Herald
Price Fahringer, an urbane New York lawyer who forswore most vices
himself but who, on free speech grounds, gamely defended Larry Flynt and
Al Goldstein when they were accused of distributing pornography, and represented other high-profile clients like Claus von Bülow and Jean S. Harris, died on Feb. 12 at his home in Manhattan. He was 87.
He had prostate cancer, his law partner, Erica T. Dubno, who confirmed the death, said.
Mr.
Fahringer’s court victories often reverberated beyond the individual
client. He persuaded the United States Supreme Court to overturn not
only a convicted murderer’s life sentence, but also the federal law
under which it was imposed; it had barred defendants from claiming that
their lawyers were ineffective in unlawful detention cases.
He
convinced New York State’s highest court that women have the same right
as men to appear topless in public parks. His relentless challenges to
new zoning constraints temporarily thwarted New York City’s crackdown on
strip clubs and X-rated book and video stores in Times Square.
In
1961, just a few years out of law school, he persuaded New York’s top
court, the Court of Appeals, to redefine hard-core pornography while
successfully defending an adult-magazine store owner accused of
obscenity. In its ruling, the court narrowed its definition to “what is
sexually morbid, grossly perverse and bizarre without any artistic or
scientific purpose or justification.”
Mr.
Fahringer himself dressed the part of a patrician lawyer, sporting deep
blue Paul Stuart ensembles and custom-made loafers, riveting all eyes
as he grilled witnesses or argued before juries.
Dashing “in the Rossano Brazzi
mold,” as one client described him, Mr. Fahringer “could have had a
career in Hollywood as easily as one in the courtroom,” said a fellow
lawyer, Richard Ben-Veniste.
And
yet, as the civil liberties lawyer Norman Siegel once said, “Despite
his flamboyance and courtroom showmanship,” he was “not just a suit” but
someone who “cares passionately about the First Amendment.” Mr.
Fahringer abjured alcohol, cigarettes and even candy, confessing that
his own worst vice was watching “Seinfeld.”
“You don’t dare use a four-letter word around Herald,” said Al Goldstein, the otherwise profane publisher of Screw magazine.
Professionally,
Mr. Fahringer had no trouble visiting the sex parlors and viewing the
pornographic films that he agreed to defend, although after seeing one,
“Cake Orgy,” he remarked, “You’ll never eat a marshmallow pie again as
long as you live.”
He
insisted that, as Larry Flynt, the publisher of Hustler magazine, had
put it, if privileged people could go to galleries and the theater, then
the newsstand was “the poor man’s library or art museum.”
Defending
Mr. Flynt in one of his several conspicuous run-ins with the law on
pornography charges, Mr. Fahringer rose to address the jury, buttoned
his suit jacket and paused to project deep thought.
“Freedom
is only meaningful if it includes all speech, no matter who is offended
by it,” he said. “It would be a hazardous undertaking for anyone to
start separating the permissible speech from the impermissible, using
the standard of offensiveness.
“The
freedom guaranteed in the First Amendment is indivisible. You can’t
take it away from Larry Flynt and keep it for yourself. The real issue
of this case is: Are we afraid to be free?”
Mr.
Flynt was moved to tears. The jury and the judge were not. Mr. Flynt
was convicted and, in 1976, sentenced to seven to 25 years’
imprisonment. (He served six days; the sentence was overturned on a
technicality.)
Herald
Price Fahringer was born in Lewisburg, Pa., on Nov. 6, 1927. His
father, Herald Price Fahringer Jr. (who later dropped the “Jr.”), was an
oil company engineer and professional boxer. His mother, the former
Pauline Dyer, was a homemaker. He graduated from Pennsylvania State
University and the University at Buffalo Law School and served in the
Army in Korea.
Two
avocations would serve him well as a lawyer. At his father’s urging, he
began boxing when he was 12. And after college, he briefly joined a
theater troupe organized by Arthur Treacher, the English actor. He worked his way through law school by appearing in television commercials.
His
marriage to Barbara Falk ended in divorce. For several decades he lived
with his companion, Margaret Noyes, who died in 2007. No immediate
family members survive.
In
1974, Mr. Fahringer’s representation of Mr. Goldstein, who was facing
60 years in prison on federal pornography charges in Kansas, resulted in
a mistrial and an overturned conviction.
In
the 1990s, his nonstop litigation forced a delay in the Giuliani
administration’s efforts to shutter sex shops in Times Square unless
they had limited their sexually oriented merchandise to 40 percent.
Pressure from developers bent on gentrification was more difficult for
him to overcome.
Mr. Fahringer represented Mr. von Bülow, the socialite accused of trying to kill his wife, Sunny,
by injecting her with insulin, in Mr. von Bülow’s first trial. In one
exchange with Mr. Fahringer, Mrs. von Bülow’s doctor said that he had
suspected she was being poisoned.
Mr.
Fahringer asked, “If you thought that anyone, during 1979 or 1980, was
trying to poison Mrs. von Bülow, wouldn’t you have done something?”
The
doctor replied: “You’re on a very sensitive subject, counselor. If
you’re going to blow the whistle, you better make darn sure you’re
correct. I cannot go to one of my patients and say, ‘I suspect your mate
may be doing something harmful to you’ unless I have absolute proof. I
could have a suspicion and not act. We have libel laws in the country,
counselor. I can’t afford to make an accusation that I can’t back up in
court.”
Mr. Fahringer countered, “But you don’t operate in court, do you?”
Mr.
von Bülow was convicted, but won on an appeal that was handled by
others. (Alan Dershowitz, a consultant to the appellate defense team,
said that Mr. von Bülow had branded Mr. Fahringer “a martinet, allowing
no debate.”)
Mr.
Fahringer soon turned to an appeal of the conviction of Jean Harris,
who had been found guilty of murdering her former lover, Dr. Herman
Tarnower, author of “The Complete Scarsdale Medical Diet,” in 1980. The
case was lost, but her sentence was later commuted.
More recently he represented Lynne F. Stewart, a lawyer accused of providing material support to terrorists. Her 28-month term was extended to 10 years
after she boasted that she could manage the original sentence “standing
on her head.” In appealing the extended sentence, Mr. Fahringer argued
that comments out of court cannot be punished by longer prison terms. He
lost the argument, but Ms. Stewart was later released for health reasons.
Just two weeks before he died, Mr. Fahringer, appearing in federal court on behalf of a client, affirmed his fear of retiring.
“I have great trouble filling leisure time, so I eliminate it,” he said. “Working is easy. It’s living that’s hard.”
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