Why Watergate Couldn’t Have Happened in England

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.

Recorded on July 29, 2010
Interviewed by Max Miller

Abrams' initial interest was in English law, which is less protective of free speech. As he learned more about the role that journalists can play at their best—and about the need to be critical of government—he became more enamored with the First Amendment.

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Caplan & Horowitz/arXiv

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