The accusation stunned wartime Washington. In July 1943, numerous newspaper columnists blamed one specific federal employee for the intelligence failures that led to Pearl Harbor. His name was James Lawrence "Larry" Fly, and he had been coordinating all civilian and military telecommunication since 1940. While chairing both the Federal Communications Commission (FCC) and the Defense Communications Board (DCB), Fly had accrued significant political enemies simply by fulfilling his responsibilities. With so many critics, the smear stuck.
Fly knew immediately who had planted the rumor. FBI Director J. Edgar Hoover had secretly approached Fly in September 1940 with an urgent request. The bureau wanted permission (and access) from Fly's FCC to secretly wiretap various unnamed Americans and foreign nationals within the United States. Fly, who possessed a remarkable command of media law, knew Hoover's request violated not only the Fourth Amendment but Section 605 of the Communications Act of 1934. That section, titled "Unauthorized Publication or Use of Communications," contained a subsection called "Practices Prohibited" that clearly indicated warrantless wiretapping was illegal.
Fly rejected Hoover's request. Hoover never forgave him.
Indeed, Fly's refusal triggered an enmity so enormous, personal, and long-lasting that Hoover's biographer, Curt Gentry, described it as legendary even by Washington standards. Hoover pushed the Pearl Harbor accusation relentlessly for the rest of Fly's life, and Fly would battle Hoover's agency—in courtrooms, in the press, on television, and elsewhere—for decades. Yet few Americans today have heard of Larry Fly. His legacy of civil libertarianism and his courage in challenging the FBI remain largely forgotten in our amnesiac culture.
With every revelation about the expansion of illegal surveillance, and with each news report chronicling the decline of privacy protections, the civic cost of forgetting Fly's efforts continues to escalate. The post-9/11 debates over expanding the surveillance state would have unfolded very differently had Fly's crusade against illegal wiretapping been integrated in public school civics curricula. Indeed, in the years since 9/11 it is difficult if not impossible to locate a federal functionary of Fly's stature publicly campaigning against infringements of liberty. Fly was the rare politically appointed bureaucrat more loyal to the Constitution than to any specific administration or party.
Fly's biographer, Mickie Edwardson, died before completing her full manuscript. She did, however, publish several scholarly articles drawn from her research. Media historians, regulatory activists, and civil libertarians all remain indebted to her labor. Much of this article, for example, draws from Edwardson's "James Lawrence Fly, the FBI, and Wiretapping," published in The Historian in 1999.
But it's not simply the biographical void that explains Fly's disappearance. It's also the fact that few prominent figures in American political history acquired so many powerful enemies. At different times, over less than a decade, Fly was condemned by such powerful business and political leaders as CBS Chairman William S. Paley, RCA Chairman David Sarnoff, 1940 Republican presidential nominee Wendell Willkie, and of course Hoover. Only the patronage of President Franklin Roosevelt buoyed Fly in the stormy political waters of World War II Washington.
Fly's relationship with Roosevelt was complex. Though an ardent New Dealer and lifelong Democrat, Fly's regulatory and political positions often clashed with the administration. In addition to his quarrel with the FBI, Fly delayed (and ultimately side-tracked) an investigation Roosevelt had personally demanded into newspaper ownership of radio station licenses. He also skillfully sabotaged the president's ill-conceived plan to nationalize one of NBC's two radio networks immediately after Pearl Harbor. And when the White House pressured advertisers and networks to crack down on critical radio news commentary during the war, Fly publicly distanced himself from this shady unofficial censorship campaign. "It is a little strange," he told the press, "that all Americans are to enjoy free speech except radio commentators."
In another area, Fly may have been more regulatory than the president preferred. There is considerable evidence that he defied the White House when his FCC promulgated new rules limiting the power of the radio networks to restrain trade by imposing illegal contractual terms on their affiliates. These rules ultimately led to Fly's landmark Supreme Court victory in NBC v. United States (1943), which firmly established the supremacy of the FCC's authority over American broadcasting.
