubno, "and they said you couldn't be in certain commercial districts, you couldn't be in certain areas, you couldn't be within 500 feet of a church or a school or another adult business, and they relegated adult businesses to awful, awful areas like garbage dumps on Staten Island and places without infrastructure. There were a few places where they could go, but in general, it was a very small percentage of the total city."

The problem was so acute that the Coalition for Free Expression was formed, consisting of 107 adult bookstores, video stores, cabarets and others concerned about free speech rights, including staunch free expression defender/activist William Dobbs, and they hired Fahringer and Dubno to represent their interests against the City.

"We brought a constitutional challenge to the city's zoning resolution," Dubno said. "That challenge worked its way all the way up to the New York Court of Appeals, which is New York's highest court, and then we went into federal court, and ultimately, the courts were holding against us every inch of the way, and in 1998, after all of our legal challenges were exhausted, the city began enforcing its zoning resolution. As a result, a number of stores closed but a lot of stores were able to modify the nature of their business by reducing the amount of adult material that they had, so rather than being exclusively adult places, what they did was became places that had a smaller percentage of adult material."

But the question of what constituted an "adult business" for purposes of the resolution remained unanswered, and Fahringer, along with other First Amendment attorneys including Mike Murray, Ed Rudofsky, Dan Silver and Marty Mehler, went into federal court to attempt to force the City to clarify the term.

"Finally, the city said a 'substantial portion' is 40 percent or more, and so it basically codified what has become known as the 60/40 rule, and the rule basically says if the adult component of an establishment is less than 40 percent of the floor space or less than 40 percent of the stock accessible to customers, then they're not considered an adult establishment and they can remain where they are, so they're not subject to the zoning.

"So it became a huge thing: What constitutes 60/40? How do you measure it? What gets included and what doesn't?" she continued. "And we were litigating—in the summer of 1998, it was like non-stop. We had topless bar cases and we represented Show World and all these places. The city brought enforcement to close these places down. It was a pretty, crazy, aggressive—you know, Giuliani was out there saying, 'We bought padlocks and we're going to padlock the places,' and Herald was standing up as the great defender against the city and so, ultimately, most of the enforcement cases, we won."

But that was far from the end of the problem.

"Ultimately, after we'd won a number of cases, and it just drove Giuliani crazy with Herald and I running through courts all over the city, and he was doing a phenomenal job making all these constitutional arguments, so the Giuliani administration, in October of 2001, literally while the World Trade Center towers were still burning, had hearings down at the City Council to have a new amendment to the zoning resolution, and that amendment would eliminate 60/40 altogether for topless bars and for theaters, saying as long as you regularly feature any adult material, whether it's a movie or a topless dancer, it doesn't matter what the rest of your store is like or theater is like; you're considered an adult establishment.

"And as for for the 60/40 rule for video stores, they said, 'We are going to keep the 60/40 rule, so you still have to have less than 40 percent floor space, less than 40 percent stock of adult, but we're also going to impose all these other restrictions.' They said that the city could close you down if you have a single peepshow booth; if a customer has to walk through an area that has some adult material to get to a non-adult area; if you have a cash register and you force people to pay for non-adult material in an area that has adult material—any of these factors would make you an adult establishment, and they could close you down."

Based on the new rules, which forced segments of the plaintiff group to be fighting different parts of the zoning law, the plaintiffs split into two parts, one consisting of just the theaters and cabarets, represented by Murray, Rudofsky, Silver and others, and the other the book and video stores, which retained Fahringer and Dubno as their counsel. The legal wrangling, lawsuits and court dates continued for more than a decade until, in 2012, Judge Louis B. York struck down the zoning law as unconstitutional and unnecessary—a decision which the Bloomberg administration promptly appealed, and which appeal is now pending in the New York Appellate Division.

But it wasn't just corporate interests that Fahringer protected. He also served as appellate counsel for Glenn Marcus, a BDSM practitioner accused of sex trafficking and keeping his live-in girlfriend/submissive as a slave, and of having taken obscene photographs of her and others. Marcus' trial counsel, Maurice Sercarz, got the obscenity counts dropped, but Marcus was convicted on the other charges—and that's when Fahringer got involved.

"When we were working on the appeal, we raised all kinds of constitutional challenges," Dubno said, "but one of the things was that we noticed that the two statutes that he was convicted under, which were the forced labor and the sex trafficking statute, hadn't actually been enacted until a year and a half, almost two years into the period of time that he was charged in the indictment, so we raised an ex post facto challenge and said that they convicted him of conduct that hadn't even been criminal at the time. It was an interesting case, and we won in the federal Court of Appeals for the Second Circuit, and the U.S. Supreme Court took the case, and ultimately, they refined what the standard is that you use to decide whether a defendant's rights have been violated if he's tried under a statute that wasn't even enacted during the whole period of time of the conduct. So they ultimately sent the case back and the court threw out the sex trafficking count but they kept the forced labor count."

