Playboy Interview: William Kunstler

If Abbie Hoffman, Stokely Carmichael, Jack Ruby, Tom Hayden, Martin Luther King, Father Daniel Berrigan, Adam Clayton Powell and Dave Dellinger have anything in common, it's the attorney they've shared over the past decade: William Kunstler. Nothing in his early life indicated that Kunstler would find himself in such controversial company. The son of a physician, he attended Yale, where he swam on the varsity team and was elected to Phi Beta Kappa; he then went on to serve in the Army during World War Two, attaining the rank of major and earning a Bronze Star. After discharge, he look a law degree from Columbia University and became what he now calls "a legal tradesman" in commercial and divorce cases. He practiced law, wrote books, raised a family and generally prospered, until the civil rights movement of the early Sixties began to capture more and more of his time and attention. Kunstler's transformation from defender to advocate seemed complete when he defended the Chicago Conspiracy Seven this year in a trial that critic Dwight MacDonald has said set the pattern for "new-style radical courtroom tactics" intended to create "a head-on collision, a public confrontation between the extremes of American politics and life styles, the radicalized, alienated youth versus the bourgeois establishment."

The Chicago trial was so abrasive and Kunstler's tactics so contentious that he lost a large measure of the liberal support he had won during his civil rights days. The New York Times accused the Chicago defendants, "with the apparent acquiescence and encouragement of their lawyers," of deliberately trying to destroy the judicial establishment itself. But what support Kunstler lost in liberal circles, he more than made up for among members of the young radical left. Following the trial, he was enthusiastically greeted by students on campuses throughout, the country, and the welcomes were so vociferous that officials at many colleges tried to deny Kunstler a forum, on the grounds that his speeches were incendiary. Following one appearance at the University of California in Santa Barbara, angry students and police fought for several days, and the violence resulted in the death of one student and the burning of a branch of the Bank of America--an event that has assumed heroic proportions in the mythology of the New Left. There were calls for the prosecution of Kunstler on, ironically, the same charge that was brought against the Conspiracy Seven: violation of the so-called Rap Brown anti-riot statute, which makes it a Federal offense to cross state lines with the intent to incite a riot. No action was taken against Kunstler as a result of the episode, but feelings about him were further polarized.

His reputation as a defender of radicals and their causes, while gaining him favor with student activists, has not won him friends even among those who share his legal philosophy. Many civil rights and civil liberties lawyers agree with the attorney who told a reporter that Kunstler "brings cases on page one and the NAACP Legal Defense Fund wins them on page 68." The reporter added: "There are countless stories of meetings he has missed, deadlines he has overlooked, details he has ignored, committees he failed, client bonds that have been forfeited, papers he hasn't filed." Whatever professional failings he may be guilty of, Kunsller cannot be accused of lacking a sense of commitment to those he defends. During his pleas on behalf of the Milwaukee 14--a group of Catholic activists and Christian Brothers who burned the 1-A files of several Milwaukee draft boards--Kunstler became so personally involved that he offered his house, car and bank account as surely for his clients' bail.

Kunstler, 51, puts in an 18-hour day and, even when he's not traveling, he's usually up at dawn and spends most of his "free" nights on the telephone and in meetings with his clients. He and his wife, Lotte, live in Mamaroneck, a suburb of New York City, in an 11-room house purchased when the one best seller among his books, "The Minister and the Choir Singer" (an account of the Hall-Mills murder case of the Twenties), was sold to the movies. Since he now accepts no fees for the political cases that consume most of his lime, the Kunstlers rent the top floor of their home, for additional income, to an interracial couple. Kunstler's two daughters, both grown, no longer live at home. Karin, a former Peace Corps worker in Africa, spent a year at Tougaloo Southern Christian College, a predominantly black school in Mississippi, and is now married to a New York lawyer. The other daughter, Jane, was recently graduated from the University of Wisconsin. Both are deeply involved in "movement" work.

Because of his peripatetic activities as the one lawyer whom nearly all segments of white-radical and black-activist groups appear to trust, Kunstler admits he no longer has a private life. And there is little possibility that the demands on his time will lessen in the years ahead--particularly if, as he predicts, the Seventies prove to be a decade of escalation by the left from protest to "resistance." "It runs exceedingly difficult," says Nat Hentoff--who conducted this "Playboy Interview," the most wide-ranging Kunstler has ever given--"for him to fit our conversation into his schedule. There was also the question of deciding on a place where he could be insulated from telephone calls during the lengthy period this detailed an interview would require. Having finally freed an afternoon, Kunstler agreed to my suggestion that we tape the interview in my apartment in Greenwich Village

"He came out of the elevator," Hentoff continues, "looking gaunt, weary, his suit rumpled, as usual. We hadn't seen each other for some time, but he immediately placed an arm around my shoulders as we entered the apartment and then disengaged himself to kiss my wife, whom he had never met before. I exiled my children to another part of the apartment and took Kunstler into a back room. He sank heavily into an armchair and I wondered briefly if he could muster the stamina that a long interview would require. But as soon as we began talking, first about the Chicago trial and then, about his dark vision of America's political climate in the Seventies, Kunstler's weariness disappeared and he spoke well into the evening with unflagging energy and passion. I began by asking him, now that he had been able to contemplate the Chicago trial in retrospect, to distill the significance of that seminal event."

[Q] Playboy: At the start of the Chicago trial, Rennie Davis, one of the defendants, charged that "in choosing the eight of us, the Government has lumped together all the strands of dissent in the Sixties.... The movement of the past decade is on trial here." Do you agree with his assessment?

[A] Kunstler: Yes. This was a conscious effort by the Government to use what it considers legal processes to attempt to kill a movement. And each of the defendants was chosen for specific reasons. Dave Dellinger was selected to represent both the middle-aged left and the old-line pacifists who regard him as the leader of that part of the movement since the death of A. J. Muste. Rennie Davis and Tom Hayden served several functions. Both were in at the origin of Students for a Democratic Society and both had deep connections in the ghettos--Tom in Newark and Rennie in Chicago. Furthermore, they were meant to represent the young people allied with Dellinger. The Government's theory was eventually to be that Dellinger was the architect of the alleged conspiracy and that these two were his young lieutenants who furthered the purpose of causing a riot at the 1968 Democratic Convention in Chicago. Abbie Hoffman and Jerry Rubin, of course, were chosen as representatives of the revolutionary youth culture in the United States.

[Q] Playboy: But why were the virtually unknown John Froines and Lee Weiner included?

[A] Kunstler: For two reasons. They represented the dissenting academic community. Froines was a professor of chemistry at the University of Oregon and Weiner was a graduate student of sociology at Northwestern. One professor, one student. Furthermore, they were also there specifically because they were not leaders. Through them, the Government's intent was to intimidate those who follow radical leaders. Their being prosecuted meant that anyone in the movement, however unknown, is vulnerable. And Bobby Seale--though he was in Chicago during these events for only 16 hours--was brought into the case as a representative of black militancy. So Rennie's point that the movement of the past decade was on trial is entirely correct.

[Q] Playboy: Your clients and Bobby Seale were charged with conspiracy; would you claim that there was a Government conspiracy against them?

[A] Kunstler: I can't say with any certainty that at a given time and place, people met to plan the course that led to the trial and its particular roster of defendants. But this is what I think happened: On September 6, 1968, Mayor Daley issued a white paper in an attempt to show that the city, its officialdom and police were free from blame and that all the trouble at the convention had been provoked by the demonstrators. Three days later, Federal District Judge William Campbell--a man who I've been told refers to Mayor Daley as "Chief"--convened a grand jury and instructed it to look specifically for violations of the new Federal anti-riot statute. He did this despite the fact that United States Attorney Thomas Foran. had received orders from Ramsey Clark, then the Attorney General of the United States, not to convene a grand jury but merely to investigate the situation in Chicago through the use of routine investigators, with particular emphasis on certain police activities. But, a grand jury having been convened, Mr. Foran--who owed his appointment, it should be noted, directly to Mr. Daley--did come up, through the grand-jury process, with "supporting evidence." I believe, therefore, that the trial of the eight defendants originated as an effort to clear Mayor Daley of any responsibility for what had gone on during the Democratic Convention.

[Q] Playboy: Tom Hayden and several of the other defendants said at the time of the investigations that they doubted a trial would actually take place.

[A] Kunstler: The national Administration changed while the grand jury was sitting, and there were a few months of doubt as to whether any indictments would be returned, in view of the fact that a certain amount of wire tapping of exceedingly doubtful legality had been perpetrated on at least five of the potential defendants. But in March 1969, the grand jury finally did return indictments against the eight alleged conspirators, as well as against eight policemen accused of violating the civil rights of certain demonstrators and newsmen. As you know, all the policemen were acquitted in Chicago. But by this time, I think the latter part of the grand-jury investigation was certainly under the scrutiny of John Mitchell, the new Attorney General. And it was Mitchell, I believe, who decided that it would be politically useful to the Nixon Administration to proceed with the indictments against the alleged conspirators.

[Q] From a Republican viewpoint, these seemed to be very safe indictments politically. Everything at issue had occurred during a Democratic National Convention in a city controlled by a Democratic machine. If the Republican Administration convicted the defendants, it would get the resultant political benefits. But just to be on the safe side, Mitchell didn't use a Republican prosecutor. Instead, he used Foran, the holdover Democratic-appointed U.S. Attorney in Chicago. So if things didn't go right, the Nixon Administration could say, "Well, we tried; but after all, this is between Democrats, including the prosecutor, and we Republicans did our best to have justice done." I wasn't privy to any of the discussions, so I can't prove any of this, but it does seem to me the logical chain of events.

[Q] Playboy: Despite the fact that the trial received enormous publicity, are you satisfied that most people fully understand the significance of the charges brought against the defendants and the implications they hold for the future of political dissent in this country?

[A] Kunstler: I'm not at all certain that the citizenry at large recognizes the danger of the weapons used by the Government, and I think it vital that they be examined. To begin with, the trial was the first application of the insidious anti-riot statute that is part of the 1968 Civil Rights Act. The main reason it appears in that Civil Rights Act is that Strom Thurmond, who shepherded the anti-riot measure through the Senate, made it clear to the liberals in that body that the forces he controlled could filibuster the Civil Rights Act to death unless it included the anti-riot provision. This provision had been introduced in the House of Representatives by William Cramer of Florida in 1967, after a disturbance in Cambridge, Maryland, following a speech there in July of that year by Rap Brown. Cramer had proposed that statute as a method of prosecuting, on a Federal level, "outside agitators" who traveled from state to state giving speeches that were followed by disturbances. Thurmond succeeded, as I've noted, in blackmailing the Senate into passing this dangerous legislation in 1968 as part of the Civil Rights Act.

[Q] Another factor is that while Thurmond was maneuvering in the Senate, Dr. King was assassinated, with resulting disturbances around the country. So in addition to Thurmond's pressure, the liberals in Congress were stampeded by the necessity to produce some sort of legislation in reaction to the violence that followed that tragedy. Accordingly, they were all the more ready to compromise with Thurmond. The subsequent bill, including the anti-riot provision, was signed by President Johnson on April 11, 1968. And it's significant to note that the first overt act attributed to the alleged Chicago conspirators was a speech that look, place the next day, April 12.

[Q] Playboy: You stress that the anti-riot statute is dangerous. Why?

[A] Kunstler: The measure, from the moment it was introduced, was shrouded in uncertainty as to its constitutionality. Ramsey Clark himself had said it was unconstitutional, and he testified against it during hearings of the judiciary committees of the House and Senate. Consider what this statute actually does: It makes it a Federal offense with penalties of up to five years in jail and a $10,000 line to cross state lines--or to use any interstate facility, such as the telephone or the mails--with the intention of promoting, encouraging or participating in a riot. And a riot is defined as a disturbance in which three or more people are involved that causes injury to persons or property, or even threatens to do so.

