Our understanding of the First Amendment is in flux. According to Abrams, these five cases have deeply shaped how freedoms of speech, press, and religion have come to be defined.

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.

Recorded on July 29, 2010
Interviewed by Max Miller