"Are you a virgin, Miss Pring?"
The opening sentence of "Trial by Fire" plunges the reader into a tempestuous, three-year legal battle for a young woman's reputation and integrity. With the rural wisdom and blunt candor that endear him to juries nationwide, Wyoming trial lawyer Gerry Spence tells the story of a libel suit, in the process raising vital questions not only about pornography and women's rights, but also about the very future of our jury system.
The underlying issues of "Trial by Fire" are a legacy of the Puritans and their fellow Colonists. Between 1691 and 1692 in Salem, Mass., at least 20 people -- most of them women -- were cruelly executed for the crime of witchcraft, marring the early history of American law with the taint of mass hysteria inherited from the European Inquisition. Decades later, a colonial jury defied the instructions of a judge and acquitted New York pamphleteer John Peter Zenger of seditious libel for criticizing a British governor, marking the birth of two precious American principles: the right to free expression and the power of a jury to apply the law according to conscience despite a judge's instructions. Both the Salem witch trials and the Zenger decision left indelible imprints on our judicial system.
Two centuries after Zenger left prison, a Wyoming jury, despite the judge's 42 pages of legal instructions, assessed more than $26 million in damages against Penthouse magazine for libeling the 1978 Miss Wyoming in a pornographic story attributing supernatural sexual powers to her. The award was intended to punish Penthouse as well as to compensate Kim Pring for the lewd comments, obscene phone calls, continuing sexual harassment, lost employment and shattered self-esteem she had suffered.
The 10th U.S. Circuit Court of Appeals, however, reversed the jury's verdict, a reversal left standing by the Supreme Court in 1983 and hailed by the media as a victory for a free press.
Spence retries the case against Penthouse in "Trial by Fire," his third -- and by far best -- book on his experiences as a champion of "little people" in the courtroom. Spence has an uncanny talent for bringing the cold mechanisms of justice to life with vivid, compelling immediacy. In the clash between Kim Pring and the implacable corporate warriors of Penthouse, Spence chronicles the day-to-day drama of a lawsuit, framing the technicalities of law in a human, emotionally charged context.
Kim Pring discovers that to seek justice is to place herself on public trial. Courts allow defense attorneys to pry relentlessly into a woman's sexual history, an ordeal at least as painful and humiliating as the injury she seeks to remedy. There is no male counterpart to this sex-linked double jeopardy in our legal system, which Spence traces to its origins in the witch hunts of the Dark Ages.
The First Amendment right to free expression, Spence argues, is not a license to hurt or defame another, any more than the right to bear arms is a license to kill. Such logic is enough for a Wyoming jury, but insufficient for judges burdened by centuries of parchment law. As he suffers with his client through repeated humiliations in court, Spence recognizes the curious duality of his case. The same fear and loathing of female sexuality that fanned the flames of the Inquisition and the Salem witch trials survive unchanged in today's lucrative pornography market and in the righteous bias of our male-dominated legal system.
The extent to which pornography is protected by the First Amendment remains an unsettled issue. The Wyoming jury drew a clear line between freedom of speech and license to injure. The appeals court reversal of the Penthouse verdict illustrates the dwindling power of juries -- the direct voice of a democratic society -- to distinguish right from wrong according to contemporary values.
"Law is often in very truth a government of the living by the dead," said the eminent legal philosopher Roscoe Pound in 1906. In the appeals court's reversal of the Penthouse verdict, Spence believes, the dead hands of Cotton Mather and the Grand Inquisitor overrule the values of a modern jury, subverting Zenger's free press victory to swell pornographic profits. Whether or not readers agree with Spence, he raises important issues in a lively, fascinating story. "Trial by Fire" is an eloquent, provocative plea both for the rights of women and for the endangered role of the jury in our courts.
The reviewer is the author of "A Bitter Fog: Herbicides and Human Rights."