[A] It's not generally known, incidentally, that the labor unions quickly recognized, as the bill was being debated, that this anti-riot statute could put an end to most strike activities of the various unions in the country. All you needed was a situation in which an interstate facility was used--say a telephone--to call for money in aid of a strike or to call for supporters on a picket line. People would then come in from out of state, a disturbance involving three or more people could easily take place, some property damage might result, and then the Government would have all the ingredients necessary to prosecute.

[A] So, under pressure from labor, the House and Senate added a provision that nothing in the anti-riot statute should apply to the lawful activities of labor unions. But the rest of the citizenry is not protected against this vague, uncertain, indefinite statute, which is wholly aimed at free speech. And I wonder how many people also realize that under this statute, the "riot" that takes place can refer to a disturbance in which defendants who allegedly crossed state lines with the "intent" to promote it are not even directly involved. It can happen miles from where they are. And, furthermore, such a "riot" can be caused by undercover policemen acting as agents provocateurs.

[Q] Playboy: In the Chicago trial, each of the defendants was not only individually charged with crossing state lines with intent to incite to riot, but also charged with conspiring with one another to commit that offense. The jury didn't convict on the latter count, although it found Dellinger, Hayden, Hoffman, Rubin and Davis guilty of individually violating the anti-riot statute. Are you encouraged by the fact that at least the conspiracy count didn't stick?

[A] Kunstler: Encouraged would hardly be the word. The fact that the jury rejected the conspiracy charge in this case hardly guarantees that the Government won't use it again, as it has so often in the past. Here, too, I believe it vital that people understand how dangerous the charge of conspiracy can be as a tool of the Government. In fact, Judge Learned Hand once described it as the darling of the prosecutor's nursery, because it requires so little proof.

[A] Under a conspiracy charge, it becomes possible to convict defendants not for what they did but for what they may have been thinking when they performed certain acts. It doesn't require proof of any criminal act having been performed at all. It doesn't put the Government to the test that a particular defendant committed acts A, B and C and then let the jury decide if those were criminal acts. What it does do is let the jury look at those acts, which in themselves might be entirely lawful, and infer from them that the defendant, and anyone associated with him in a "criminal conspiracy," was thinking of committing a crime, and these thoughts led to acts--again, not necessarily illegal acts--that were part of a chain intended to advance the perpetration of that crime.

[A] The making of a speech or the writing of an article could be such an act, resulting from an "intention" to later commit a crime. An illustration of how this works was the Government's ability to obtain convictions in the Smith Act case of 1949. Certain alleged Communists were charged with conspiracy to advocate the overthrow of the Government of the United States by force and violence. What the prosecution showed in that case were speeches and writings of the defendants to indicate that they must have had the "intent" of advocating the overthrow of the Government by force and violence. A conspiracy charge is a very deadly business when people can be convicted for making a speech or writing a book or an article.

[Q] Playboy: Don't you think it's possible to surmise intent from speech?

[A] Kunstler: Yes, I do. A man can say, "I'm going to burn down that building." And the building burns down. But at issue here--and this is the core of my objection to the anti-riot statute--is that no criminal act has to be proved. In every other comparable statute, Federal or state, that I've come across, either a criminal act or an attempt to commit a criminal act must be proved if the Government is to win a conviction. Under the language of tills statute, however, there is no such requirement. And that's why I say that in the Chicago trial, speech and speech only was punished. And that's a clear violation of the First Amendment.

[Q] Playboy: But criminal acts did follow some of the speeches by the defendants. There were demonstrations that led to property damage. Couldn't it be argued, as it was. that this constitutes a chain of illegal behavior--from speech with intent to incite a riot to the subsequent demonstrations that were, indeed, followed by riots?

[A] Kunstler: Actually, most of the speeches at issue occurred months before the convention. But in any case, there is, first of all, a serious question as to whether riots were provoked not by the speeches of the defendants but by the behavior of the police. And there is a state of Illinois incitement-to-riot law already on the books that could have been used if there were evidence directly tying the defendants to riotous behavior that involved the destruction of property. But by using the Federal anti-riot statute, and I keep underlining this, the Government could punish speech itself--along with the amorphous charge of "intent." And that's what was done. Five of the defendants were convicted for making speeches. Nothing else was proved against them.

[Q] Playboy: What about the other convictions in the trial--the sentences levied against you and the others for contempt of court? Why did you open yourself to these charges by defying courtroom protocol?

[A] Kunstler: All of the outbursts in the courtroom and all of the protests made by both the lawyers and the clients were provoked by the court. I think it's impossible to divorce the lawyer or the defendant from the human being; and when there are ultimate outrages committed in the courtroom by the judge, he must anticipate a human reaction. And that's exactly what happened in Chicago. These were human reactions by ten people--two of them lawyers, eight of them defendants--when provoked by a court that lacked all sensibility, all sense of fair play and due process. It was a court acting on the premise that it would do anything to convict the defendants--even sacrificing the Constitution in the process.

[Q] Playboy: Contradicting the impression given by many reporters. I. F. Stone, in his biweekly newsletter, contends that "It was not until the fifth week of the trial that disruptive protest began. This was when Bobby Seale's effort to represent himself--as he had a legal right to do--culminated in his being bound and gagged and then sentenced to four years for contempt, while his case was severed for separate trial." Was it really only at this point that your "human reactions" to the court's provocation began?

[A] Kunstler: I think Stone's analysis is essentially correct. There were really no disruptions of any consequence up to that point. And I would also emphasize that throughout the trial, the periods of disruption were quite slight in terms of the total amount of time involved. The trial lasted nearly five months and proceeded quite expeditiously. The total number of disruptions, if added together, didn't consume more than perhaps three hours of court time. But it's true that the judge's treatment of Bobby Scale contributed greatly to the cumulative frustrations of all of us that led to the subsequent outbursts. At the start, Judge Hoffman had refused to grant a seven-week adjournment so that Charles Garry, who was to have been Bobby's counsel in this case, could recover from a gallbladder operation and come to Chicago. This is the same judge who, only recently, granted a six-week adjournment to a lawyer who wanted to go to the Caribbean for a holiday. A trial doesn't start until the first witness takes the stand. But Bobby had been asserting his right to have Charles Garry as his counsel even before the jury was chosen.

[Q] Playboy: Aside from Seale's subsequent insistence on his right to conduct his own defense, wasn't there a decided disagreement about tactics among some of the other defendants?

[A] Kunstler: No, the divisions among the defendants were not great. Since they were such highly political people, there were, of course, many discussions as to logistics, the form of testimony, the types of witnesses to be called. But all disagreements were ironed out among us. From the very beginning, this was a team defense. We had a sort of majority rule in effect, and I don't think any of the defendants felt that his own defense had been harmed in any way by the decisions reached by the team.

[Q] Playboy: Isn't your claim that this was a team defense, and that you were doing your clients' bidding, an abdication of your responsibility as an attorney and an officer of the court?

[A] Kunstler: Not necessarily. This was very clearly a political trial. The obligation of a lawyer for a defendant in a political trial is merely to explain to the client what the law is and what penalties he may suffer for certain political actions he may take in the courtroom. Once that's explained and the defendant decides on a political defense, the lawyer's responsibility is to help him do just that. In sentencing me for contempt, Judge Hoffman pointed out that I had never publicly admonished the defendants nor in any way called them to task for what they were doing in the courtroom. He was right. I hadn't. But as I told him then, and I tell you now, I don't think it is my responsibility in a political trial to do that.

[Q] Playboy: But as an attorney, did you advise them privately of the possible consequences of their courtroom behavior, so that they knew what they were letting themselves in for?

[Q] Kunstler: We were all aware of possible contempt citations, as you can see by reading what Len Weinglass, the other defense attorney, and I often said during the trial. We did talk with the defendants after outbursts took place as to what the consequences might be. But they agreed that they wouldn't try to suppress their natural reactions as human beings to outrages against them and their families and friends in the courtroom. And I certainly wasn't about to advise them to try to prevent themselves from reacting spontaneously to those outrages. If a lawyer feels that certain tactics by a defendant violate his own principles, he is free to resign from the case. But if a lawyer--and I refer to myself in Chicago--feels that what the defendant is doing is morally and ethically right, he should remain in the case, without urging one course or another.

[Q] Playboy: Isn't it the duty of a lawyer to maintain a certain independence from his client, rather than to totally identify himself with him?

[A] Kunstler: Again, I must emphasize that in a political trial, where the intent is to punish a defendant for his thoughts, my conception of a lawyer's obligation is that he must join with his client in presenting a political defense; that he should, in effect, be the political agent of his client in the courtroom. This is not to say that I kept all my own opinions to myself during the case. I took part in the debates with the defendants. I had qualms about certain witnesses they wanted to call, feeling they might have an extremely adverse effect on the jury. But the majority wanted them, and those witnesses were called. In retrospect. I now believe the defendants were right in putting on every witness they called. You see, in the beginning, I didn't think it was possible to educate a jury from middle America about the legitimacy of life styles so different from their own. I didn't think it was possible to sway them by utilizing witnesses who would talk about sex and drugs and the like. But as a result of the trial, I now see that it is possible. Four members of that jury--although they eventually compromised their views--were evidently educated enough by these witnesses to find the defendants innocent of all the charges against them.

[Q] Playboy: Was it the life styles of these witnesses--and of the defendants--that impressed those four jurors? Couldn't they simply have felt there was insufficient evidence to find the defendants guilty?

[A] Kunstler: I think it was a combination of both factors. Those four jurors were impressed, it seemed to me, by the honesty of the defendants in not trying to mute or conceal their life styles, and they also found the prosecution's case very weak. But I do believe that the life styles of the defendants--and of such witnesses as Tim Leary and Allen Ginsberg--were vital factors in the trial. The jury was exposed to wholly new ways of life, which included "forbidden" words, drugs, sex outside of marriage. Four jurors--and who knows how many other people following the trial at home?--began to sense that there was a wider world than they had ever conceived of before.

[Q] Playboy: What about the other eight jurors?

[A] Kunstler: Well, some of them hated the defendants from the beginning and must have been increasingly turned off the more they found out about this wider world. But we did reach four, and that's a pretty good percentage; 33-1/3 percent of the jury was educated to that point and, I think, came through the trial with a new respect for types of life styles other than their own. I think we did educate that part of the jury and, through the media, a large segment of the American population as well.

[Q] Playboy: Though you emphasize your "conversion" of a third of the jury, five of the seven defendants were unanimously convicted on counts serious enough to bring them sentences of five years in jail and fines of $5000 each. That's hardly an effective conversion.

[A] Kunstler: The foreman of the jury epitomized what happened when he said the jury had compromised. After all, that's the American way of doing things. By contrast, the defendants refused to compromise. They laid it all out for the jury--their life styles, their politics, everything about themselves. The jury resorted to the American desire not to stand on principle but to blur principles so that they become indistinguishable. Here were four jurors believing the defendants innocent of all charges and eight believing they were guilty of all charges. So the 12 men and women bartered their own dignity and their principles for the sake of a compromise.

[Q] Playboy: Tom Hayden said afterward, "If we had had a jury of our peers, we would have walked out free." Doesn't that imply that the defendants would have had to be tried by a jury of young revolutionaries?