Despite the clashes, Roosevelt stood by his friend. In 1941, RCA Chairman David Sarnoff scheduled a personal meeting with FDR to request Fly's firing, but he got nowhere. "I will pay for the meal if you and Fly take lunch together and settle the argument [over television]," Roosevelt offered.
Why did Roosevelt continually back his FCC chair in the face of such intense pressure? Fly's background offers one explanation.
Born in 1898 to a poor but politically connected Texas family, Fly won appointment to the U.S. Naval Academy. He graduated in 1920, but a bout of tuberculosis cut short his military career. So he headed to Harvard Law School, where he became a protégé of future Supreme Court Justice Felix Frankfurter. After a short stint at the New York law firm of White and Case, Fly joined Herbert Hoover's Justice Department, where his cases involved antitrust and restraint of trade issues; his legal renown grew when he spearheaded the successful prosecution of the sugar trust. After Roosevelt's election, Fly became counsel of the Tennessee Valley Authority, where he bested Wendell Willkie's Commonwealth & Southern Corp. in the Supreme Court. (Fly, Willkie told the press, was "the most dangerous man in America—to have on the other side.") In 1939, Roosevelt named Fly chairman of the FCC, where he immediately changed the agency's atmosphere and tone. Hearing rooms were remodeled to resemble courtrooms, and everyone was told to rise when the commissioners entered.
Like Roosevelt, Fly could be combative and authoritarian. But they shared more than temperamental traits; both possessed personal connections to Harvard, the Navy, and the Democratic Party. Roosevelt developed enormous confidence in his appointee, a trust that shocked the military when, on September 24, 1940, Roosevelt named Fly rather than a military man to run the newly created DCB. This board was given enormous administrative power to coordinate and regulate the entirety of American telecommunication. With war looming, Fly seemed a curious pick.
The Wiretapping War
Almost immediately, Fly was tested by J. Edgar Hoover's wiretap request. Once he rejected Hoover's demand, the FBI director turned to Capitol Hill. Hoover encouraged hearings beginning in early 1941 to alter the Communications Act and expand governmental surveillance authority. With war exploding around the globe, the proposed legislation looked sure to pass—until Fly testified. His testimony was offered in executive session, due to the risk that national security secrets might be divulged, so no precise transcript exists. But everyone in the room left impressed with Fly. "He blew that goddamn bill up to the ceiling," FCC attorney Joseph Rauh later recalled. "There wasn't anything left of the wiretapping bill when he got done with it."
Then Japan attacked Pearl Harbor. Fly's job assumed new significance at precisely the same time that national security concerns severely restricted public discussion of policy. The tension between Hoover and Fly moved almost entirely out of public view until that summer morning in 1943 when newspapers reported Fly had obstructed Hoover's attempts to prevent Pearl Harbor. Columnists hinted that Fly not only was guilty of preventing the "interception" of Japanese messages, but had permitted Japanese-language broadcasting to continue in Hawaii against the advice of law enforcement and military authorities. Many newspaper accounts also charged Fly with keeping the FBI from procuring the FCC's collection of hundreds of thousands of fingerprints belonging to station operators.
We know today that the precise wiretapping demanded by Hoover in 1940 actually did happen in the end. But it was military intelligence officials, rather than the FBI, who intercepted and decoded messages between Japan and the United States. The Security Intelligence Section of U.S. Naval Communications famously intercepted communication directed to the Japanese embassy in Washington shortly before Pearl Harbor. On the evening of Saturday, December 6, 1941, Roosevelt was handed the final parts of a decoded message, and, after reading the note, looked across his desk at aide Harry Hopkins. "This means war," the president said.
Photo Credit: Photo: David E. Scherman/The LIFE Picture Collection/Getty Images. Montage: Joanna Andreasson using JL Fly FBI 1951 Report