Abrams weighs in on the Supreme Court’s free speech decisions on the non-profit corporation Citizens United’s right to broadcast a film critical of Hilary Clinton ahead of the 2008 election and on the trafficking of commercial videos of dog fighting.
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