Sean Howe | Longreads | May 2019 |  15 minutes (3,853 words)

In November 2018, after the Secret Service seized the security credentials of CNN reporter Jim Acosta, the White House Press Secretary stated the reason for the revocation was that the administration would “never tolerate a reporter placing his hands on a young woman just trying to do her job as a White House intern.” Within hours, attorney Ted Boutrous responded on Twitter:

“This sort of angry, irrational, false, arbitrary, capricious content-based discrimination regarding a White House press credential against a journalist quite clearly violates the First Amendment. See Sherrill v Knight (DC Cir 1977).”

Boutros didn’t elaborate on the case’s importance — he was about to prepare arguments for his new client, CNN — and while Sherrill v. Knight isn’t well-known, it dragged on through three presidential administrations and involved multiple government agencies, and made history as likely the only significant legal decision that began with a pie.

* * *

On May 13, 1970, a stretch limousine painted with the red, blue, and gold of the Viet Cong flag pulled into Washington, D.C. Its passengers — one in costume as a reverend, another as a nun, and another as a member of the Puerto Rican activist group the Young Lords — piled out and made their way toward the New Senate Office Building on Capitol Hill.

The man dressed as a preacher was Thomas King Forcade, a squirrely ex-Arizonan with a degree in business administration and a fondness for race cars. Forcade had abruptly joined the counterculture with a 1967 phone call from Phoenix to New York City, volunteering to work for the Underground Press Syndicate, a national consortium of hundreds of regional — and mostly leftist — independent papers. Amid the chaos of cultural shifts and growing political upheaval, publications like the Berkeley Barb and the East Village Other covered the growing subcultures of America that the establishment media often dismissed or ignored. These underground papers catered to and connected longhair freaks and militant intellectuals to a degree that unsettled authorities while also providing the network of communication necessary for political strategy. These were the sorts of ideas that didn’t make their way into Reader’s Digest or Life or the New York Times.

UPS also diligently cataloged a growing trend of attacks on the underground papers themselves. Offices were firebombed in Texas (Space City) and California (The Los Angeles Free Press); the windows of an editor’s car were shot out in Wisconsin (Kaleidoscope). These journalists were also continuously harassed by law enforcement and government agencies, which used narcotics (a 10-year sentence for a Michigan editor who possessed two joints) and obscenity as common pretexts for arrest.

During a two-year period at UPS, Forcade’s responsibilities had grown, necessitating the decision to take the organization mainstream and move to New York. In the interim, Forcade hired an ad agency to procure national sponsors and help negotiate a deal with Bell & Howell for microfilming rights, both of which brought in more income than papers had seen before. And so, on this May day, Forcade was scheduled to speak at a presidential commission on obscenity.

Inside the hearing room, the group of UPS staffers, with the cooperation of local radicals, broke out a cardboard box and passed sample copies of newspapers to attendees. When Forcade was called to address the commission, he lowered his wide-brimmed black hat and read a thousand-word statement about the underground press in a fast, low voice:

We are the solution to America’s problems. We are revolution, these papers are our lives, and nobody shall take our lives away with your goddamned laws. We are tomorrow, not you. We are the working model of tomorrow’s paleocybernetic culture …

Forcade punctuated his speech with a periodic refrain of “Fuck off, and fuck censorship!” During a momentary silence, the 3-year-old pig-tailed daughter of one participating couple repeated the phrase and punched the air with her closed fist. As nervous laughter subsided, Forcade cued a cassette recording of Bob Dylan’s “Ballad of a Thin Man” and recited a list of papers victimized by censorship. But the song outlasted the list.

“Do you have anything more to say?” the chair of the commission asked over the strains of Dylan, but Forcade insisted that the music was part of his testimony. Only when Otto Larsen, a member of the commission, interjected and challenged Forcade’s charges of “McCarthyesque witch hunts and inquisitional hearings” did the costumed priest approach the rostrum.

“I think I have the material in my box to explain that,” he said. Reaching inside, underneath a pile of papers, he produced a cottage cheese pie, which he hurled into the face of Larsen as cameras flashed.