[A] Kunstler: I don't think Tom's point can be handled that simplistically. In my view, a judgment by your peers means a jury composed of people with some affinity to you by age, by occupation, by background. In this situation, that would mean not just young revolutionaries. The law, in any case, has never interpreted "peers" in the way I've just described. It says, in essence, that peers means a jury drawn from the community in which the crime is supposed to have taken place; and it's only recently that the courts have added that such a jury should include at least a representative cross section of that community. Unfortunately, despite the courts' pronouncement on this, juries never do include a representative cross section of a community. The process of selection is such that if the telephone book or the voting rolls are used, people who don't have a telephone or don't vote are excluded. Furthermore, you rarely--if ever--see Yippies on a jury. And black representation is very small. In our case, we had a panel of 300 prospective jurors, all of whom looked pretty much alike and all of whom probably thought pretty much alike on basic issues. With that narrow a choice, we could only have gotten the kind of people we finally obtained.

[Q] Playboy: In all the speeches you've made about the trial, your main target has been not the jury but Judge Hoffman. And in this interview, you've accused him of being responsible for provoking the outbursts in the courtroom. In your estimation, if there had been a judge who had acted less provocatively than Judge Hoffman, would the trial have taken a different course?

[A] Klunstler: I think the trial might have taken a very different turn if there had been another kind of judge. But from the point of view of the political education that we intended as a vital part of the trial, Hoffman was the best judge we could have had. His total lack of sensibility, his total lack of a sense of public relations, his total commitment to the conviction of the defendants all made him commit not only legal errors but also errors in the area of public opinion. And it was these errors which helped gain the defendants so much public support, particularly among the young. Another judge--let us assume a much fairer judge--would perhaps not have enabled the defendants to present as dramatic and convincing a case as they did to the general public. But no matter who the judge was, the defendants would have tried to focus on the war in Vietnam, on the issues of racism, poverty and youth culture. And they would have run right into the terribly binding strictures of rules of evidence, which were not made for political trials but rather for such crimes as, let us say, supermarket robberies.

[Q] Playboy: Is there any way what you call a political trial could be a fair trial?

[A] Kunstler: We might follow the example of an experiment going on in one of the Scandinavian countries, where, if a defendant believes he has been charged with a crime solely because he's active politically or has certain dissenting thoughts about government policy, he's tried in a separate court, where he may put into evidence all the reasons he has for believing he's being politically prosecuted. The government may respond by trying to prove that it's not prosecuting him for his politics but solely for the commission of a crime. If the court finds the government's proof convincing, the defendant is then tried on a criminal charge. A problem with this concept, of course, is that the court appointed to hear whether the crimes are actually political is appointed by the same system that brought charges against the defendant in the first place. But this innovation is at least a recognition of the fact that true political trials cannot be conducted within the strictures that apply to ordinary criminal trials.

[Q] Playboy: In handling the Chicago trial as a political trial, as you admit you did, weren't you doing a disservice to your clients by allowing the legal questions in the case to be blurred by the political questions?

[A] Kunstler: It would have been possible to narrow the defense to the legalities. I could have taken the traditional civil liberties approach that my purpose as an attorney was to prove that the statutes under which the defendants were indicted are unconstitutional and that some of the procedures involved in the trial itself were also unconstitutional. We could have ignored the political aspects of the case and trusted the appellate courts to eventually overthrow the anti-riot statute and overturn some of Judge Hoffman's rulings in the trial. But if we had taken that approach, we would have demonstrated our ignorance of the fact that this was a political trial.

[Q] Playboy: Whatever the nature of the trial, isn't the point to win? Or, in this case, could you win only by losing?

[A] Kunstler: If you can win, you ought to win. But in view of the nature of the defendants and the political issues they felt it essential to bring into the case, the decision had to be made as to what kind of defense ought to be conducted to most clearly expose the trial for what it was and to most clearly illuminate what the defendants stood for. At the beginning of the trial, the defendants, Len Weinglass and I discussed three possible courses of action. We could conduct a straight criminal defense, doing everything to win, including having the defendants cut their hair, wear suits, act decorously at the defense table and avoid any speech or action that might antagonize the jury. A second possibility was for the defendants to remain themselves, try to convey their philosophy and try to get into the underlying issues of the case. The third possible course of action was to forget about winning entirely--to act as uproariously as possible and to deliberately make a farce of the judicial process. Despite the fact that we've been accused of following the third course, the defendants actually chose--and pursued--the second.

[A] They did want to win, but they also wanted to make clear the essential reasons they had come to Chicago in August 1968: to protest the war, racism and poverty and to affirm their own life styles. If you read the transcript, you'll see that we did try to make these reasons clear without overlooking the strictly legal defenses open to us. The defendants remained true to themselves and we, the lawyers, did attack the constitutionality of the anti-riot statute and the conspiracy charge. We did attack the wire tapping by the Government. We did attack the rulings of the judge. We made many motions for a mistrial. And we were trying to build a record for the appellate courts that could make it possible someday for the convictions to be set aside. We did feel, however, that convictions, or at best a hung jury, were likely, because this was a middle-class jury.

[Q] Playboy: Didn't you virtually ensure that this middle-class jury would be alienated and would find the defendants guilty because of the way you and they acted in the courtroom?

[A] Kunstler: We didn't try to alienate the jury. Our intent was to educate them, but without giving up our own integrity of belief and of life styles. That was an important element of the trial. These men were not ashamed of their beliefs nor of their life styles. Quite the contrary. Convinced that they were being persecuted--as well as prosecuted--for their political beliefs, they were determined to stand and fight. In Dave Dellinger's phrase, they were not going to go quietly to the gas chambers. And although victory seemed unlikely before that jury, the defendants didn't abandon all hope of it. They were trying to win. They weren't trying to antagonize the jury.

[Q] Playboy: Even New York Times reporter Anthony Lukas, who was quite evidently sympathetic to your side, noted that, despite your assertion that neither the defense counsel nor the defendants violated courtroom procedures. "Some of the sentences were undoubtedly deserved: five days to Abbie Hoffman for shouting at the judge: 'You're a disgrace to the Jews, runt,' and four days to Dave Dellinger for saying: 'You're acting like a fascist court.'"

[A] Kunstler: I'm going to go out on a limb and say that I don't think any of the contempt sentences were deserved. These defendants are articulate, easily moved by events around them and enormously concerned with the fate of their fellow men. Accordingly, Judge Hoffman, by creating so repressive an atmosphere in the courtroom, laid himself open to even those comments that Tony Lukas felt were deserving of punishment. It was hard to sit in that atmosphere day in and day out and not react as the defendants did.

[Q] Dave Dellinger, for example, was given a sentence of five months for using a "barnyard epithet" in the courtroom. He said, "Bullshit." Now, ordinarily, no lawyer would say that "bullshit" is a proper thing for a defendant to say in a courtroom. But let's put that event in its proper perspective. Here is Dave, a lifelong pacifist, a man used to controlling his emotions in many tight situations. But at this trial, for a whole month before he exploded, Dave had heard Government witness after Government witness take the stand and lie. On this particular day, he was listening to a witness tell a demonstrably gross falsehood, and his response was proper. It was not part of a plan of "disruption"; it came from Dave Dellinger's gut.

[Q] Playboy: Wouldn't it have been more effective--and less harmful to your client --if you had raised an objection to that testimony or cross-examined the witness?

[A] Kunstler: We did cross-examine the witness. And we would have done that even if Dave hadn't reacted as he did. But my point is that his reaction was from the gut; it was spontaneous. I understand that the tapes of the trial are being made into a set of records, and anyone who listens to the complete testimony in the courtroom will have a much clearer sense of what went on. Actually, this was a case that should have been televised.

[Q] Playboy: Then you agree with Jack Gould, The New York Times's television critic, who commented: "One certainly need not argue with the contention of Jerry Rubin... that if the Chicago trial had been televised live, the reaction might well have been inflammatory."

[A] Kunstler: Exactly. So often, Judge Hoffman's inflections ridiculed the defense or would support a Government point in an approving tone that cannot be sensed through the cold print of an appellate record. He would ask the court reporter to repeat words like "vomit" or "erotic" that could hardly help the defendants. If we failed anywhere, it was in not pointing out every single incident of that nature. One thing we did point out so that it would get into the appellate record was the judge's method of reading the indictment to the prospective jurors. I compared it to Orson Welles reading the Declaration of Independence. And some of the jurors who were later questioned confirmed that they had been completely turned against the defendants by the judge's inflections in his reading of the indictment.

[Q] There were other examples of his behavior which television would have documented clearly. When we were summing up for the jury, for instance, he would appear to be sleeping or, at best, uninterested. But when the prosecution was summing up, the judge was perched on the edge of his chair, leaning over, listening intently to every word, so as to give the impression that what the prosecution was saying was much more important than anything the defense attorneys had said. This type of behavior occurred throughout the trial, and I believe it had a dramatic effect on the jurors in terms of the way they reacted to the defendants and to the merits of their case.

[Q] Playboy: One would think that kind of behavior would have reflected on Judge Hoffman rather than on the defense. Was the jury so gullible as not to have seen what appears to have been the judge's clear bias?

[A] Kunstler: I think the four jurors who turned out to be more favorable to our side did see it. As for the others, as some said alter the trial, they started with the viewpoint that it was unthinkable that a Federal judge, being a man in a very high position, could be unfair. But I wouldn't be surprised if even some of them had doubts as to his fairness by the end.

[Q] Playboy: So far, you have implied that all virtue in the Chicago trial was manifested by the defendants and their counsel, while the other side was invariably and perniciously unfair. Yet a New York Times editorial claims that you and the defendants chose "to turn the trial into a chaos of deliberate insults and purposeful disruption."

[A] Kunstler: With this trial, as it does with most issues. The New York Times consistently adopted what I term the half-a-loaf theory. On the one hand, it condemned as an ultimate outrage the failure of Judge Hoffman to allow Ramsey Clark to testify in the case. Yet it condemned the defendants for creating what it called chaos. Like most Americans, The New York Times lives in a dreamworld. It's somehow able to see in what is so obviously a political trial an opportunity to create legal precedents while, at the same time, it denies these defendants the very human quality of responding to provocation. It's not enough to say that the judge is a terrible judge but that if you trust the judicial system, you will eventually be vindicated.

[Q] Playboy: On what basis do you draw that conclusion? What about the Warren Court and its series of decisions that showed the judicial system can be trusted?

[A] Kunstler: We are, first of all, no longer in the time of the Warren Court. The present Supreme Court is moving in a conservative direction, and it's likely to become even more so as more Nixon appointees join the Court. Furthermore, the system feels especially attacked and threatened now, and in such a time the judiciary--which represents the system--reacts with hostility to political defendants. It's only when the contradiction between official action and the law is especially gross that the courts can still be trusted. But when more subtle issues are involved--like the prosecution of people for political reasons under the anti-riot statute--the courts cannot be counted upon. So the defendants in Chicago didn't believe it was their obligation to remain silent and decorous on the assumption that the Supreme Court would eventually declare the anti-riot statute unconstitutional. The defendants didn't see it that way.

[Q] Playboy: But by appearing for trial and conducting a defense, you submitted to the judicial system. And now you may well wind up in jail, without having tested the constitutionality of the anti-riot statute.

[A] Kunstler: But we did attack the constitutionality of the anti-riot statute, and that's one of the main points of our appeal. Admittedly, there is no guarantee that the higher courts will address themselves to the constitutionality of the statute, but our arguments against it are very much part of the record. We weren't there just to get ourselves incarcerated. Since the Government, by bringing this case to trial, was trying to intimidate free speech and those who hold political and social views similar to the defendants', they felt it was their responsibility to make people aware of the political issues involved, to expose the vindictiveness of the system, rather than merely to lay the groundwork for the testing of a patently unconstitutional law.

[Q] Playboy: Do you think they succeeded in that goal, or did they alienate more people than they politicalized?