As anyone who keeps up on the news knows, there was recently a mini-scandal involving Bruce Willis' daughter Scout walking around Manhattan topless—and the reason she could do that was Herald Fahringer.

"Back in 1992, Herald handled the case of People v. Ramona Santorelli, and that case was really important, because what happened there was that New York was one of only two states in the country that had a law that said that women could be prosecuted criminally for exposing their breasts, but it didn't say anything about the male breast, so women were very upset that it violated equal protection," Dubno explained. "So a couple of women in Rochester intentionally got themselves arrested under this law as a test case. The women were lying there in this park in Rochester, topless, and the police came and the women said, 'Why are you arresting me and not the man who's lying next to me?' And they said, 'Well, you're a woman; that's a man,' and so what Herald did, in the brief that he wrote for the New York Court of Appeals, he used that quotation in a subhed: 'You're a woman; that's a man.' And here, this was an equal protection case, so that was very, very powerful. So he argued the case in the New York Court of Appeals, and the Court of Appeals agreed with him that that violated the equal protection clause, to prosecute women for being topless but not men, so he earned the right for women to go topless in New York anywhere where men can go topless in public places, and it's all thanks to Herald."

But Fahring was involved in far more cases than those involving the adult industry. According to an obituary in the New York Law Journal, he was also the attorney for Lynne Stewart, a lawyer convicted of having provided support to terrorists by passing messages from her client, Omar Abdel-Rahman to his associates; jazz drummer Buddy Rich, who was acquitted at trial of marijuana charges; and he also handled the appeal for Jean Harris, who was convicted of murdering her lover, Dr. Herman Tarnower, a prominent "diet doctor" who'd written the very popular Complete Scarsdale Medical Diet.

Another famous case with which Fahringer was connected was the attempted murder of socialite Sunny von Bülow by her then-husband Klaus, who allegedly tried to inject her with an overdose of insulin. Fahringer lost that trial, but von Bülow won on appeal, which was handled by, among others, Alan Dershowitz.

On a more personal level, Fahringer was something of a recluse. According to Cambria, Fahringer had been married for a few years to Barbara Falk, which ended in divorce, following which Fahringer lived for several decades with a companion, Margaret Noyes, who died in 2007. Fahringer is survived by several nieces and nephews, but had no immediate family.

Fahringer also led what some would describe as an austere life. "You don’t dare use a four-letter word around Herald," Al Goldstein once said, and while Fahringer had no problem spending time in the adult bookstores and watching the adult films he would later defend, he reportedly said, after watching the porn film Cake Orgy, "You'll never eat a marshmallow pie again as long as you live."

Always well-dressed, Fahringer was described by one of his clients as "in the Rossano Brazzi mold," and attorney Richard Ben-Veniste said that he "could have had a career in Hollywood as easily as one in the courtroom"—and indeed, shortly after graduating from college, Fahringer performed in a theater troupe organized by British actor Arthur Treacher, and appeared in several television commercials in the early 1950s.

"If I had to describe Herald, it would be 'a legal silk'," Cambria said. "Herald was the hardest-working lawyer I ever met and he instilled that in me, and I'm sure he did the same in Erica, and if it were not for Herald, no one would have ever known my name in the legal world, I'm convinced."

"Herald was flawless; Herald was a role model for all attorneys because he carried out his duties as an attorney in the most zealous manner," said Charles DeStefano, another attorney who frequently deals with First Amendment issues. "He stood down to no one, but he treated his adversaries not as enemies but just simply as adversaries. He used his intellect as a weapon, he used the law as a weapon, but he did so with the utmost courtesy, and I don't think there are many lawyers that will follow him; I don't think there have been many that preceded him. He was one of a kind."

"Herald Price Fahringer was one of a dying breed, to be compared with Racehorse Haynes," said Larry Flynt when asked for a comment. "He had a flair in the courtroom and a gift that worked with the jury. I doubt we'll see the likes of him again anytime soon."

However, Fahringer's law partner Erica Dubno has no intentions of allowing his work to end simply on account of his passing.

"Our firm is going to continue to operate and continue Herald's legacy," she vowed, "because I don't want people thinking that just because Herald's no longer with us, that we're closing up shop."

Dubno can be reached through the firm's website, Fahringerlaw.com.