Forcade’s actions made front-page headlines across the country. In Los Angeles, an underground newspaper editor complained that his own testimony had been overshadowed by the stunt. But America had enough of seriousness: Only a week earlier, peaceful protest against U.S. bombing campaigns in Southeast Asia ended with four students at Kent State University killed by the National Guard. Campus strikes were still active at hundreds more colleges around the country. The levity of a pieing was required.

* * *

The fourth estate was under siege in 1970. Reports surfaced about federal courts serving subpoenas to the New York Times, Time, Life, Newsweek, and other outlets to demand notes, tape recordings, and even testimony from journalists. Even more distressing was that the corporate owners often complied with these demands. In New York, Detroit, Albuquerque, and Washington, D.C., intelligence and law enforcement agents were caught posing as journalists or photographers. The Chicago Tribune reported that the Army had videotaped rallies from a truck emblazoned with the name “Midwest News.” Meanwhile, Vice President Spiro Agnew toured the country giving speeches filled with anti-media rhetoric. He frequently targeted large newspapers and networks, but on occasion, he would attack the UPS papers, like the Quicksilver Times: Agnew claimed that its distributor “may be contributing to the maiming or death of other human beings.”

At the end of the year, the 20th Century Fund, a New York–based research foundation, formed a Task Force on Press Freedoms to investigate the U.S. government’s assaults on the free press. The think tank invited Forcade, equipped with his inside knowledge of underground papers (not to mention his pie-hucking notoriety), to serve on the committee along with such old-guard luminaries as Mike Wallace and George Reedy. Forcade traded his all-black suit for an all-white one — though he didn’t resemble Tom Wolfe as much as he did the ghost of a riverboat gambler. He wrote to friends that he was going to learn “the ways in which the media has been fucked over by the government.”

In May 1971, Forcade headed to the District of Columbia and established a three-person UPS news bureau, applying for a White House press pass in the process. For the first time, he vowed, the radical media would cover the president. As it turned out, Forcade arrived in town just in time for the most flagrant journalistic suppression of the era, when courts imposed restraints on the Washington Post and New York Times, both of which were attempting to print the leaked documents known as the Pentagon Papers.

* * *

If it was anything like an esprit de corps that inspired Forcade’s quest for press credentials, such camaraderie was short-lived. He learned that a prerequisite for a White House pass was membership in the Congressional Press Galleries; when that body’s standing committee presented him with arcane admission requirements— which required UPS to have a telegraphic service, prior State Department approval for foreign member papers, and a plan to file stories daily — Forcade lashed out at what he called “a group of puppet journalists.”

“On the same day when everyone was weeping and crying about the repression of the New York Times,” Forcade wrote in a statement, “they were actively carrying out the same repression — preventing access to news — upon the underground press.”

Among those objecting to Forcade’s admission to the august body was Luther Huston, a reporter from Editor & Publisher who had previously tangled with Forcade.

Back in November 1969, three days after charges — under his given name of Gary Kenneth Goodson — of possessing LSD in Phoenix were dropped, Forcade attended a Sigma Delta Chi journalism convention in San Diego. On the morning of a panel he had agreed to attend, he was again arrested, this time on charges that he desecrated of an American flag (it was rolled up like a bandana around the brim of his hat). The convention host bailed him out, but when the hatless Forcade returned, he stormed a different panel — one already in session and attended by Huston — and tore into the establishment press.

“While people are being beaten, starved, and killed,” he raged, “you fill the pages of your rags with the news of bake sales and debutante balls.”

Then he turned on the audience and accused them of setting him up for arrest. He grabbed a water glass from the panel table and hurled it at a press table in the back, where it narrowly missed Huston.

Two years later, then, in September 1971, it was with some bitterness that Huston found himself reporting that, “by a 3-to-2 vote, after weeks of controversy, the Standing Committee of Correspondents has admitted to membership in the Senate press galleries a newsman who once threw a pie in the face of a member of the U.S. Commission on Obscenity and Pornography.”