[A] Kunstler: There's no question in my mind that many, many people were politicalized by the trial. The response that the defendants and I have had at colleges throughout the country since then attests to that. And not only the young have been politicalized. I've addressed many groups of older people who were clearly stimulated by the trial to look more deeply into the underlying forces for repression in Government that led to the trial.

[Q] Playboy: On one hand, you've been saying that the defendants were reacting spontaneously to provocation. But a moment ago, you said that their purpose was to "expose" the system. Which was it?

[A] Kunstler: As I. F. Stone said, it wasn't until the trial was five weeks old that the defendants began to react, because by then it was so utterly clear how political a trial this was. And even then, their reactions were natural, human responses. I don't remember a single instance in which any defendant castigated the judge merely for the sake of doing that as part of some plan. Each outburst was related to a specific occurrence in the court at the time. It's simply untrue to say--as many, particularly newspaper editorial writers, have--that they coldly and without provocation tried to force judicial error.

[Q] Playboy: Are you saying that those editorial writers were lying or just stupid?

[A] Kunstler: Editorial writers are an interesting breed. They write from second- and thirdhand knowledge. As far as I know, the men who wrote those editorials never spent any time in the courtroom. As for the Times, Tony Lukas has complained that most of what he wrote never saw print, and the editorial writers on that paper admitted to Jack Newfield of The Village Voice that they don't read the raw files of their reporters. They base their editorial comment only on what's published in their newspaper, and I think that's a very unfair way to write editorials. I think editorial writers have a great deal to learn about how to translate into a newspaper's official voice what goes on in areas where they have to rely on the reports of other men--particularly when they don't use, or even see, the full reports of those other men. In a way, the newspaper editorials were predictable, because most of the press is part of the establishment and much of what went on in that courtroom was a clash between the free and open youth culture and the rigid "respectability" of the establishment.

[Q] Playboy: In that connection, Lukas wrote that the defense and the prosecution tables "seemed locked in a battle between 'sex and sterility'--the struggle did have its sexual overtones." Do you think that was true?

[A] Kunstler: It's a valid point. The two tables--defense and prosecution--were two worlds, near each other but not touching and probably not understanding each other. The prosecution table was always manned by four men dressed like those lugubrious gentlemen in funeral parlors who wear dark suits, dark ties and white shirts. All looked as if they had their hair cut twice a week. They were the personification of what you would expect of Government prosecutors, FBI agents and the like. Their table was always neat. Their documents were wheeled in on a little coaster every day. Nothing was out of place. Not a hair, not a paper and, I presume--if you looked into their minds--not a thought. They presented an air of somber sterility. When the jury entered the room, the gentlemen at the prosecution table would all stand as if in unison, facing exactly the same way, looking for all the world like a small coterie of soldiers as a commanding general entered. Our table, however, was a symbol of joy, life, clutter. It looked as if it needed a good housekeeper every day. At one time, you might find jelly beans sprawled on it, or marijuana sent by admirers and delivered through the courtesy of the judge's bailiff.

[Q] Playboy: Didn't it occur to you that if the marijuana you were keeping on your table in the courtroom were discovered, you could all have been sent to prison on a drug charge? Wasn't that a juvenile abrogation of responsibility on your part as defense counsel--making yourself and the defendants vulnerable to arrest for possession of marijuana while serious issues were at stake in the trial itself?

[A] Kunstler: I don't think the situation was nearly as grave or as dangerous as you put it. We did keep the marijuana hidden under a copy of the Berkeley Barb, though not entirely hidden. It was there to emphasize the ridiculousness of the marijuana laws themselves. The defendants don't believe that these laws make sense, so having the marijuana there was another expression of their life style. It was also a burlesque, a way of laughing at what was going on in the courtroom. You can be serious about serious issues and still laugh once in a while. It was all part of the ambiance of our table. There was also, for instance, hair sent in response to a plea at the beginning of the trial for hair for Jerry and for Julius Hoffman--to Jerry because his hair had been cut in jail, and to the judge because age had taken whatever top covering he ever had. Also on our table were newspapers, both underground and overground, a Viet Cong flag, an American flag, articles of clothing, books.

[Q] It was the only defense table in the history of American justice where there was daily mail call both in the morning and in the afternoon, and where the letters and the comments in reaction to the trial were left sprawled all over the table. Our table was an unholy mess, but it certainly represented a different approach to life than the prosecution's table did. It was surrounded by two lawyers and eight defendants--until Bobby was removed--all of whom dressed in a different style. There was Jerry in a sweater, Abbie in black judicial robes, John Froines in boots and an open shirt, Tom Hayden in a polo shirt, Lee Weiner in sandals and beads, Dave Dellinger always in a sports coat and a light-colored shirt. And Leonard Weinglass and I dressed somewhat more flamboyantly than our Government counterparts.

[Q] Playboy: But there was a substantial difference between you and Weinglass. According to one account of the trial, "Bill Kunstler was decidedly the 'Yippie lawyer,' a naturally flamboyant man who was generally willing to carry through the most outlandish courtroom gambits. Leonard Weinglass, on the other hand, was the intense work horse of the defense, meticulous in his legal research and preparation, reluctant to be cast in a theatrical role."

[A] Kunstler: There is some truth to that. I didn't, however, look upon myself as a "Yippie lawyer," although I did begin to let my hair grow during the trial and have since become accustomed to its remaining long. As it turned out, I handled most of the Yippie witnesses during the trial, while Len was usually more identified with the New Mobilization witnesses, the more political witnesses. I must say that Len was the law man behind the case. He was deeply involved with the fact finding and with applying various elements of the law to the facts we uncovered. He prepared the case and he knew the facts of what happened in Chicago more thoroughly than any other man in the courtroom. My role was different.

[Q] Playboy: In what way?

[A] Kunstler: While Len did the fact finding, he and I split the cross-examination work and I also was involved in the legal work on the various motions we made. In terms of our presence in the courtroom, we complemented each other. For instance, in the summation for the defense, Len did the factual part and I did the more emotional part, in which the defendants were placed in the context of the present crises in the country, as well as in the context of history.

[Q] Playboy: While no one questions your sincerity or dedication, some lawyers have questioned the degree of your competence as an attorney. Your arguments have been characterized by your critics as being more facile than profound; you have been accused of insufficient preparation of your cases and of not being a first-rate cross-examiner. What's your own self-appraisal? Do you think you did the best job possible for your clients in Chicago?

[A] Kunstler: Well, as far as my being prepared is concerned, I like to be as prepared as I can. But there are moments when I realize that because of the pressure of time or the shortage of research facilities, I don't have everything I'd like to have with me for a particular argument, for the filing of a motion or for other aspects of conducting a case. With regard to my skill at cross-examination, that's hard for me to judge. I don't think it would be very dignified of me to presume to assess the quality of my own work in that respect. I'll have to let the transcripts of this and other trials in which I've been involved speak for themselves. I do think I did the best I could in Chicago. But, again, I couldn't have done it without a colleague of the quality of Len Weinglass and without the scores of young people who did so much of the necessary research.

[Q] Playboy: What were your impressions of the lawyers on the other side--United States Attorney Thomas Foran and Assistant U.S. Attorney Richard Schultz?

[A] Kunstler: In the beginning, I didn't know what to expect of either. I remember speaking to Mr. Schultz on the telephone and having a very hard time with him arranging a date of arraignment, so that we could get all the defendants together. Then I observed him during the trial. He's a young man out of law school, I would guess, only six or seven years. I quickly realized that he saw in this case an opportunity to make a name for himself and to use that reputation as the basis for a rapid rise in whatever area of the law he prefers. I had a different assessment of Mr. Foran. For him, I think the case represented a juicy plum from Mayor Daley. He had worked for the mayor for many years and I think he saw a way to secure his future by his performance in this trial. He's an older man than Schultz, and I expect that his ambition is to secure something quite substantial. At a fund-raising dinner after the trial--where he was photographed with his arm around Judge Hoffman--he announced that he was thinking of running for governor of Illinois, a post he couldn't possibly win without Daley's enthusiastic support.

[Q] Playboy: What was your reaction to the post-trial speech Foran made before the Loyola Academy Boosters Club, the speech in which he said that all but one of the defendants--Bobby Seale--were fags and that "We have lost our kids to the freaking fag revolution"?

[A] Kunstler: I thought he was either drunk or that he was carried away by his audience. Another possibility, and I regard it as a serious one, is that Foran was deeply hurt by the outcome of the case. That is, he was so disturbed by the apparent success of the defendants in reaching large numbers of the American people that he lost all perspective and wanted to destroy the defendants by what he considered the most horrible of charges--that they were homosexuals.

[Q] Playboy: Your exchanges with Judge Hoffman were even less cordial than those with Foran. And yet, at the very end of the trial, you said, "Your Honor, I suddenly feel nothing but compassion for you. Everything else has dropped away." What aroused this sudden feeling of pity for your chief adversary?

[A] Kunstler: That feeling came to me as I listened to him discuss why he was going to sentence me to such a long term for contempt. He said he thought that the increasing crime rate in the United States--if it is, indeed, increasing--is a result of there being lawyers like myself. These were his exact words: "It is due in large part to the fact that waiting in the wings are lawyers who are willing to go beyond, to go beyond professional responsibility, professional rights and professional duty in their defense of a defendant, and the fact that a defendant or some defendants know that such a lawyer is waiting in the wings, I think, has a rather stimulating effect on the increase in crime." Hearing this, I recognized that he was trying desperately to justify and sustain his actions by resorting to an argument that was incomprehensible to anyone inside or outside the courtroom. And it was then that I realized that this was just an old man talking, an old man whose time had passed.

[Q] Playboy: For all your conflicts with Judge Hoffman, there were times during the trial when you actually seemed to enjoy bantering with him.

[A] Kunstler: I agreed with Dave Dellinger that Judge Hoffman had a certain spunkiness to him. And speaking of him as a man, he did react with a certain amount of spark; and, accordingly, I tried to respond to his quips in ways that would top him if I could. I knew he enjoyed this type of intellectual badinage in the courtroom and considered himself a master at it, so I found it interesting to cross swords with him when it was convenient and feasible to do that. For example, at one time I was questioning a witness about the odor of a stink bomb--actually, it was a bit of Kleenex soaked with some butyric acid--in the Palmer House during the convention. As I recall, I asked the witness whether it smelled like Chanel No. 5. The judge turned to me and asked, "Is that what you use, Mr. Kunstler?" It was apparently an allusion to the homosexual allegations Mr. Foran was making about our table as a whole. I thought for a moment and said, "No, your Honor, I'm a Brut man." I had just received a bottle of Brut after-shave lotion from my wife. Well, that topped him. It was a good riposte and I enjoyed doing that. I did that sort of thing many times. Occasionally, the judge would come out on top, because he's a bright man and has a certain amount of wit and at times even a certain amount of charm.

[Q] Playboy: Rennie Davis wasn't talking about his charm when he said, "Judge Hoffman presides in every court in this country." Do you think there's any truth to that bit of hyperbole?

[A] Kunstler: That is similar to the slogan on one of the buttons Jules Feiffer created for the trial. Under a caricature of Judge Hoffman was the line, When you've seen one Judge, you've seen them all. While I don't believe Hoffman is the prototype of every Federal or state judge in the country, I recognize what Jules and Rennie were driving at. When the system is being attacked, even the most liberal judge feels that he must defend it--a system which, of course, creates and nurtures all the judges. So when a judge feels that the system is being seriously threatened, he sometimes takes drastic methods in the courtroom that violate either the Constitution or certain moral principles. Rennie's statement and Jules's slogan mean that under these circumstances, when the system feels beleaguered, the court--in the person of the judge--will respond in a manner divorced of all sensibility and of all the traditional maxims and shibboleths which supposedly regulate the administration of criminal law. In that sense, all judges are alike, even though they may have personalities far different from Judge Hoffman's and be far wiser and more humane men.

