Where Does Freedom of Speech End?

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.

Recorded on July 29, 2010

Interviewed by Max Miller

The U.S. has an "astonishing" and "breathtaking" degree of freedom for people, organizations, and institutions to have their say. Abrams talks about where this freedom meets its limits.

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