* * *

In mid-November 1971, several months after he had applied for the first-ever press pass for an underground paper, Forcade received a call from Fred Graham, the New York Times journalist leading the Task Force on Press Freedoms. Graham revealed that the Secret Service had now denied Forcade’s application to cover the White House. Neither Forcade nor Graham knew the reason why — the Secret Service agent assigned to Forcade’s case wouldn’t return calls, and a department spokesman would only say that its decision was “on the basis of certain information.”

Graham made sure the story appeared in the next day’s edition of the Times, under a headline blaring, “White House Bars A Radical Reporter.” Upon reading it, a secretary for the American Civil Liberties Union wrote a letter inviting Forcade to join Robert Sherrill, a Nation journalist who’d once socked a governor’s press secretary in the jaw, in pursuit of access rights.

The timing couldn’t have been more perfect: A few days later, the Task Force delivered its final report, which included a call for an end to the harassment of the underground press. When asked by reporters about his fight for a press pass, an unchastened Forcade announced a plan to park a van across the street of the White House and monitor activity at the mansion with binoculars. (He may have undermined his argument when he boasted to a writer from the Washington Post that not only was he was a former Weatherman and White Panther, but he also owned two guns.)

Back in D.C., Forcade filed mischievous reports from the Senate Gallery, which were then published in UPS member papers. He wrote about pilfering Senate stationery and placing underground papers in press gallery reading rooms, noting that “nobody will openly read them. They take them to the bathroom instead. It is a lot of work hauling the papers back to the reading table from the bathroom every day.” He introduced himself to children on field trips as “the Senator from Woodstock Nation.”

These articles painted a much different picture of the Washington press corps than the one conjured in, say, All The President’s Men. Reporters had become thoroughly paranoid and resigned to the idea that their office phones were tapped. Midnight visits by the FBI, who would check in on stories in progress, were the norm. “A reporter told me how one time he remained standing a moment too long,” Forcade wrote, “and was firmly planted in his seat by Secret Service goons.”

And then there was the paranoia that Forcade himself tried to cultivate. After a former UPS employee was arrested in connection with the bombing of a Capitol Building bathroom, Forcade’s dispatches became brazen with allusions: “I spent one Friday at the Capitol Building, familiarizing myself with the layout,” he wrote, and, “the Capitol building is wide open for another bombing.”

Forcade’s reporting on the 1972 State of the Union Address, which he covered from the press gallery of the House, read like a taunt:

I was sitting above Nixon and behind him, about 50 feet away, when he gave his speech to the joint session of Congress. In front of me, all within 100 feet, were the entire Supreme Court, the entire Cabinet, the Joint Chiefs of Staff, the Senators, the members of the House, and most of the Ambassadors…. As I stand listening to Nixon’s jive, I can’t help thinking that one good bomb would wipe out the entire military, executive, legislative, and judicial hierarchy, and that if that bomb went off, I would go too. Even with wall-to-wall Secret Servicemen, I felt a little unsafe.

Three days after Nixon’s speech, the NYPD pulled Forcade over, booked him for altering his license plate, photographed him, and released him.

* * *

As Forcade continued to report with a guerilla-like zeal, the ACLU appealed and re-appealed for Sherrill and Forcade’s White House credentials. No one would go on the record with the reason for the denial, though the parties involved could read between the lines: At one point during the two years of appeals, a letter from the Department of the Treasury (which oversaw the Secret Service) referred to the New York Times‘ coverage of Forcade’s now infamous pie incident.

In the midst of the ACLU’s legal maneuvering, Forcade shifted his focus to other pursuits. He formed a Yippie splinter group called the Zippies, who staged various demonstrations — one included a stolen giant portrait of LBJ — at the 1972 Republican National Convention in Miami. On the final night of the RNC, police stopped the flatbed truck Forcade was driving and extracted a five-gallon can of gasoline — fuel for a sound-system generator — and what appeared to be a few homemade candles, all of which they classified as “illegally manufactured and unregistered destructive devices.” He was eventually acquitted of the charges, but the stress of the grand jury indictment shook Forcade. Reeling from the consequences of public radicalism, he quietly began working on launching another magazine, one that might foment a different kind of rebellion, and make some money too. “The ‘movement’ was over,” he later explained, “and I needed something to keep from killing myself out of boredom.”

