Big Think Interview With Floyd Abrams
Floyd Abrams is one of the leading legal authorities on the First Amendment and U.S. Constitutional Law, having appeared before the U.S. Supreme Court. Abrams is the William J. Brennan Jr. Visiting Professor at the at Columbia University's journalism school. He is a partner with the firm Cahill, Gordon & Reindel.
In perhaps his most famous case, Abrams defended the New York Times in the Pentagon Papers case in 1971 in which the paper published secret reports on U.S. involvement in Vietnam from 1945 to 1967.
Question: What should everyone know about the First Amendment?
Floyd Abrams: Well, I guess the first thing one has to know about the First Amendment is that it wouldn’t be there at all if Thomas Jefferson had not insisted. The Constitution had been pretty well drafted and Jefferson, who was not at the Constitution Convention and who was in Paris at that time, basically took the position that without a Bill of Rights and in particular without a Bill of Rights that protected freedom of speech and freedom of the press, that he would not support the new Constitution.
So a Bill of Rights—this Bill of Rights and this 1st Amendment—was a essential ingredient of the Constitution from the start. And from the start it protected a number of different sorts of speech beliefs, conscience, and the like. It protects freedom of religion, it protects freedom of speech, protects freedom of press, protects freedom of assembly, all of them.
And through the many years since the drafting of the Constitution and the adoption of the Bill of Rights which of course starts with the First Amendment. Through that time period we’ve had many, many cases in the courts which have adopted through interpretation the First Amendment to new problems being sustained by the people and by the states as well. At the beginning, the First Amendment applied only to the Federal Government—after all it does say, “Congress shall make no law.” After the Civil War and the adoption of amendments post-Civil War, they were held to apply to the states but really not until late 1920s, early 1930s. So through most of American history the First Amendment really had nothing to do with what states did and what state law turned out to be.
There was state constitutions but the federal Constitution, the First Amendment, applied only to the Federal Government. Where have we gone? Well we have gone through the years in a direction generally of more protection. The First Amendment, remember, applies only as a protection against the government, not against private employers, not against friends, or enemies, or this, or that. It is a protection against the government. The government depriving people of their freedom of religion. The government is telling them in effect who to pray to or whether to pray at all, and in what way. And the government depriving people of freedom of speech or freedom of the press, or freedom of assembly. I mean, at its core it is a protection of human freedom by protecting against government overreaching.
That was debated a lot when the First Amendment was adopted. Alexander Hamilton said, “Why do we need a Bill of Rights at all? Whoever said Congress could pass a law stripping the people of freedom of speech? They don’t have the power to do it, so why do we need to have a Bill of Rights or why do we need a First Amendment in the first place?” And, as I said, Jefferson insisted. Jefferson said, “Any constitution for this country ought to say and say in so many words that there was a list of untouchable areas into which Congress could not transgress, into which the new Federal, National Government couldn’t go."
And with that background—while even from the start there were problems, First Amendment problems, the Alien and Sedition Act was adopted in 1798, that close to the adoption of the Constitution and then the Bill of Rights. And it quite literally made it a crime to speak to badly of the President, then John Adams. Not the Vice President, because it was Jefferson—even then we had politics. But it made a crime to say critical things about the President at least if they were "false," which of course lead to lots of issues about what’s an opinion and what’s a fact, what’s true and what’s false. But that law was our first law which on the face of it violated the First Amendment. Jefferson called it, “living under a rain of witches.” And ultimately the verdict of history as the Supreme Court came to say, the verdict of history was that the Alien and Sedition Acts were unconstitutional and through the years some acts of Congress have been held to be unconstitutional. Many acts, more recently of states have been held to be unconstitutional, and in all these ways the adoption of the First Amendment has been an incalculable protection of the public against overstepping by the government.
Question: Are there boundaries to freedom of speech and freedom of the press?
Floyd Abrams: There have always been boundaries on freedom of speech and freedom of the press. At different times they’ve been interpreted more or less strictly. I mean, we’ve always had libel law for example. People have always been able to sue when false things were said about them, which harmed them. However in 1964 the Supreme Court in one of its greatest opinions, New York Times against Sullivan, basically decided that there was, in the interest of protecting freedom of speech, a need to expand beyond old law like when I was in law school for example, we were taught libelous material isn’t protected by the First Amendment.
