First Amendment expert to lead Furman

Rod Smolla in December 2009.
Rod Smolla in December 2009. The Greenville News

GREENVILLE - He defended a Ku Klux Klansman's right to burn a cross, and the U.S. Supreme Court struck down a Virginia law against cross burning.

He won a judgment against the publisher of a book that a killer used as a how-to manual to murder three people. The case was made into a TV movie.

He sued The New York Times on behalf of a female lobbyist over a story she believed falsely portrayed her as being romantically involved with Sen. John McCain. The Times ran a statement clearing her name.

Rod Smolla, 56, has earned a national reputation as one of the foremost legal minds in the field of free speech rights - as well as in the limits of the free press.

But Smolla, a law school dean as well as a barrister who will become Furman University's next president July 1, sees his highest calling as that of an educator. The two professions, in some ways, are not so different, he said.

"I'm giving up my life as a lawyer in the courtroom, but I'm not giving up my life as an advocate," he said after being named the school's 11th president last week after a national search. "And I'll be an advocate for Furman, an advocate for this region and an advocate for higher education."

Even while leading the university's administration, he plans to do some teaching - probably on constitutional law or the First Amendment.

"I happen to be in the camp who thinks it's important, first because I love it," he said, "and second because of the symbolic value of saying that we're teachers first and education is the thing that we believe in."

His record would indicate that he will be an independent-minded leader who will guide Furman toward his vision of becoming one of the nation's great "centers of academic freedom and engines of upward mobility and diversity" while raising the university's national profile.

"Rod Smolla came on campus and took the place by storm," said Richard Cullen, chairman of Furman's presidential search committee and a former Virginia state attorney general. "It was fun to watch."


Smolla's love for academia goes back to his youth, growing up in the Chicago area.

He describes himself as a "small, fast" football player in high school, and it was his athletic ability that helped him get his foot in the doors of the Ivy League.

He was being recruited by several liberal arts colleges and service academies and was close to accepting a scholarship offer from the Coast Guard Academy.

Then he got a call from Yale.

"I'll never forget the conversation between my mom and my dad - who didn't know I was listening in," Smolla said.

"Rod's got something to tell you," he heard his mother say.

"What is it?" his dad answered.

"Well, he got into Yale," she said.

"Well, did he get a full scholarship?" he asked.

No, he didn't. It wasn't as good as the Coast Guard offer financially, his mother said.

His father asked, "Where does he want to go?"

"He wants to go to Yale," his mother said.

"Well, that's where he has to go," Smolla recalled his dad saying. "We'll figure out a way to do it. How many times do you have a chance to send a kid to Yale?"

He did go to Yale and became captain of the football team, earning his bachelor's degree in 1975.

That's a story, Smolla said, that plays out hundreds of times across the country, and one that motivates him to try to open the doors to students who can't afford the quality of education they deserve.


After Yale, Smolla went to Duke University School of Law, where he finished first in his class.

Then he went to work as a law clerk in the 5th U.S. Circuit Court of Appeals in New Orleans and followed that with a stint practicing law in Chicago before starting his career in academia.

That took him eventually to the William and Mary Marshall-Wyche School of Law, where he was director of the Institute of Bill of Rights Law, a position he held from 1988 to 1996, then becoming dean of the University of Richmond and finally moving to his current position as dean at Washington and Lee in 2007.

Throughout his career as a law school administrator, Smolla continued his work in the courtroom, taking on cases that earned him national standing.

One of those was Virginia v. Black, in which a KKK leader named Barry Elton Black had been convicted under Virginia law of burning a 30-foot cross on a farm in Carroll County, Va.

Smolla, who was on a committee of the American Civil Liberties Union at the time, agreed to handle any appeals.

The case went all the way to the U.S. Supreme Court.

David Baugh, the attorney who represented Black in the initial case, said Smolla's firm belief that the Constitution must be applied equally to everyone is what makes Smolla a "hero" and protector of American freedom."

"It's easy to defend your friends," he said. "But a hero is a man who can defend his enemies."

Smolla appeared before the Supreme Court on Dec. 11, 2002, and argued successfully that Virginia's law against cross burning was unconstitutional, saying symbols can change in meaning over time and can't be outlawed as such. He got some of the ideas for his arguments from his students, according to the Richmond School of Law's Web site.

"He views the principles of the Constitution as a never-ending work in progress," Baugh said.

Smolla took criticism from some First Amendment advocates for taking the case against the publisher of a book called "Hit Man," according to David Hudson, a scholar with the Freedom Forum's First Amendment Center in Nashville.

The case was filed by the families of three victims of a murder that courtroom testimony showed was planned by a killer who used the book's instructions on how to kill without getting caught.

Smolla - whose role was played by Timothy Hutton in the 2000 movie about the case on the FX cable network - argued that freedom of the press couldn't be extended to a publisher who targeted a how-to-kill book at killers.

"There was a little bit of criticism in the First Amendment community," about Smolla's effort to limit freedom of the press in this case, Hudson said. "But I thought he explained it pretty well."

Hudson thinks highly enough of Smolla that he included him in an encyclopedia of the First Amendment that he edited.

"He is a seminal First Amendment expert, a scholar of the highest degree," Hudson said.


Not only has Smolla fought the courtroom battles, but he also has written about them as well - his and those of others that he sees as important.

The movie on the "Hit Man" case was based on the book Smolla wrote about it. He also wrote a book about the 1988 Jerry Falwell v. Larry Flynt case, in which the U.S. Supreme Court ruled that reasonable people wouldn't believe that Falwell really lost his virginity with his mother in an outhouse, as a parody in Flynt's Hustler magazine portrayed.

Smolla may think like a lawyer, but he doesn't write like one. Take this quote from that book, for example:

"The case was at once high moral drama and farcical passion play, a tragicomic melange of bombastic lawyers, contemptuous witnesses, and scathing cross-examinations. The case became much more than a battle of lawyers over the legal consequences of a dirty joke. It was also a cultural battle."

He concluded that the case represented a defining moment in the clash between free speech and an open society guarded by the First Amendment.

He has won awards for his books, "Free Speech in an Open Society," "A Year in the Life of the Supreme Court," and "Suing the Press: Libel, the Media, and Power," and has written a book on higher education called "The Constitution Goes to College," scheduled for publication in 2010.


Former U.S. 4th District Court of Appeals Judge Billy Wilkins, now an attorney practicing in Greenville, described Smolla the courtroom lawyer as "well-prepared, smart, articulate."

"I think he's got a high energy level," Wilkins said. "He exhibits confidence in what he's doing, what he's saying, the direction he's taking, and that wears off on other people. That's good leadership qualities."

Dan Einstein, past national president of the Washington and Lee University Alumni Association, said he has been impressed with Smolla's work as dean of the law school there.

Smolla redesigned the curriculum to give law students a full year of in-the-field experience before finishing their degrees.

"I think he demonstrated his willingness to embrace new things and to be fearless about moving an institution into a future that continues to change," said Einstein, president of Rosenfeld Einstein Insurance in Greenville.

"In general, this is one of the most significant changes to the legal curriculum in recent history," he said. "It took someone with a lot of vision and insight and courage to take a bold initiative like that and put it out on a platform for the world to see."

David Shi, Furman's current president who will retire to return to his first love as a scholar of American history, said he has no doubts that the university made the right choice in picking Smolla.

"From all that I've read and heard and seen," he said, "Rod Smolla has the heart to conceive, the understanding to direct and the hand to execute a compelling future for Furman."