First Amendment Champion Abrams Discusses Freedom of Speech
First Amendment Champion Abrams to Discuss Freedom of Speech
By David Geary
“The First Amendment is the rock star of the American Constitution,” Floyd Abrams writes in his recent book, “The Soul of the First Amendment.” It is, he
adds, “part of this country’s ethos, its popular culture, unrivaled by any other provision in the Constitution.”
Abrams, himself, is a rock star of American jurisprudence. As arguably the nation’s foremost champion of the First Amendment, he has successfully argued the most important free-speech cases before the United States Supreme Court in the last 50 years, from the Pentagon Papers in 1971, to Citizens United in 2010, among others. He is the senior counsel in the New York law firm of Cahill Gordon and Reindel, and has taught law and journalism at Yale, Columbia and New York University.
On Tuesday, October 10, he will appear at the Robert H. Jackson Center in Jamestown as part of daylong legal seminar entitled “Free Expression and the Scope of the First Amendment: A Conversation with Floyd Abrams, Esq.” Gregory L. Peterson, an attorney with Phillips Lytle and the co-founder and past president of the Jackson Center, will interview Abrams at 11 a.m.
The Robert H. Jackson Center, a non-profit dedicated to promoting liberty under law through the examination of the life and work of Supreme Court Justice Robert H. Jackson and its relevance to current events and issues.
At a time when freedom of speech is being challenged on college campuses, when professional football players are condemned for taking a knee during the national anthem, and when the president of the United States routinely refers to press as “the enemy of the people,” Abrams’ appearance could not be more relevant.
The 45 words of the First Amendment are not much longer than a Tweet: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” And “abridging the freedom of speech, or of the press,” is about as a third as long a Twitter missive. The Founding Fathers who authored the Constitution in 1787 initially balked at enshrining this critical American freedom, but attached it as part of The Bill of Rights shortly thereafter. Unlike similar protections included in the founding documents of other nations that followed, the First Amendment was deliberately framed as a negative. It clearly barred only governmental, not private, suppression of speech.
“The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech and religion,” Justice Jackson wrote in 1945. “In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”
Or, as Abrams puts it in his book: “The imposition of strict limits on governmental authority over religion, speech and press was the central purpose of the First Amendment. It is what the First Amendment is all about.”
And it is uniquely American. The laws governing libel and hate speech in Europe and Canada could not be more different, Abrams argues. The bar for punishing derogatory comments about a person, no matter how true, is set immeasurably higher in the United States than anywhere else. The flamboyant American entertainer Liberace, for example, won a judgement against a British journalist who suggested that he might be gay. Donald Trump’s assertion as he launched his presidential campaign that Mexican immigrants are “bringing drugs” and “they’re rapists” could have prompted his arrest and conviction on hate-speech charges in most of Europe.
Likewise, the global movement to permit the removal of documents published on the Internet under the legal “right to be forgotten,” which has led to the forced purging of hundreds of thousands of documents online, would be unthinkable in America.
The two Supreme Court rulings for which Abrams is best known are also quintessentially American.
In the Pentagon Papers case, Abrams argued that The New York Times was within its constitutional rights to publish a secret report commissioned by then-Secretary of Defense Robert McNamara that detailed the policy decisions that guided the government’s conduct of the Vietnam War. The Court ruled that, because of its extraordinary pattern of “deliberate duplicity,” the government could not legally suppress the information that was leaked to the press.
“It was shocking for its time,” Abrams said of the decision in a recent interview. “Now, the Internet assures that even if a newspaper or website agrees not to publish something, other sources can easily make that information public.”
As much as Abrams was lauded on the left for this victory in 1971, he was vilified for his success in arguing the Citizens United case in 2010.
That landmark ruling held that that freedom of speech prohibits the government from restricting the independent spending by individuals, corporations, labor unions or other groups in support of, or in opposition to, candidates for public office. Suddenly, Abrams found himself celebrated by conservatives and condemned by liberals. In fact, the MSNBC personality Keith Olbermann pronounced that Abrams would “go down in history books as the Quisling of freedom of speech in this country.”
“He said that on the day of decision,” Abrams recalled. “It’s nothing too terrible. Most of my friends tilt toward the liberal side and are firmly of the view that there is too much money in politics and too much inequality. They are for limiting the speech of wealthy people and corporations, and, while we certainly have a long way to go, limiting the First Amendment is not the answer.”
Abrams noted that a recent poll found that 80 percent of Americans disagreed with the Citizens United ruling. But he also pointed out that other deeply unpopular forms of free speech, like burning the American flag, accosting women outside abortion clinics and obnoxiously protesting at funerals are all protected by law.
And there will always be threats to freedom of speech, he said.
“There are two real challenges to the First Amendment today,” Abrams said. “One is the disturbing trend on college campuses to try to silence dissenting speech. Too many students are committed to preventing speakers they disapprove of, mostly on the right, from speaking freely.
“The other major problem is that the president of the United States has urged that a number of steps be taken to limit First Amendment rights,” he continued. “He is, at best, indifferent to the rights of other people. One may not agree with these NFL players kneeling during the national anthem, but the notion that they should be fired or that the president should curse them is very disturbing.”
“I’m not really worried,” he added. “There are no federal libel laws. Each state has its own. It’s simply implausible to imagine it. There is a high level of protection for the press.”
Abrams compared the current controversy over the national anthem to a 1943 ruling that was authored by Justice Jackson.
In the case of West Virginia Board of Education vs. Barnette, the state had argued that all public school students were required to salute the American flag and recite the Pledge of Allegiance or face expulsion, an order resisted by a little girl who was a Jehovah’s Witness.
“Think of it,” Abrams said. “That was during World War II, and, understandably, for very good reasons, they felt it was important for kids to salute the flag. The girl’s parents said we don’t salute the flag or anything else. Justice Jackson wrote what may be the most eloquent and enduring opinion in the Court’s history, that she should not be compelled to salute the flag.”
“It’s an extremely powerful opinion,” he added. “Jackson may have been the greatest writer in the history of the Supreme Court, certainly in the top five.”
Despite challenges, Abrams contends that the First Amendment has never been stronger.
“I think it’s healthier than it has ever been,” he said.
David Geary has been a reporter and editor for more than 40 years. He retired in 2015 from The New York Times, where he was the late-night news editor. He also has worked for The Boston Globe and other newspapers. He currently freelances for the Times and lives in Westfield with his wife, Karin Henry.