The ACLU, though, was busy, finally filing Forcade v. Knight in April 1974. Included in the lawsuit was a signed affidavit by Forcade, explaining that the pie incident “was a juvenile prank which, in hindsight, I believe was foolish. … I have no intention of disrupting any press conference, including those at the White House, and I am surprised and shocked to find that the Secret Service and the White House consider me a ‘threat to the physical security of the President and/or his immediate family,’ and I am particularly distressed at their refusal to give me any opportunity to demonstrate that their evaluation is not true. My exclusion from the White House is a serious infringement on my work as an alternative press reporter, and therefore I respectfully ask the Court to grant me relief.”

The day the case was filed, the House Judiciary Committee subpoenaed Richard Nixon to turn over audio recordings that had been taped in the Oval Office. Installation of the taping system had been the responsibility of Al Wong, the same Secret Service agent who wouldn’t return Forcade’s phone calls.

By that time, Forcade had assembled the first issue of the pro-marijuana magazine High Times. Marketed as “a lavish magazine devoted entirely to psychoactive drugs and other highs,” its debut issue featured an interview with a “lady dealer,” the latest market prices on illegal substances, and a cover photograph of a woman about to ingest mushrooms. Before the summer was over, i>High Times #1 was a rousing success, selling out its print run of 20,000 issues, and Richard Nixon — Forcade’s bête noire — had resigned.

Another presidential administration would have to resolve Forcade’s lawsuit, but not before ACLU lawyer John Shattuck, the suit’s primary litigator, finally received Forcade’s Secret Service and FBI files — one week before he was scheduled to testify before a House Judiciary subcommittee on surveillance in January 1975. Naturally, he included excerpts of Forcade’s files as exhibits.

The files were damning, and packed with confirmations of surveillance, disinformation, and provocation that stretched over years:

  • Forcade’s Arizona Air Guard records, obtained by the FBI, included the August 1969 psychiatric exam ordered after his LSD possession arrest, after which he received, surprisingly, an honorable discharge.
  • Records of toll calls Forcade made were obtained “without legal process” by the Secret Service.
  • Also without legal process, the FBI obtained the credit records of a printer who had worked with Forcade.
  • During the 1972 Republican National Convention, an informant had advised the bureau that a “Wanted: Tom Forcade” handbill (which suspiciously included Forcade’s NYPD mug shot) had been passed out in Miami, attributed to the fictional “Anti-Heroin and Hard Drugs Committee.”
  • Other informants had reported on Forcade in Long Island, while federal agents interviewed Forcade’s mailman in Manhattan and a gun salesman in Phoenix and infiltrated political meetings he attended in Miami.

One revelation had consequences for an entire city: In Madison, Wisconsin, the police department’s “Affinity Squad” had spied on Forcade and other local activists in conjunction with the Secret Service. After Forcade’s files were released, the mayor of Madison decided to unveil nearly the entire cache of the Affinity Squad’s files, which totaled 9,000 pages. That sort of unlicensed surveillance and federal overreach led to various lawsuits, and eventually the city found itself paying out thousands in settlements (one such settlement was for $22,000).

* * *

It was another 18 months before a D.C. circuit judge finally ruled on Forcade v. Knight, deciding that the Secret Service would have to make public specific standards for issuance of press passes to the White House. If a press pass was denied, the judge ruled, the applicant would be entitled to rebut any information that had disqualified them. The ruling was a blow for the government. Its best argument to keep Forcade away from the White House, it turned out, was a report that the FBI had received from a confidential informant in Detroit, before that 1972 State of the Union speech:

[Redacted] advised the subject stated he was trying to obtain a White House press pass and, if successful, he will conceal a gun in his camera and shoot the president.

