Michael Steinberg - The Case of the Cussing Canoeist

 

In 1997, I was appointed legal director of the ACLU of Michigan. [audience cheers] 

 

It was the honor of my life. But I had considerable anxiety about whether I was up to the task. You see, I viewed the ACLU as being the organization responsible for keeping our country true to its stated values of freedom and equality and democracy. It was a tall order, and there's a lot of pressure. Plus, it seemed like the ACLU legal directors of other state affiliates were all graduates of Harvard or Yale Law School, and many had already argued cases in the US Supreme Court. Me, I had been a high school teacher and a soccer and basketball coach, and I did a little political organizing before I went to a state law school and started a very small private practice. I had no idea how it ever matched the accomplishments of my colleagues. 

 

My worst fear was I would do something stupid and they'd laugh at that imposter in Michigan. But being the coach that I was, I decided to give myself a pep talk, and I said, “Steinberg, you may not have the fancy credentials of your colleagues, but there's nobody, nobody who works hard than you or cares more about social justice than you. And sure, you're going to be working around the clock for little pay and you're not going to have any fun. [audience laughter] But this is your opportunity of a lifetime to make a difference. So, stop whining and get in there and kick some civil liberties butt.” [audience laughter] And I said, “Okay, coach, put me in. I'm ready.” [audience laughter] 

 

Everything went great for the first year. I was defending affirmative action at the University of Michigan in a case that eventually went to the US Supreme Court. I was fighting for racial justice, and women's rights, and LGBT rights and immigrant rights. Everything was going as planned until in the summer of 1998, I get a call from this guy who says his name is Timothy Boomer. He wants our help, because he was charged with a crime for swearing. 

 

I rolled my eyes and I said, “This is not why I came to the ACLU.” But he insisted on telling the story, and he was canoeing down a river in northern Michigan when his canoe hit a rock. And he capsized. His friends were laughing at him, and he was playfully splashing them and he admitted to using some choice words. And then, out of the blue, another canoe comes paddling up, and it's a cop. He issues him a ticket for swearing in front of women and children. [audience laughter] 

 

At this point, I thought the call was a practical joke. It wouldn't have been the first time that friends had called up and pretending like they wanted my help. [audience laughter] But he seemed serious. So, I said, “Okay, Mr. Boomer, somebody will be back in touch with you.” When I hung up, I did some quick research. And sure enough, on the book, still in Michigan was a law from the 1890s that made it a misdemeanor punishable by up to 90 days in jail for using improper, indecent or immoral language in the presence of women or children. 

 

I called Boomer back and I said, “This is outrageous. We're going to make these criminal charges go away.” I tell myself, we're going to make them go away quickly, so I can get back to my real cases. I call up the prosecutor and I said, “What are you doing, charging this man with this ancient law that's clearly unconstitutional? I'm with the ACLU, and we'd like you to dismiss the charge.” He said, “The ACLU? I've never gotten a call from the ACLU before. [audience laughter] I'm sorry, we can't dismiss the charges, but we'll make Boomer a deal. All he has to do is plead guilty and not get in trouble again for a year, and we'll have the judge dismiss the case.” 

 

So, I call Boomer up. And mind you, when I call potential clients, I'm usually urging them to stand on their principles and fight the power. But this was a different case. I say, “Mr. Boomer, this sounds like a pretty good deal. You can be done with this fiasco and you won't run the risk of having a criminal conviction following you around for the rest of your life.” Boomer pauses for a minute, and he decided to stand on his principles and he said, “Let's fight this thing.” And I'm stuck representing him. [audience laughter] 

 

So, I call up a volunteer lawyer, one of the best criminal defense attorneys in the state. And luckily, he readily agreed to help, because I thought he would take care of most of the work and I could focus on my important cases and maybe the case would go away quietly. But then, the media got wind of the case, and it began to blow up. I had been used to doing interviews with local press about ACLU cases. But this case instantly became a national sensation. Mainly, I think, because they dubbed Timothy Boomer the “Cussing Canoeist.” [audience laughter]

 

So, I'm working away one day and I get a call from MSNBC. They want me to come down to the studio in Detroit late that afternoon to do a live show about the Cussing Canoeist case. And I said, “I'm sorry, I took the Vanpool to work today. If I come down to do the interview, I won't be able to get home.” And they said, “Oh, don't worry.” They sent a stretch limousine to pick me up. [audience laughter] I had never been in a limousine before. 