[Q] Playboy: Judge Hoffman was called a "fascist," a "racist" and a "pig," among other things, by Bobby Seale. Do you think another judge would have been more likely to allow such attacks on himself without taking punitive measures, as Hoffman finally did against Seale?

[A] Kunstler: Even in those specific instances, I don't think it inevitable that all other judges would have provoked the situation in which Seale found himself. So, in that sense, all judges are not necessarily alike. Another judge might have said, "All right, Mr. Seale, you may defend yourself." What happened in the Chicago trial was that Judge Hoffman constantly refused to permit Bobby to defend himself, because he was afraid that if he did, Bobby's techniques--because of his unfamiliarity with the law--would have put error into the record that would have eventually caused a reversal of the convictions of the defendants. I think, as I've said, that Judge Hoffman was predisposed to have the Government win this case, and allowing Bobby Seale to defend himself might have posed an obstacle to that goal. If, however, Judge Hoffman had allowed Bobby to defend himself, a lot of the disruptions would never have taken place and he would never have been put in the position of calling the judge the names he did. If you look at the record of the trial, whenever Bobby Seale used such words as "fascist," "racist." "pig," he always preceded them with the word "if." For instance, "If you don't let me defend myself, you are a fascist, racist, pig," and so on. I think it's very important to remember that Bobby wasn't using these epithets out of the blue but was specifically relating them to the refusal of the judge to allow him to defend himself. And that, I think, is a considerable distinction to keep in mind.

[Q] Playboy: Why was Bobby Seale so opposed to letting you defend him. Did he doubt your adequacy?

[A] Kunstler: His refusal to have anyone but Charles Garry as his counsel was based on a very strong matter of principle. Garry was the lawyer he knew and trusted and wanted, and he felt it was his right to have the counsel of his choice.

[Q] Playboy: Then why did you file a notice of appearance for Seale as his attorney?

[A] Kunstler: It was the only way I could get to see him before the trial began. Garry had asked me to see Bobby, who had been held incommunicado for seven or eight days while he was being taken by car from California to Chicago. It was necessary for someone to get to see Bobby. As a lawyer, and in response to Garry's request, I therefore filed a notice of appearance in order to talk to him. I saw him two days before the trial opened and then again when it began. Bobby made it very clear that he didn't want to go with any lawyer but Garry, and I thereupon informed the court that I was not Mr. Scale's lawyer. Bobby then made a motion to have himself declared his own attorney. The judge denied that motion and kept insisting throughout the trial--on the basis of the technicality that I had filed a notice of appearance--that I was Bobby's lawyer even though Bobby had, in fact, discharged me. And it was this insistence by the judge that led to Bobby Scale's persistent speaking out for his rights in court until he was bound and gagged.

[Q] Playboy: A number of radicals, particularly black militants, have criticized you and the defendants for going on with the trial after Seale had been bound and gagged.

[A] Kunstler: Well, I think if we had that to do over again, perhaps we would refuse to participate any further in the trial. In that sense, we may well have failed Bobby Seale. When he was bound and gagged in front of us--with the terrible symbolic implications of that act being perpetrated on a black man, when you recall the chains used on the slave ships that originally brought black men from the coast of Africa to the colonies--I think at that point, none of us should have gone ahead. The lawyers should have brooked contempt and the clients should have chanced the revocation of their bail and the imposition of contempt sentences. I think that was one of those crucial moments in the lives of all of us when we didn't live up to what history demanded of us. Ever since then, I've regretted the fact that I didn't say I wouldn't continue the trial until the gag was removed and the chains were taken off. And I believe the defendants feel that way, too. Our only justification is that Bobby insisted that we continue.

[Q] Playboy: What was your justification for continuing after Seale was removed from the trial?

[A] Kunstler: That was another situation. That decision by the judge wasn't as strong a provocation as the ultimate indignity of the gag and the chains. I still agree with the tactic we did take upon Bobby's removal from the case. We went ahead, because by doing that, we felt we would be helping Bobby by winning what we could in the trial. And we did win a very important point, because no conspiracy was proved among the seven defendants. That count was thrown out by the jury. So now it would be difficult to imagine Bobby Seale being tried for having engaged in a conspiracy with himself.

[Q] Playboy: But he can be tried on the charge for which five of the defendants were convicted--the intent to incite a riot.

[A] Kunstler: Again, I maintain that charge is an attempt lo punish the exercise of free speech. And I think we ought to go more fully into the whole question of free speech as it pertained to the Chicago trial. The trial, for one example, was replete with police informers, undercover agents who dressed as Yippies in Lincoln Park and elsewhere. There was also the use of paid FBI informers, some of whom came from the media, such as a San Diego television reporter and a New York photographer. The introduction of testimony by these undercover agents and informers, in this and other Government trials, is a direct assault on free speech.

[Q] Playboy: Do you believe that all testimony by undercover agents is an assault on free speech?

[A] Kunstler: The use of such testimony is not only an assault on free speech--the First Amendment; it's also an assault on the right of privacy--the Fourth Amendment. My position in that regard is justified on the face of those two sections of the Bill of Rights. If your exercise of free speech is later to be used against you by a man who hasn't identified himself initially as a police agent, that's a clear violation of your First Amendment rights. Obviously, it has a chilling effect on the expression of speech. And. furthermore, when an undercover agent is slipped in ostensibly to work with any organization--from the Yippies to the Elks--he's clearly invading the privacy of everyone else concerned. It was Oliver Wendell Holmes who called it a dirty business for any government to slip people into organizations and have them later report on those who have trusted them as real members of those organizations. In the Chicago trial, we had several people of this kind, and they were the most despicable of witnesses. First of all, in terms of the evidence they give, they cannot be trusted, because they're saying what their employer wants to hear. And there is no effective way to refute them. All you can say is that they are liars. But they're speaking with the authority of the Government, and few jurors will believe that spokesmen for the Government are liars.

[Q] Playboy: You say that no testimony by undercover agents should be admitted as evidence. But in Chicago, some of these witnesses simply testified as to what they heard during public speeches by the defendants. How does that involve invasion of privacy? And how does that affect the exercise of First Amendment rights?

[A] Kunstler: I agree that invasion of privacy is not involved when an undercover agent testifies as to what he heard in a public speech. But the First Amendment definitely is involved. To have undercover agents, unbeknownst to the speaker, attend a public meeting for the purpose of using what the speaker says against him in a possible trial violates every principle of free speech. And its effect will be to make people so inhibited that they won't exercise their rights to public expression, because they'll be afraid that sitting somewhere in the audience is someone who will later mount a witness stand and testify against them.

[Q] Playboy: If people are really serious about their beliefs, shouldn't they be willing to state them--and defend them--whatever the cost?

[A] Kunstler: The First Amendment is meant to protect the timid as well as the courageous. The whole point of the First Amendment is the right of everyone to express his ideas freely, whether in public or in private. It is not intended to force braver people to pay a higher cost for the exercise of that right. It applies to everyone.

[Q] Playboy: Is it your belief that First Amendment rights to free speech are absolute?

[A] Kunstler: They certainly are. No exercise of speech whatever--whether written, oral or in any other form--should be the source of a criminal prosecution.

[Q] Playboy: What of Justice Holmes's classic assertion that the First Amendment doesn't protect a man who shouts "Fire!" in a crowded theater?

[A] Kunstler: Let me clarify what I mean by free speech. I don't think anyone would criticize the criminal conviction of a man who shouted fire falsely in a crowded theater and caused a panic that either injured or killed people. The exercise of free speech, to me, means the communication of an idea with enough time left for a person to act rationally on that idea or not, as he sees fit. Let's take the case, for example, of a black militant standing on a soapbox and saying, "I think the police intend to break into our homes tonight and I want every man to go home and get his piece and go out to kill a policeman before they can attack us." His saying that is not in itself grounds for criminal prosecution. There is time for his listeners to say, "I don't know if he's right or if he's wrong. I'll make up my mind for myself. If I think he's wrong, I'm not going to get my gun." But there is time between the speech and any action that follows it. There is time for rational thinking as to whether or not to act on what has been said.

[Q] Playboy: How much time is sufficient time? Ten minutes? Thirty minutes? An hour?

[A] Kunstler: That would depend on the situation. It would be impossible to set an exact period of time in advance. But there is a difference between creating instantaneous panic--as in the fire-in-a-theater example--and communicating an idea that calls for action but gives the listener time to reflect. Suppose I were to tell you right now that the police commissioner of New York should be attacked. You have time to decide whether or not you want to act on what I'm telling you.

[Q] Playboy: If there is time for reflection, even if it's very brief, do you think it should be all right for one to urge the overthrow of the Government?

[A] Kunstler: It's the right of Government to protect itself against the possibility of such action. If a speaker says, "Get your guns and go down and take over city hall," the Government has the right to station police around city hall to protect it. But it doesn't have the right to get the speaker who made that remark, because then it's too easy for the Government to use that occasion to attack free speech. It does have the right, of course, to go after those who act on what the speaker says. If the Government fails to conquer those who take that action, you have a revolution. I don't think people like Jefferson and Patrick Henry and Samuel Adams and the others who were part of the American Revolution would have countenanced such a concept as the "clear and present danger" doctrine, which holds that if someone speaks in such a manner that there is a dear and present danger that criminal acts will result--including acts of sedition--then the man speaking is himself guilty of a criminal act. The founding fathers operated on the premise that all speech--even seditious speech--was free. Consider the type of speech in which they themselves engaged in those days. Patrick Henry said, "I know not what course others may take, but as for me, give me liberty or give me death." He was talking in very heavy terms, and it's that kind of speech that should be protected.

[Q] Playboy: Turning the term around, many civil libertarians feel that there is a clear and present danger to the exercise of free speech in the growing use by Government agents of wire tapping and bugging. What was your experience in that regard before and during the Chicago trial?

[A] Kunstler: I assume from all the strange occurrences connected with the case--and from the Government's consistency in stooping to conquer--that our phones were bugged, that letters to us were opened, that we were subjected to all kinds of secret surveillance in our offices in Chicago and New York, in our homes and elsewhere. At one point in the trial, for example, Thomas Foran asked one of our witnesses, Carl Oglesby, about a telephone conversation he had had with Rennie Davis. Len Weinglass got up and pointed out that the only way the Government could have known about that call was through illegal wire tapping. Very early in the trial, in fact, it became clear that the Government had wire-tapped the phones of at least five of the defendants. They had done this under the doctrine of Attorney General John Mitchell that the Government, on its own decision, without obtaining court permission and without having to disclose the transcripts to the defendants, has the right to eavesdrop on individuals and organizations when it feels that a matter of "national security" is involved.

[Q] Playboy: Do you think this Mitchell doctrine will be overturned by the higher courts?

[A] Kunstler: I'm not sure that it's going to be overturned, with the Supreme Court increasingly loaded with conservatives. This doctrine--that the Government has the right to wire-tap if it feels such action is essential to protect national security--can be a compelling theory for judges who don't want to see the system jeopardized in any way. So the Mitchell doctrine might well be sustained, even though it flies in the face of so much past constitutional law. In other words, I can no longer rely on waiting for the courts to come to their senses. I think we're in a period during which not only the Supreme Court but all Federal courts are going to be increasingly stampeded into positions which, years ago, all civil libertarians would have thought it impossible for them to take.

[Q] Playboy: Do you predict that there will be more political trials?

[A] Kunstler: All the signs are that there will be more political trials.

[Q] Playboy: Hasn't the Supreme Court, by its decision of March 31, 1970, made it exceedingly difficult, if not impossible, for the defense in any future political trial to act as you and your clients did in Chicago? This decision maintains that a trial judge can have disruptive defendants bound and gagged, jailed for contempt of court or even expelled from the courtroom if such measures are necessary to maintain order.