[Redacted] added that the subject has been dealing in the sale of marijuana and is an extremely unstable person.

Since there were no other witnesses to the alleged threat, the name of the Detroit informant would have to be disclosed for the report to be admissible — and thus to justify the continued denial of Forcade’s press pass.

There was yet another delay of several months before an appeals court upheld the ruling: “Notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees.” The battle, which had lasted through multiple presidential administrations, was over, with neither of the reporters ever testing the case’s ruling.

* * *

The landmark case is known as Sherrill v. Knight because, in the final stretch of the appeals process, Forcade withdrew from the suit. He’d been distracted by charges from another grand jury, this one brought by the Special Narcotics Courts of the City of New York, which had subpoenaed his High Times employees. [1] The “extremely erratic behavior” described in his FBI file flared up: He fired the staff of High Times, ripped telephones from the office walls, and ordered the magazine shuttered — only to reopen it days later. And he had a growing fear that someone was out to get him: His lawyer advised him that his former smuggling partner had cooperated with the government two employees of High Times’ distributor were shot at, and another’s car was bombed. It was, in an awful symmetry of violence, an echo of the early days of the underground press.

In November 1978, Forcade died from a self-inflicted gunshot wound. He was 33 years old.

* * *

Much as the underground press provided a forum for the New Left and counterculture of the 1960s, High Times served as the national message center for the 1970s movement to bring marijuana to the mainstream. During Forcade’s four years publishing the magazine and funding the marijuana lobby, possession of small amounts of cannabis was decriminalized in Alaska, California, Colorado, Maine, Minnesota, Mississippi, Nebraska, New York, North Carolina, Ohio, and Oregon. The first Americans began receiving marijuana for a medical condition. High Times editorials from those days seem almost prophetic now: warning against the corporate interests that would descend upon legalized weed, and noting the ways in which international drug wars could serve as cover for imperialist adventures. (Forcade’s own extralegal activities have a legacy as well, but that information has mostly lurked in government agency records, in the memories of tight-lipped collaborators, and in the research files of my forthcoming book about him)

The repercussions of Forcade’s battle for press rights have been similarly enduring. In the early 1990s, archival research revealed that during the discovery process of the ACLU’s lawsuit, the FBI had twisted information from one source to justify surveillance of John Lennon; contrary to the bureau’s claims at the time, the feds had privately concluded that Lennon did not, in fact, plan any “revolutionary activities”. Twenty years after Forcade’s fight began, the bureau exonerated the ex-Beatle.

Last November, lawyers for Cable News Network v. Trump cited Sherrill v. Knight in their argument that the White House had no authority to arbitrarily deny access to “White House press facilities.” What began as a foolhardy ban by the Trump administration was swiftly revolved: The White House folded in its attempt to muzzle oppositional journalism and restored Jim Acosta’s credentials.

That wasn’t the White House’s final attempt to restrict press access: On May 10, news spread that the White House had revoked the press credentials of dozens of journalists. In response, the free-speech advocacy organization PEN America filed a brief opposing the government’s motion to dismiss its First Amendment lawsuit against Donald Trump — a lawsuit first filed last fall and one asserting that the administration of the 45th president had violated the constitutional freedoms of the press.

Who knows what a discovery process might yield? Attempts to stymie journalism in the United States often have a way of backfiring. Long before the White House Plumbers broke into the Democratic National Committee headquarters at the Watergate hotel, which led to the airing of various crimes of the Nixon administration, Tom Forcade wondered aloud, “I don’t know what’s going on in the White House that they don’t want to let me in. It must be terrible.”

* * *

Sean Howe is the author of Marvel Comics: The Untold Story (Harper, 2012) and a forthcoming biography of High Times founder Thomas King Forcade.

Editor: Matt Giles
Fact checker: Sam Schuyler
Copy editor: Jacob Z. Gross

[1]For reasons that remain unclear, the investigation was eventually squashed.