Well, that’s still true but what the court said in 1964 was in defining what’s libelous we have to take into account the First Amendment, and in particular when you speak about a public person, public figure, a public official, there can’t be a winning libel suit against you unless you basically lied—said something you knew was false or you suspected wasn’t true. That’s just one example. The area of national security, we have some statutes which make it a crime to publish details about building atomic weapons. In the area of national security the government has sought to and I would say has established the proposition that if they can get to court with respect to material which would really, really cripple the country in the sense of making it impossible for the country and its people to be safe from eminent harm caused as a result of the speech itself, why then the Supreme Court has said that there can be a prior restraint, an injunction against the speech.
But not much. I mean, America has always been the country in the world with more protection for speech, more protection for religion, those two areas in particular, more protection for freedom of the press which together with freedom of speech have a sort of a common body of law than any country in the history of the world. It’s not to say we haven’t had real... and real big First Amendment problems sometimes and First Amendment deprivations sometimes. But taken as a whole its been really a astonishing, a breathtaking degree of personal freedom for people, for organizations, for institutions to have their say.
Question: How do you feel about the political polarization of today's press?
Floyd Abrams: The press now is, in an sense ,more like it was around the time of the revolution, our revolution, than what it was 30, 50 years ago. It is becoming more partisan. That’s of course, especially true of cable television, but the print press more so than it used to be. It’s primarily on cable and on the Internet that you see again and again definitions of what’s news and definitions of what’s true which seem to be based almost exclusively on the political and ideological views of the speakers.
And so what had been the... and to some extent of course still is, the journalistic ethic not always fulfilled but the recognized ethic of impartiality of reporting the news and being absolutely free to comment about it but basically not turning newspapers over for purely partisan use, is something that we’ve been moving away from and I think it does not profit us. I mean, the idea that people sit at home now and now have this wonderful choice—which is good—to see, you know, anything they want – any views they want but that the effect of that is that so many people only see things they agree with. And are only reinforced in their preexisting views rather than being open to learning about what’s going on.
There are some facts out there. I mean, not everything is sheer opinion. On some matters there is the truth. There are notions of accuracy, there are facts and I do have some concern that we are moving away from that.
Question: Is the Wikileaks document release protected by the First Amendment?
Floyd Abrams: Well, I don’t know of anything in what Wikileaks has published which violates any law. There’s been some suggestion in some of the press that this is treason. It’s not treason for one thing because the people that run it aren’t even American. It’s not spying. It’s not the publication, so it seems, of the sort of material which we’ve ever made illegal. That doesn’t mean that one has to agree that Wikileaks should have done this, served the public by doing it, or that we even know what’s in the material.
One of my concerns for example, it’s non-legal concern, but one of my concerns is that when you have 92,000 documents that it’s more likely than not that—when all of them are classified by the way, although at a relatively modest level—that there may well be some material which could be genuinely harmful to national security. I don’t get any confidence from the people at Wikileaks that, that is much on their mind at all. But at this point at least, I don’t see any legal impediment to them publishing what they did and the only legal problems I can see them running into right now in this country relate either to a.), how did they get the information and b.), are they going to be asked by some Grand Jury to reveal who their source was for the information? Of course, to do either they'd have to be here. They'd have to be in the U.S. They'd have to be transported here in some way, and that could be very difficult.
I find it really disturbing that they really, on the one hand, have this great passion for revelation of secrets which is their raison d'etre, that’s why they exist, that’s what they believe in but I find it disturbing that they don’t really seem to accept the proposition that there are some materials which, if published, can do harm. I mean, remember when the New York Times published the Pentagon Papers in 1971 which was a time of grave turmoil, the war in Vietnam was on. These papers disclosed a historical record of duplicity by the U.S. government and becoming involved in Vietnamese conflict. That the person who gave it to them, Daniel Ellsberg did not give every volume to the times. He withheld three that he thought were especially sensitive since they dealt with negotiations to end the war.
