Where Does Freedom of Speech End?
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: 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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The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?
But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.
What's dead may never die, it seems
The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.
BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.
The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.
As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.
The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.
"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.
An ethical gray matter
Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.
The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.
Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.
Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?
"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."
One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.
The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.
"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.
It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.
Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?
The dilemma is unprecedented.
Setting new boundaries
Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."
She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.
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