[A] Kunstler: I think you have to look closely at the circumstances of the case on which the Supreme Court ruled in making that decision. The defendant in question had been accused of a tavern holdup. He pleaded insanity and he not only interrupted the examination of prospective jurors but also tore up his file and threatened the judge with death. The judge ordered him removed from the courtroom, the trial went on without him and he was convicted and sentenced to 10 to 30 years in prison. When that defendant appealed his having been taken from the courtroom, the Seventh Circuit Court of Appeals in Chicago--which happens to be the same circuit court before which our appeal is pending now--ruled that you cannot remove a defendant from the courtroom under such circumstances. You have to keep him in the courtroom, but you can bind and gag him. Now, however, the Supreme Court has overruled that decision and said: "No, you don't have to keep him in the courtroom. You may bind and gag him or take him out of the courtroom altogether." But that decision was based on the actions of an irrational defendant who was not asserting a gross violation of constitutional rights, as Bobby Seale was: Scale was not allowed the lawyer of his choice. And the Panthers in New York who were being "unruly" in court reacted in that manner because they had been kept under horrendous bail bonds of $100,000 each, solely because they were Panthers.

[Q] Playboy: With regard to the trials of the Panthers in New York, as well as in New Haven, and the inclusion of Bobby Seale as one of the Chicago defendants, do you see this as part of a national conspiracy against the Panthers?

[A] Kunstler: I agree with Cecil Poole, a former United States Attorney for the Northern District of California, who stated publicly earlier this year that he believes there is a national conspiracy to destroy the Black Panther Party. I don't mean that every local police chief and every state attorney general sits down in Washington with the President and John Mitchell to work out a plan to destroy the Black Panthers. I think what generally happens is that a way of conduct is outlined by somebody--whether it be the President or the Attorney General--on how to deal with the Panthers. And the national Government helps this campaign along by having J. Edgar Hoover, for example, issue a statement calling the Panthers the most dangerous subversive organization in the United States. It doesn't require much imagination for a local police chief to read such a statement and realize that he has a national imprimatur for sending a squad to break into a Black Panther headquarters or a Black Panther's apartment and kill the occupants.

[Q] Playboy: You're referring to the Chicago police raid that resulted in the deaths of Panther leaders Fred Hampton and Mark Clark. A Federal grand-jury report on May 15 found that despite police claims of a fierce gun battle, only one shot might possibly have been attributed to the Panthers. The report also severely criticized not only the police action itself but also the subsequent police investigation of that action. Yet the grand jury didn't indict any of the 14 policemen who took part in the raid, nor was anyone who participated in the investigation indicted. All that happened was the demotion by the Chicago police superintendent of three top-ranking police officers who had been criticized in the grand-jury report. What's your reaction to this?

[A] Kunstler: First of all, the fact that two Panthers were killed but no police officer involved was punished--despite the Federal grand-jury report--proves that the Panthers are unable to be assured justice under the present system. I agree with The Washington Post: "With this kind of conduct by law-enforcement officials--it is not hard to see in it a deliberate plot to convict the surviving Panthers of attempted murder on false evidence--•how much more does a militant who thinks the American system is oppressive need to decide that he has no chance for justice and equality as long as that system exists?" Not only were two people murdered in Chicago, but seven of the surviving Panthers were kept in jail for five months without bail, when there was no evidence against them.

[A] To me, the significance of the failure of that Federal grand jury to indict anyone--the police involved in the raid, their superiors and State's Attorney Edward Hanrahan, who tried to cover up what had actually happened during the raid--is that the old English conception of "outlawry" has been re-established in this country. Under the old common law, from the 12th to the 14th Centuries, a man who had committed certain crimes, or who had been accused of committing them, was placed outside the law. He became an outlaw in the sense that you could do anything you wanted to him with impunity; you could cheat him, rob him, beat him, kill him. Obviously, the two Panthers who were killed were considered outlaws in this sense. They have been murdered, and none of the murderers will be punished.

[Q] Playboy: Even if what you say is true, wouldn't critics of the Panthers reply that they provoked police harassment by stockpiling weapons and threatening to use them against the police?

[A] Kunstler: If I were a black man living in the ghetto--particularly if I were a Black Panther--I would amass every bit of hardware I could get my hands on. For self-defense. That's a traditional American right, and you can go through homes all over the South and the Midwest and see all sorts of armaments. I've seen them in many white homes as well as black homes in all parts of the country. Caches of arms in black homes frighten the white community, because it's afraid the slaves are revolting again. There's nothing, in fact, that frightens whites more than black people manifesting the power to defend themselves. But black people do have the right to do that.

[Q] Playboy: Police, however, claim there have been many instances of armed Panther aggression.

[A] Kunstler: Those claims are myths. Like the "mysterious snipers" whom only police and National Guardsmen heard at Kent State and Jackson State. In those cases, the police claimed they were reacting to armed aggression, but nobody else saw or heard any gunfire from the students. There is no proof that the Panthers are marauders--except for the claims of the police. And I would say that the level of police credibility gets lower all the time--the Federal grand-jury report in Chicago being a case in point.

[Q] Playboy: Would you say that the Minute-men, who also collect caches of arms, are similarly exercising a traditional American right?

[A] Kunstler: The Minutemen have a quite different intent. Their purpose is to promulgate a totalitarian system of government, even though they may be hazy as to the details of that system. Accordingly, they collect arms with the goal of attacking people with political views different from their own. With the Minutemen, obtaining arms isn't a question of self-defense.

[Q] Playboy: You clearly identify yourself with the cause of the black man--and many have been your clients. Yet when Ralph Featherstone, the former SNCC leader, was blown up in a car in Maryland this past March, you said, "I lost a friend, a friend I had known for ten years. And because of the polarization in which we live, I could not even attend his funeral, because it was so separate." How long do you think this polarization of black and white will last?

[A] Kunstler: I think polarization of black and white will be the way of life for a long time to come. As to my reaction to having been excluded from Ralph Featherstone's funeral, I must say that I initially reacted in a very human way. I was terribly angered by not being permitted to attend the funeral of a man I had known so long and whose life had been inextricably tied in with that of my own family. But after some reflection, I recognized that I hadn't taken into consideration the facts of life in America today. The black people who ran that funeral were operating on the conviction that Ralph belonged to the black world and not to the white world.

[Q] Playboy: But do you really belong to the white world in that sense? You've certainly shown your identification with the black world by the cases you've taken and the statements you've made.

[A] Kunstler: Oh, yes, I belong to the white world. And it's not only on the basis of skin color but also on the basis of my background. It's impossible for any white man to comprehend fully what it's like to live every day as a black man in this country--to comprehend the rage, the lack of fulfillment, the destruction of potential. Black men may think of some whites as friends but not as black men. I guess I want desperately to be part of that black world for many reasons--some of which are probably deeply psychological. I will continue increasingly to resist, personally and as an attorney, much of what the white world represents and what it does--but as a white man.

[Q] Playboy: Your increasing resistance, as you put it, has led to a practice that consists almost entirely of political cases. How can you continue to support yourself and your family economically as this kind of attorney? It was reported, for instance, that you were getting only $100 a week as co-counsel for the defense in the Chicago trial.

[A] Kunstler: Yes, I was getting $100 a week; that was for expenses and it came from the Center for Constitutional Rights. But I'm not worried about my financial future. My standard of values has changed, particularly since the Chicago trial. I had already begun to have strong feelings that there was something terribly wrong with the existence of private property. Although I'm not an economist and (continued on page 170)Playboy Interview(continued from page 90) don't really have a good background in economics, the intensity of those feelings kept increasing. I now feel there ought to be a complete re-evaluation of our economic system. I can't get into specifics yet, because I haven't thought it through; but I do know that to translate this conviction into my own life is very difficult, because I'm a completely middle-class person. I have a house in Westchester; I have a lot of the good things in life. Yet I have an increasingly guilty feeling that my status in this world and my possessions probably came to me because other men lost their lives and liberty and were oppressed by the society that gave me these goodies.

[Q] Playboy: Haven't you earned whatever you have?

[A] Kunstler: Earn isn't the applicable word. Yes, I worked for what I have, but I was in a position to accumulate possessions because of what I was equipped with from the start. My father was a physician and my grandfather had been a merchant. Being white, they had been able to accumulate goods and status. And, accordingly, I was always well fed; I was always warm in the winter and cool in the summer; and because of my background, I could get a Columbia and Yale education. Very few black people in this society get a chance to start with all these advantages.

[Q] Playboy: If you feel so strongly about it, why don't you sell all your possessions and give the proceeds to the Panthers? And why don't you give your house in Westchester to young radicals, so that they can use it as a commune?

[A] Kunstler: Those are legitimate questions. My answer is that I guess I haven't got the nerve or the guts to do that at this time. Maybe that's what I ought to do--sell everything I have and give it to the movement. Maybe I just talk a good game. Maybe I'm too middle class, too much the product of this society, to do that. On the one hand, I complain that I have these goodies because of an unjust system; but on the other hand, I keep them. I expect I still have a lot to learn about myself and what I want to do with the rest of my life before I'm mature enough to do what you suggest. I'm very much into this process of self-examination, and that's why my standard of values continues to change.

[Q] Playboy: With that standard of values changing, what are your plans for the immediate future?

[A] Kunstler: I'm living now essentially on some speaking engagements, on a few old cases I have and on whatever cases I can send in to my firm in which I can participate. But I'm looking forward to the time when I can break out of even this situation. I would like to live communally, to practice law communally. The idea is that lawyers get food and lodging in exchange for handling all the legal business of a commune. This way of practicing law would produce a sense of solidarity and a way of measuring one's work and life by values other than money. There are young lawyers who are doing just that, but I'm not sure that at my age, I'd be able to do it emotionally. I know I'd like to do it. I'd like to be able to get just what I need to stay alive and do the work I want to do without having to be concerned with money as the medium of exchange for that work.

[Q] Playboy: Can you recall any specific event that began to change your conception of what you ought to be and do as a lawyer?

[A] Kunstler: There was a traumatic experience in 1961. I had been taking occasional cases for the American Civil Liberties Union, and in the course of one of them, I had just arrived at a bus terminal in Jackson, Mississippi. Eating a hamburger, I saw policemen arrest five black and white Freedom Riders attempting to integrate the lunch counter. Watching the total human commitment of those Freedom Riders gave me the sense that I would never be quite the same again. The sight of those five frightened young people taught me what I had never known before--that only by personal involvement can one justify his existence, either to himself or his fellows. I think it was on that day the die was cast. It was as if from June 16, 1961, to the Chicago trial, my feet were pushing in just one direction. I found what I was really looking for in life. I was changed from just being a legal tradesman, and I found a new currency that satisfied me completely. It may be no better than the currency of the five-dollar and ten-dollar bill, but it was a currency that paid oft in respect and in the knowledge that I was doing what I thought people ought to do with their lives.

[A] I've been very impressed, during a good part of the past three or four years of my life, with Father Daniel Berrigan, the Jesuit priest who was among those convicted for burning draft records in Catonsville, Maryland. He explained to me the concept of a worker-priest--the idea of a Catholic priest not being separated from other Catholics by being part of a hierarchy or having a church or being available only on certain days of the week. Instead, the worker-priest has a job; he works alongside people and utilizes his skills to assist those who work with him. I think that's what a lawyer should do, too. He should, first of all, be part of a movement and then employ his skills in relationship to that movement.

[A] He should not be separated by professionalism, by educational or economic barriers nor by status from the people with whom he works.