And when the Times published, they didn’t publish everything he gave them because they thought publication of some might do harm to national security. I would feel a lot better of Wikileaks if I thought that they took such matters seriously into consideration.
Question: Is it treason?
Floyd Abrams: I don’t think their could be a treason prosecution but anyone in the government who made this material available could be charged with one or another crime. They certainly violated some law with respect to the distribution of property not belonging to them... in fact there was one stolen property for example—stolen property claim, criminal claim—brought against someone in rather similar circumstances. There are other charges as well which could be brought, and it wouldn’t shock me actually for the government to follow this up very seriously. Because even though outsiders don’t really know yet how greviously any element of national security has been breached it seems to me that, that may well be the case. But that in any event, you know, a person who works for the U.S. Government that releases 92,000 classified documents is necessarily at risk of criminal prosecution.
Question: Which five cases have most shaped our understanding of the First Amendment?
Floyd Abrams: Well, let me offer my five, people can disagree on which to pick.
In no particular order, one of their great cases was called Cantwell vs. Connecticut. And that’s a case in which a member of the Jehovah Witnesses was walking on the streets in New Haven, Connecticut, with a phonograph apparently battery-operated, even back in 1940. And he’d ask people, “Do you want to hear something?” And then he would play some really rather vile accusations against the Catholic Church. He was arrested and convicted of breach of the peace. The case went to the Supreme Court and the Supreme Court, acknowledging how offensive the material was, basically said, “In the realm of religion, this is an area where people disagree in errantly disagree with very, very deep feelings. Very often angry feelings.”
"And in this country," the court said, "which is a country of immigrants and a country of freedom for all sorts of different religions, we have to be especially careful not to crack down on, not to let the Government crack down on people even when they say things that many would think to be outrageous." Another this way has been summed up is that we have no blasphemy in America. We have no heresy. These are not legal concepts at all and so people are absolutely free to say what they want about religions as well as lots of other subjects.
A second case is sort of the flipside of that in a case called West Virginia School Board against Barnett, decided in 1940. The question also a Jehovah Witness case, was whether the school system could require kids in public school to salute the flag. This was at a time at the eve of war, in fact it was 1943, excuse me. It was during World War II and the West Virginia School system—I’m sure like most school system in the country—required all the kids to salute the flag. A Jehovah Witness child took the position or her parents did that it was contrary to their religion to require the flag salute, and the Supreme Court in the middle or World War II wrote an opinion, eight to one vote, saying that freedom of religion does go that far. That the government even during war can’t compel a flag salute, and in more recent days of course we’ve had cases saying that government can’t make it a crime to burn the American flag as part of our general protection, our freedom of conscience.
Then there are the free speech cases. The ones that come to mind for me most are these" One case in 1919 called Abrams vs. United States, no relation to me, but a case in which socialist speakers who were against World War I, and during the war said so publicly—and said anti-capitalist things publicly, and said in effect that the public shouldn’t support the war—were indicted on espionage charges, were convicted and the Supreme Court upheld the conviction. The Abrams case is a great case not for that reason, it’s a great case because the dissenting opinion of Justice Oliver Wendell Holmes joined by Justice Brandeis was one of the great statements in American history of why we protect free speech. And in that case why it should be protected there. "We rely," Justice Holmes wrote, "on the marketplace of ideas to deal with what we may think of as bad speech."
Holmes said "It’s perfectly logical for people when they think other people have bad views, inaccurate views, dangerous views, to try to suppress them." But he wrote, “That’s not our way. The law can’t allow that. The First Amendment can’t allow that except in times of greatest national crisis where the speech itself threatens to do enormous harm to the public.”
That opinion, Holmes’s opinion and Abrams' would later become the law, and that was true also of other descending opinions of Justice Holmes and Brandeis, Brandeis and Holmes. And they’re well worth recognition that’s why they’re on my list of five.
I’d add New York Times vs. Sullivan. New York Times vs. Sullivan was a libel case brought during the Civil Rights revolution in the late 1950s, early 1960s. It was a libel case toward the New York Times for publishing an advertisement put in by Civil Rights organizations and people involved in the Civil Rights movement. Dr. Martin Luther King was in prison in Birmingham then and the Times published an ad called, “Heed Their Rising Voices.” And the ad denounced the system of justice in Alabama at the time. And a lawsuit was brought by the sheriff saying, “Not only did you get certain things wrong but wrong about me. I didn’t do this and I didn’t do that. I didn’t do that.”