 

They whisked me down to the studio, they put powder on my face, so it wouldn't shine, they mic me up, the bright lights come, and all of a sudden, I'm on national television. I'm nervous at first, but I begin to hit my stride. I talk about how un-American it is to have speech police lurking in the bushes, and how dangerous it is to have the state criminalize a whole range of speech that's commonly used by most Americans. 

 

The interview went well, but the press kept calling. National Public Radio, The New York Times. My mom called me and she said, “Hey, I heard you talking about the Cussing Canoeist case on the BBC.” [audience laughter] But then, I started getting calls from other state ACLU legal directors. And they said, “What are you doing in Michigan?” [audience laughter] I'm getting calls from people in my state, they say that want me to represent them on swearing cases. “And who the hell is the Cussing Canoeist?” It was my worst nightmare come true. I felt like I was an embarrassment to the ACLU, to my colleagues, but I didn't have much choice because we had already committed to Boomer and we had an ethical duty to continue. 

 

And besides, the media storm began to subside, until [chuckles] I get a call from an attorney from Court TV. And he says, “Court TV wants to cover the case from gavel to gavel.” And he just wanted to make sure that I didn't have an objection to his motion to bring TV cameras into the courtroom. And I thought, of course, I have an objection. This case is ruining my life. [audience laughter] But I told him the ACLU, as an organization that treasures freedom of the press and transparency, does not have an objection. [audience laughter] 

 

And so, on June 10th, 1999, with considerable dread, I walked with Timothy Boomer and our volunteer attorney into the so-called courtroom for the trial of the Cussing Canoeist. [audience laughter] Despite thinking that this is the most absurd case in the history of the country, I had to project an air of seriousness, because the judge and the jury was taking the case seriously, and the fate of our clients lay in their hands. 

 

The trial started out great until the prosecutor decided to call his key witness. It was a man who was canoeing with his wife and child near Boomer on that fateful day. And eventually, he asked the witness, “Okay, sir, what did Mr. Boomer say when he fell out of the canoe?” And the man who had been very shy up to that point looked up at the judge and he said, “Your Honor, I can't say those words. I'm a Christian man.” And the judge looked back at him and said, “It's going to be okay, sir. I'm sorry, but you don't have any choice. You're under oath and you must tell us what Mr. Boomer said when he fell out of the canoe.” 

 

So, this supposed shy man, without being prompted, decides to stand up in the witness stand. [audience laughter] He starts screaming at the top of his lungs, “Fuck, fuck, fuck, fuck, fuck.” [audience laughter] And the prosecutor says, “Okay, sir. Okay, sir, you can sit down now.” [audience laughter] “How many times did Mr. Boomer use that word?” “50 to 75 times.” [audience laughter] 

 

At this point, I couldn't take it any longer. [audience laughter] I was biting my hand as hard as I could to prevent me from bursting out in laughter. And Court TV was eating it up. [audience laughter] Every commercial on Court TV for the next week was a replay of this man standing up in the witness stand and screaming, bleep, bleep, bleep, bleep, bleep. [audience laughter] 

 

Unfortunately, based on that testimony, it didn't take long for the jury to find Boomer guilty of using improper language. The judge actually sentenced him to four days in jail. We appealed, and the Michigan Court of Appeals, in an unanimous published decision, struck down the improper language law as unconstitutional and reversed the conviction in a case called People of the State of Michigan v. Boomer. [audience laughter] 

 

Rather than being the laughingstock of the ACLU, we actually started a trend and other state ACLU legal directors started getting involved in these cases until prosecutors stopped abusing their power and charging people with a crime for swearing. In the end, Mr. Boomer was thrilled that he decided to stand on his principles and didn't plead guilty to an unconstitutional law. And me, I learned that not only can you defend constitutional rights, but you can have a fucking good time doing it. [audience laughter]