[Q] Playboy: Toward the end of the Chicago trial, just before you were sentenced for contempt by Judge Hoffman, you said: "I can only hope that my fate does not deter other lawyers throughout the country who, in the difficult days that lie ahead, will be asked to defend clients against a steadily increasing governmental encroachment upon their most fundamental liberties. If they are so deterred, then my punishment will have an effect of such terrifying consequences that I dread to contemplate the future domestic and foreign course of this country." Do you believe that your sentencing will deter such lawyers?

[A] Kunstler: No, I don't. And, as a matter of fact, I went on to say in the statement you just quoted: "However, I have the utmost faith that my beloved brethren at the bar, young and old alike, will not allow themselves to be frightened out of defending the poor, the persecuted, the radicals and the militant, the black people, the pacifists and the political pariahs of this, our common land."

[Q] Playboy: Even if there are enough lawyers of this type, can they be effective without basic changes in our legal processes--doing away with the adversary system, for example?

[A] Kunstler: I'm not opposed to the adversary system if the defendant has much the same resources as the state--in terms of investigative personnel, for instance. We're talking about criminal law now, and if you took away the adversary system, I don't know what you'd put in its place. The adversary system, you see, has one great attribute, in that as an adversary, the defense counsel, working with the defendant, can put up a tremendous fight. Admittedly, there is a great deal of unfairness because, as I've indicated, the Government--as the system works now--has greater resources than the defense. But with all its defects, the adversary system does give a defendant, in many instances, a fighting chance.

[Q] Playboy: Are you referring specifically to political cases?

[A] Kunstler: I find it hard to conceive of most routine criminal cases not also being political cases. I say that because so often the person accused of a crime is poor or black and poor. He has been subjected to an oppressive system, and the very crime of which he is accused is probably a reaction to that oppressive system. Obviously, if a man, black and poor, disembowels his child or brutally murders a robbery victim, the instinctive reaction is that he ought to be punished. But if the system has brutalized him, we have to take that into account. (continued on page 228)Playboy Interview(continued from page 170)

[Q] Playboy: Surely, you're not suggesting that he go unpunished.

[A] Kunstler: The answer ought not to be punishment in the sense that you just put him away in a cell. We need to create new institutions to treat someone like that. And we also have to work to make sure that no matter what he's done, he gets the best possible defense. A man accused of a crime, no matter how brutal, is supposed to be guaranteed a competent defense under our judicial system. But that doesn't happen. A white-collar executive who has acted in collusion with other white-collar executives to restrain trade will get a very good lawyer and is likely to be penalized by no more than a fine. But a poor man whose crime stems from being at the bottom of society--and from the deprivations inflicted on him by society--is not going to be able to afford as good a lawyer as the white-collar executive. He won't even be able to afford bail. And he won't have the resources to begin to have independent investigation done on his behalf. Such a defendant is railroaded, even though the system likes to maintain that everyone gets due process of law and has the full protection of the law.

But the system just doesn't work that way for the great masses of criminal defendants. A single hour in any magistrate's court or in any night court in the United States will teach anyone this elementary fact of American life. So, in that sense, I'm convinced that most criminal cases are political cases. And, on reflection, I must modify my previous statement about the merits of the adversary system, because these defendants don't have the quality of lawyers or the amount of resources necessary to put up a first-rate defense. That's why there have to be more lawyers who are willing to fight like hell for such a defendant while educating society at large about the social forces at the root of the defendant's crime.

[Q] Playboy: That sounds both optimistic and idealistic; yet at one point in the Chicago trial, you said to Judge Hoffman: "I am going to turn back to my seat with the realization that everything I have learned throughout my life has come to nought, that there is no meaning in this court and there is no law in this court." That's an extraordinarily strong statement for an attorney to make. It implies total disillusion with the legal system. During the same trial, on the other hand, you also said: "I think if this case does nothing else, perhaps it will bring into focus that again we are in that moment of history when a courtroom becomes the proving ground of whether we do live free or whether we do die free." Which of the two do you really believe? Do you still think our legal system is viable, that justice can prevail?

[A] Kunstler: That first statement of mine occurred during an extremely emotional situation in the courtroom, when I was reacting to the arbitrariness of the court in not allowing Ralph Abernathy to take the stand for the defense. The second statement came from my summation, during which I was trying to persuade the jury to acquit the defendants or at least become a hung jury. The purpose of each statement was different. One was a spontaneous reaction; the other was a calculated attempt to win a jury over to a point of view. I don't think there is a severe contradiction between them. I do think the courts have a place in the struggle in which we're engaged. If they're going to be used as instruments of the system, then the people who are being persecuted for their political beliefs can and must use them as their own instruments--not only to protect themselves but also to expound their political beliefs in every way they can. And in that kind of situation, I believe the lawyer has a definite place in the struggle.

[Q] Playboy: Can you conceive of the courts, by your criteria, becoming true instruments of justice?

[A] Kunstler: There's a chance. I think I must be an optimist, and I would guess the Chicago defendants must be optimists, too, because apparently we do believe in the possibility of reclaiming American life and society and of making justice possible. I don't think we'll ever reach the millennium, but I think there's a chance of our achieving a more just and free society. I don't know how just and how free; but if I thought there were no possibility, I'd be fighting a battle of no significance. So I would say that I'm restrainedly optimistic as to what the future will hold.

[Q] Playboy: You've said you were radicalized by the Chicago trial into believing that much more action outside the courts is necessary. What do you mean by your own radicalization and what, precisely, are you advocating that people do outside the courts?

[A] Kunstler: I was, indeed, enormously radicalized by the Chicago trial. But the process of my radicalization had started before then. I think it began for me just after the 1968 Democratic Convention, when a number of Black Panthers were beaten up in the corridors of a courthouse in Brooklyn by a group of off-duty policemen. I saw nothing done about it--even though the policemen were readily identifiable, even though the badge numbers of those who wore them were phoned in, even though there had been uniformed policemen present who could recognize the off-duty cops engaged in the attack. It was then that I realized more forcefully than ever that black men in general--and Black Panthers in particular--could really expect nothing from the courts in the way of justice. When I went out to the Chicago trial, I was already well on the way to my present conviction that it is the role of the American left to resist rather than merely protest: to resist illegitimate authority, to resist injustice in the courts, to resist the draft, to resist any payment of taxes to support the war in Vietnam, to resist the domestic and foreign policies of a Government that crushes people on every level, to resist the oppression of women, to resist all the things in this society that tend to degrade and destroy people.

[Q] Playboy: In one of your many campus speeches in recent months, you urged students to "resist illegitimate authority and don't stop until things have changed"; but then you added: "If Government can't solve all of today's pressing problems, then perhaps it's time for the Government to get out of the way and let someone else do it." What did you mean?

[A] Kunstler: I meant that if resistance didn't make Government respond to the urgent needs of the people, then it would be necessary for the movement--that is, all those who feel much the way I feel--to move from resistance to revolution. Now, my hope is that we will be able to bring about fundamental changes in this society by resistance rather than by revolution. But I would remind you that in his most recent book, Points of Rebellion, William Douglas. Justice of the Supreme Court, makes the point: "We must realize that today's establishment is the new George III. Whether it will continue to adhere to its tactics, we do not know. If it does, the redress, honored in tradition, is also revolution."

[Q] Playboy: Would you be more specific about the nature of the resistance you consider necessary during this period?

[A] Kunstler: Well, my definition of resistance is people on a local level taking matters into their own hands, but not essentially in a violent way. For example, if, after a certain amount of protest by students and faculty, a college refuses to end its R.O.T.C. program and sustains an element of the Armed Forces as part of its scene, the students can take over that college by occupying its buildings. That's not merely protest--marching around the administration buildings with signs or writing letters to Congressmen. Taking over the buildings is a physical action; that's resistance. Another form resistance could take would be the burning down of a particular college building at a safe time; that is, when no one is in it, when no danger to human life is involved.

[Q] Playboy: You condone arson?

[A] Kunstler: Yes, if a point has been reached in a given situation where the mechanisms of society are not responding to serious grievances. It depends on the situation.

[Q] Playboy: Apart from the morality of destroying the property of others, how about the consequences? The money for a college building might well have come from wealthy alumni and the property loss might well be covered by insurance companies; but what of other kinds of arson in the name of resistance? If a bank is burned down, the uninsured savings and investments of thousands of people would be wiped out. And if the fire spreads to small stores, the entire life's work of the owners of those stores is destroyed. Do you condone this kind of arson?

[A] Kunstler: Admittedly, there is a danger that this could happen, and my hope is that we can get the system to respond without having to engage in this kind of resistance. But when you talk about arson, you must remember that Hiroshima was a pretty good example of arson, and that was an act of the United States Government. But I don't want to see buildings burned down. What I'm saying is that burning, in a particular situation, may become a way to attain a legitimate political goal when all other recourse is closed. And if that happens, even if precautions are taken, there is the possibility that individuals as well as institutions will suffer severe property damage. There are times, however, when concern about property damage is over-ridden by the need to resist governmental oppression. I emphasize again that all other steps should be exhausted first. That's what happened before the American Revolution; and that revolution--even though there was a great deal of property damage--is honored in our textbooks.

[Q] Playboy: You use the American Revolution as an analogy, but isn't the system you are now resisting the result of that revolution? Of what use was resistance then if it led to what you oppose now?

[A] Kunstler: Well, it was called a revolution, but what happened then was the transfer of power from the crown to the colonists. It wasn't intended nor did it lead to a more equitable distribution of power here. One group of haves took over from another in what was essentially a perpetuation of early capitalism in America. We really haven't had a fundamental revolution in this country. I used that analogy from history only to show that this country was founded in resistance. For America to become what it has professed to be--but has never actually become--will now take more acts of resistance.

[Q] Playboy: As an attorney affiliated with the American Civil Liberties Union, how can you advocate resistance that inevitably transgresses the rights of those who don't agree with the resisters?

[A] Kunstler: I don't know whether I would use the term the right to transgress the rights of others, but every time there's a labor strike, for example, the strikers are in one way or another making life inconvenient for other people. Remember the postal strike earlier this year? Many people not only claimed that it was an illegal strike but also maintained that it was interfering with their right to receive their mail and to conduct their businesses. That strike probably caused a lot of damage to a lot of people. But that happens whenever you have the forceful assertion of rights by one group. Inevitably, that assertion affects the rights of others. I think that kind of conflict is part of living in what is--with all its grievous faults--a democratic system. The exercise of some rights will, for a certain time, have a drastic effect on the rights of others. For example, the Government wants to fight a war in Vietnam. It interferes, therefore, with the rights of its citizens by forcing young men to put their lives in jeopardy by becoming part of the Armed Forces, to go into exile or to go underground. This is certainly an interference with individual rights. It's a fact of life that the assertion of one set of rights interferes with others.

[Q] Playboy: Is dissatisfaction with the present system as widespread as you think? Do you believe most of the young would still be willing to think and act in terms of resistance if the war in Vietnam suddenly ended?

[A] Kunstler: I certainly hope so. I would hate to think that the war in Vietnam--which is, after all, a reflection of many of the underlying pernicious forces in this society--could be the only catalyst for resistance. There is so much that goes on in this country that should be resisted--the oppression of women, for example, which I believe to be a crucial issue. And that, by the way, is another example of resistance that has already begun. It has been women, in the main, who--often by direct confrontation--have forced legislatures around the country to revamp and even repeal abortion laws. But there is so much more that remains to be resisted: the oppression of black people, the existence of poverty, the unequal distribution of wealth, the destruction of natural resources, the way Indians and Mexican Americans are treated, the unfairness of the courts. These are among the injustices that call for resistance, and I think those calls will be answered. I think there is a large reservoir of people, particularly among the young, who will turn the Seventies into a decade of movement from protest to resistance. They will have no choice, because I firmly believe that neither Government nor other elements of the power structure ever yield to anything but fear.