And the case ultimately there was a judgment against the Times. Indeed there were so many lawsuits in the early '60s against the New York Times, CBS, Time Magazine—what were then the leaders of the national press in America—so many lawsuits brought in the South that it seemed impossible to continue to keep covering what was going on there. And that was exacerbated by the fact that while truth has always been a defense in libel cases in America that white southern juries in those days simply wouldn’t listen in situations in which what was being published was critical of the power structure of the segregation system, which had existed and the like.
And in New York Times against Sullivan, the Supreme Court said in effect, when people talk about or write about the people who run things—the people in power, people in government, and later prominent people—when people write about those people they should get more protection than simply the defense of truth which is ultimately a jury decision. They should get the protection of the First Amendment being understood to mean that unless you say something knowing that it’s false or with a high degree of awareness that it’s probably false. Unless that’s what the case is about, well then there can’t be libel liability. And that’s been an enormous protection for the press in particular but also—now that we’re in an internet world more and more—anyone who speaks on the Internet, because everyone is a publisher now in a sense, and they get the protection too.
Finally, there was a case I’ll mention which was the Pentagon Papers case. I was involved in that, and that was in 1971. And it was a case during the war in Vietnam where the New York Times was given access to a very secret study of how the U.S. became involved in the war. A study which showed that one American president after another, going all the way back to the end of the second World War and President Truman and then President Eisenhower and President Kennedy and President Johnson. All these people had permitted... or purposely let the war expand and American involvement expand with the public never really being told that that was going on.
Well the government learning that this very secret—in fact it was designated top secret, which is a very high designation in the classification system of documents—the government went to court and they said in effect, "Judge, keep the Times from publishing that. It doesn’t belong to them. It can harm national security." Indeed the government said it would do grave harm to national security occurring during the war in Vietnam and there was a hearing and there were appeals and the Supreme Court heard the case. And 15 days—which in legal terms is nothing—15 days after the lawsuit began the Supreme Court said: “Our general principle here is no prior restraints, no injunctions against what the press can print. Absent some absolutely extraordinary circumstance in what they’re printing, it really has a high likelihood of doing really grievance harm, imminently to the public or the government in its representative role, vis a vis the public.
And the Pentagon Papers case had real impact through the years. Impact primarily in deterring other Presidents from going to court seeking injections against the press. We would live in a very different country today, very different if the Pentagon Papers case had come out differently. So those five are the ones that I would pick out.
Question: How has our understanding of the First Amendment changed?
Floyd Abrams: I would say that when I was in law school I was sort of enamored with English law and English law wasn’t... basically even now... is much less protective of free speech and more protective of order, order and society than our law is. For example, I thought it made sense then that if somebody was on trial the press shouldn’t be allowed to publish information about the trial until it was pretty well over. Certainly information which could influence a juror, a confession which might not be admitted into evidence. Prior criminal record, for example. I was in some public speaking contests, that I won, in which I was taking the position, in college, that we should move more towards the English system.
My views have changed. They changed pretty rapidly after law school about that as well as the breadth, as I view it, of the First Amendment, for a number of reasons. One is that I got a much better sense of what journalists do. Certainly what they do at their best and the role that they can play. Lots that was published during the Watergate scandal in the mid-1970s couldn’t have been published in England because there were all these trials going on to do with the scandal and a lot of what was published about the Nixon administration could not have been published and would not have been published in England under the English law that I had previously liked so much.
Something else which affected my views and that is that government is not always candid with the public. That we need government and we need it to work, but we need the ability to be critical and the information from which we can be critical of government too. And only under American law is that as possible as it is here. Possible because you really can’t get in trouble here by criticizing government by having documents to back you up, by gathering information. We have a Freedom of Information act here which is not required by the First Amendment but which supplements the First Amendment in a very important way, really based on the notion that the government is supposed to serve the public, it’s supposed to be representative of the public. So that unless there’s a really good reason to keep materials secret the presumption should be that it’s public.
As I’ve practiced law in the area and read books about American history and talked to people, I’ve more and more come to the view that while there are risks and genuine ones of living in a society in which people are so free to say so much with so little risk, that for us a least it’s a much safer system as well as a much freer system because of the openness of our society and our willingness to let people and institutions to have their say.
Question: What is most threatening to the First Amendment?
Floyd Abrams: I think the state of First Amendment law is good in the country. I think the state of free speech is generally good. There are exceptions. But I think that the difficulty, the existential threat to newspapers in the country, is itself threatening of free speech in a different way. I do think newspapers have played a very special role with respect to educating the public, exposing misconduct and the like in a way which no other institution really has matched. And I think that the economic difficulties that the press is having pose very real risks for the public itself. I mean, the public is doing it. It’s not a matter where the government has done something wrong here. The public is obviously free to choose what to buy and what to not to buy and that they’d rather see things for free on the Internet than to buy a newspaper.
But the effect of that I think is deeply threatening to the country as we know it and in the best way. Things change. That’s both inevitable and generally a good thing. But if one of the ways things ultimately change is that we don’t have a vibrant press with respect to the written word I think the public will truly be the loser.
Question: Why did you get involved in the Citizens United case?
Floyd Abrams: The reason I became involved in the Citizens United case—and I represented Senator McConnell in that case and was one of the four lawyers who argued in that case. The reason I became involved in that case was because I thought it was contrary to the First Amendment at its deepest and most important level to limit political speech. There’s nothing more important, nothing, in the speech world then speech about how to vote for and yet the case revolved around the documentary put out by a right-wing group denouncing Hillary Clinton as a candidate for president. Well the First Amendment I know—and I voted for Hillary Clinton—but the First Amendment I know would tell me that’s about as high on the list of protected material as anything could possible be.
And so to be told, well, because it’s a corporation they shouldn’t get protection and they can be basically have that speech criminalized simply isn’t the First Amendment that I think we have. And it is not a good thing also from a social policy point of view for the U.S. Government to become involved in deciding what different organizations created by people, associations of individuals, corporations, unions, whatever can say or not say.
So, for example, for me to compare the Citizens United Case to another case decided just three months later in which Congress had passed a law basically saying that movies could not distributed showing the torture and maiming and killing of animals. A market had been created for that and Congress passed a law saying: “Well that sort of movie shouldn’t be allowed.” The Supreme Court all agreed that the speech there was of absolutely no value at all. They used the word, Justice Alito dissenting, but the majority didn’t take issue with it. The speech had no value and if anything did harm but the court said, “Look we live in a free country and the First Amendment has decided for us that even speech which we think really is bad stuff even valueless speech is speech which is permitted.”
I agreed with that opinion but when I read various organizations, newspapers and the like saying, “Now that’s a good opinion in defending the First Amendment but that Citizens United is a bad opinion.” And I say to myself, “What’s going on here?” The movies of dogs being tortured to death serve no good purpose. At the least they trash society's lessons and indeed that they portray conduct that is illegal in every state in the country. But there we say, “We’ll protect that speech, when it comes to political speech engaged in by corporations unions we'll say they can’t do that.” Well I don’t understand that. I think that is wrong. Wrong as a constitutional matter, wrong as a First Amendment matter, and wrong as a public policy matter.
I mean, if you made me choose in the two cases, throw out the First Amendment now, social policy alone, I would say, well I mean, of course. Showing the murder an maiming of dogs and cats is awful as a social policy matter. Harmful in the sense that the animals might not even be killed for the filming and sale of it, harmful in what it teaches our children. Harmful to everything we believe about humanity so if you made me say, “Well you can only have one.” I would say, “Well at least protect political speech.” If you must throw bad speech over the side, political speech by definition isn’t bad speech it’s what we’re all about. And so by my lights Citizens United was a correct decision. And I find it disturbing that so many people whose views I often share but so many people who think that they are supporters of the First Amendment have denounced the Citizens United opinion.
Recorded on July 29, 2010
Interviewed by Max Miller
A conversation with the legendary First Amendment attorney.
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