[Q] Playboy: Isn't that kind of resistance likely to cause a massive counterreaction that will lead to such repression that no resistance will be possible?

[A] Kunstler: That's a chance you have to take. The argument you've just posed is always advanced by people who fear that mass resistance to injustice will produce storm troopers and the end of any progress whatsoever. The same argument could have been--and was--made during the Weimar Republic: Why oppose the brownshirts so strenuously, when the more forcefully you resist them, the more likely you are to put them in power? Well, as it happened, the brownshirts were not sufficiently resisted and, as a result, they did get into power.

[Q] Playboy: In view of the fact that they had more guns than the opposition, could the brownshirts have been resisted with enough force to prevent them from getting into power?

[A] Kunstler: They certainly could have been, particularly if large-scale resistance had started earlier. The basic difficulty in that situation wasn't that the Nazis had more guns but that the opposition was so splintered--among the Communists, the Socialists and the other radical groups--that the brownshirts were given enough time to take power. If there had been organized, large-scale resistance, the brownshirts could have been beaten off the streets instead of being able to seize the streets and beat up Jews as they moved toward a take-over. The options during the Weimar Republic were the same as the options are now: to allow particular evils to continue for fear that opposing them will lead to larger evils, or to go ahead and attack those evils and take your chances with the future.

[Q] Playboy: With regard to the future, Dave Dellinger said just before being sentenced by Judge Hoffman: "Our movement is not very strong today. It is not united, it is not well organized. It is very confused and makes a lot of mistakes, but there is the beginning of an awakening in this country which has been going on for at least the past 15 years, and it is an awakening that will not be denied. Tactics will change, people will err, people will die in the streets and in prison, but I do not believe that this movement can be denied, because however falsely applied the American ideal was from the beginning when it excluded black people and Indians and people without property, nonetheless there was a dream of justice and equality and freedom and brotherhood, and I think that dream is much closer to fulfillment today than it has been at any time in the history of this country." Doesn't that seem to you an overly optimistic assessment of the present condition of the movement, when, as you say, so much remains to be done?

[A] Kunstler: No, I think Dave is right. Even though we are in as severe a period of repression as any I've experienced in my life, this is, nonetheless, a time characterized by dissent more vocal than any other in American history. And it's a period in which there is more and more coming together of people who are the butt of repression. And even though there are no formal alliances among the political dissidents in the United States, there is a growing feeling of comradeship and of working together. So, on the one hand, you have massive repression; but on the other, you have the beginnings of massive resistance.

[Q] Playboy: Do you find the many splits now so apparent within what used to be called the New Left--the direction in which the Weathermen are going, for example--ominous?

[A] Kunstler: No, I think these are only tactical differences. From my own experience, and I'm in contact with many groups, I don't really see an enormous ideological split. There are ideological differences that are debated endlessly, consuming a great deal of time. Perhaps they have an importance I don't truly understand. But I'm convinced, on the basis of my own reception and the reception the Chicago defendants receive on college campuses and elsewhere, that there is much more unity of spirit on the left than the Government believes. The trial of Bobby Scale and other Panthers in New Haven, the trial of the Panthers in New York and the Chicago trial are among the focal incidents that are galvanizing people. I think large numbers of people are beginning to realize that if we truly stand together, we can bring about a resistance to illegitimate authority.

[Q] Playboy: Nonviolent resistance?

[A] Kunstler: Essentially, yes. Violent in the sense that buildings are taken over, but that's only property. So far, I don't think the movement has been responsible for anything that can seriously be called violence. Yes, some plate-glass windows have been broken; a few cars have been overturned; there have been some bombings of unoccupied buildings; and even a branch bank in Santa Barbara has been burned.

[Q] Playboy: You don't consider those actions violent?

[A] Kunstler: What I've been describing have been isolated, fragmented acts. And if you put them all together, they're so picayune, compared with one B-52 raid over South Vietnam in terms of real violence to human beings, that it's offensive to apply the term violence to what some of the more militant factions in the movement have done.

[Q] Playboy: Then you're saying that violence is simply a matter of degree, that it's less immoral to burn a bank than a village hut.

[A] Kunstler: I'm not against violence on a philosophical level nor on an emotional or a moral basis. I don't accept the premise that all violence under all circumstances is inherently bad and thereby invariably contaminates whatever is achieved by it. Good can come out of violence. Slavery was ended by the violence of the Civil War. The Nazis were defeated by violence, and once they had come to power, I don't know of any other way they could have been defeated. There were, as you know, attempts to assassinate Hitler; and if one of those attempts had succeeded, I think good would have come of that. So I don't believe all violence to be inherently bad, and I don't rule out violent protest if all other means of resistance have failed.

[Q] Playboy: Violence directed at whom?

[A] Kunstler: If it comes to that, the question will be answered by local groups responding to local situations. But 1 emphasize once more that I believe that in terms of the situation now, there are other means that can be tried. I don't condemn those who have engaged in burning and bombing, because their activities are the result of frustration and bitterness and the refusal of Government to respond significantly to just demands. But I do feel that the Weathermen's approach, in particular, is not tactically sound now. My differences with them haven't been on ideological grounds--because I share a lot of their feelings about the type of world they wish for. But I do differ with them on tactical grounds. I believe that the type of action epitomized by the Weathermen is of a kamikaze nature that can only result in the destruction of our people. As in the basement of that town house in Greenwich Village.

[Q] Playboy: Would you defend in court the people who survived that bombing in the Village? And if so, on what grounds?

[A] Kunstler: Yes, I would defend them; but before deciding on the grounds, I would want to talk to them about the issues they would want to raise in court. They might well want to state the political reasons for what they were doing and planning, as the Catonsville Nine and the Milwaukee 14 chose to do when they were brought to trial for destruction of property after burning draft-board records.

[Q] Playboy: Are you equating what the Catonsville Nine and the Milwaukee 14 did with the explicitly violent objectives of the Weathermen? The first two groups weren't engaged in bombing and don't believe in using guns or any other weapons.

[A] Kunstler: I'm saying that if people have the same goals I have, I'll try to do what I can for them. As I said. I disagree with the tactics of the Weathermen, but I think they should be protected. If I were asked to give shelter to those now in flight from the authorities, I might conceivably do that, though it could be in violation of the law.

[Q] Playboy: You say you disagree with the Weathermen's tactics, but in speeches to young people since the Chicago trial, your own rhetoric has increasingly become the rhetoric of violence. You've said, for instance: "If you believe that such matters as the war, the shooting of Black Panthers and babies starving in Appalachia are wrong, then you must be ready to go to the wall if peaceful resistance fails. If they mean anything, if they are life-and-death issues, then you must be prepared to offer life or death and hope it will not be necessary. You may have to take the final step. You may ultimately be bathed in blood. So will others. If the people who really control power do not feel you will really do these things, then the whole effort for change will evanesce. If they feel you will do it, they will act." They will act, but how?

[A] Kunstler: It's my belief that if there are large enough numbers of resisters who make their seriousness of purpose felt, the Government will respond affirmatively, rather than take the risk of precipitating large-scale violence in the streets. Even knowing that they have the superior forces, infinitely more armaments, I don't think those in power would want the turmoil that would come if large numbers of people took the final step. And I wasn't advocating that the final step be taken now but, rather, that the Government be told in unmistakable terms that there are people who are willing to go farther if peaceful resistance fails. I said, "You must be prepared to offer life or death and hope it will not be necessary." That's my hope, too.

[Q] Playboy: Do you think you convey that hope while raising a clenched fist as you say these things?

[A] Kunstler: It's not easy for me to raise a clenched fist. It's not natural for me. It's a gesture I didn't use until I became involved in the Chicago trial. But the clenched fist is a gesture of resistance. And, as I have said to audiences, "We have clenched the fist with mass resistance, and we can only open it in two ways: We can open it in brotherhood, if the system has the capability of responding to immediate human ends, or we can open it to curl the index finger around a trigger. These are the choices. In time, the system will have to make its choice. And when it makes its choice, it makes ours."

[Q] Playboy: Even if you don't curl your finger around a trigger, there is a distinct possibility that you will have to spend some time in prison anyway--for contempt of court. If that sentence isn't overturned, what will you do in prison? And when you're released, will you, as an ex-felon, be able to practice law?

[A] Kunstler: I would hate jail. I never knew how good it felt to be free until the moment I found out I wasn't going to have to go to jail right away. It and when I have to go, of course, I'll deeply miss my family and all the other people I like to be with. But I would try to do something meaningful in prison. I'd write, read, think. As for after prison--if I do have to serve a sentence--it's far from certain that I wouldn't be able to practice law. I've been convicted not of a felony but of what is classified as an offense. If there were an attempt to take away my license to practice, I'd fight like hell not to lose it. I'll tell you that. But even if that came to be, I have other skills. I can write; I can lecture. Or maybe I'd just drive a truck for a commune. In any case, I would try to stay useful. There'll be a lot of work to be done.

[Q] Playboy: For the revolution?

[A] Kunstler: I continue to believe in the possibility that we can bring about real change without revolution. That is, without violent revolution. With unity, guts, stamina, exhortation, constant stimulus to get people moving, we--students, especially--can turn history down a new path. And if we're successful with mass resistance, violent revolution need not come. That's why I keep speaking for unity, and that's why I feel it so necessary to inform as many people as possible of what the basic issues are, of what the basic choices are. The sole reason I'm giving this interview to Playboy is because it reaches a large audience, many of whom--perhaps most of whom--have not been exposed to the type of movement politics we've been discussing. I want to win those people over to at least an understanding of what not only my life is all about but also the lives of the Weathermen, the Black Panthers, the women's liberation movement, the Indians who occupied Alcatraz, the Appalachian poor, the ghetto residents--white and black alike--and all the other oppressed people of this country.

[Q] Playboy: You say that's the sole reason you agreed to this interview. Why?

[A] Kunstler: Because my basic attitude toward Playboy, my deepest feelings are that the magazine symbolizes so much that is utterly deplorable in America today. Not only does it serve as a slick showcase for the crass and destructive materialism that has transformed the early American dream of an egalitarian society into the cruelest of illusions, but it demeans and degrades women in a manner as inequitable as it is gross. Moreover, it parades what it terms a new and revolutionary sexual philosophy as some sort of legitimate sociological concept, while hypocritically devoting itself to the maintenance of a gigantic commercial empire built on the compelling nature of human love and desire. I have come to the conclusion, however, that if a new social order is ever to be constructed in this country, it's vitally important for those of us who believe in the necessity of such an achievement and who may have, from time to time, access to the mass media, to take advantage of such transitory contact in order to reach an audience that is usually denied us.

To put it another way, it might be tragically irresponsible for anyone who seeks a revolutionary transformation of the goals and values of this society to refuse to utilize every means of persuading others of the necessity of such a result. These considerations, it seems to me, more than outweigh the serious emotional and political disabilities of Playboy, the television networks and the other mass media. Accordingly, albeit with some real misgivings, I have consented to being publicly interrogated by Playboy. It is my heartfelt hope that this interview will serve, even in a minuscule way, to bring about the end or drastic alteration of a way of life symbolized by Playboy, a way of life achieved by the incessant, unrelenting and conscienceless oppression of millions of men, women and children, both here and abroad. If this is possible, then I think that chance alone is well worth any momentary assault on my psyche and sensibilities.

[Q] Playboy: Rather than reply to your allegation that Playboy is somehow involved in and symbolic of human oppression--which Playboy despises and opposes as vigorously as you do--we would prefer to let reasonable readers of this magazine draw their own conclusions about the validity of your indictment. And we thank you for taking the time to talk with us.