Friend of the Court

Friend of the Court: On the Front Lines with the First Amendment

Floyd Abrams
Copyright Date: 2013
Published by: Yale University Press
Pages: 488
https://www.jstor.org/stable/j.ctt32bgfd
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  • Book Info
    Friend of the Court
    Book Description:

    Since 1971, when the Pentagon Papers were leaked to theNew York Timesand furious debate over First Amendment rights ensued, free-speech cases have emerged in rapid succession. Floyd Abrams has been on the front lines of nearly every one of these major cases, which is also to say that, more than any other person, he has forged this country's legal understanding of free speech. Litigating everything from national-security and prior-restraint issues to controversies concerning the law of libel and attempts by local officials to censor art, Abrams has worked devotedly to protect the First Amendment, the "crown jewel" of America's Constitution.

    This collection of Abrams's writings gathers speeches, articles, debates, briefs, oral arguments, and testimony from his entire career. The writings illuminate topics of ongoing import: WikiLeaks, the correctness of the Citizens United case, journalist shield laws, and, not least, the responsibilities of the press. An exceptional writer and a brilliant thinker, Abrams offers a unique perspective on the First Amendment and the unparalleled rights it confers.

    eISBN: 978-0-300-19503-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xiv)
  4. Introduction
    (pp. 1-16)

    Over half a century ago, when I was an undergraduate at Cornell University, I headed the school’s debating team. One weekend we traveled to Montreal to participate in a tournament against a number of Canadian teams. When the tournament ended and we had our final dinner together, I rose to raise a glass and offer a toast, a bit uneasily, “to the Queen.” The leader of the Canadian team responded without a pause: “To the American Constitution,” he said, “with all its Amendments. Especially the First.”

    I think often about that toast. Did our Canadian colleague consider toasting then-President Dwight...

  5. CHAPTER 1 The Vice of Censorship
    • [CHAPTER 1 Introduction]
      (pp. 17-18)

      Censorship comes in infinite forms, and I have offered commentary about it in a wide range of places. In this chapter, I describe a number of actual or attempted acts of censorship that I have addressed or commented upon. First is an introduction I wrote to a book containing over five hundred pages of articles from theNew York Timespublished during the twentieth century describing state censorship of one form or another throughout the world. This is followed by a wide-ranging debate about censorship on and off campus I had with Professor Catharine MacKinnon, one of the nation’s leading...

    • State Censorship
      (pp. 19-24)

      There is a terrible logic to state censorship. Joseph Goebbels understood it well. If free speech and a free press interfere with the ability of a state to act as it pleases, why not suppress the speech and stifle the press? That logic led Goebbels to instruct German publishers in 1937 that their role was “not to inform but to shake up and spur onward” and that they must be “monoform in will” even as they were permitted to be “polyform in expressing that will.”

      The same logic was routinely applied throughout the twentieth century by authoritarian governments far less...

    • The First Amendment, Under Fire from the Left: Debating Catharine MacKinnon
      (pp. 25-41)

      “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The late Justice Hugo L. Black wrote memorably about that proposition: “First in the catalogue of human liberties essential to the life and growth of a government of, for and by the people are those liberties written into the First Amendment to our Constitution.”

      Are those guarantees in trouble? That is the question put by The Times Magazine to two quite different authorities: Floyd Abrams, the prominent First Amendment lawyer, and Prof. Catharine A. MacKinnon, the author of “Only Words” and an advocate...

    • On Fleeting Expletives
      (pp. 42-44)

      Let me start with a particularly disturbing example of censorship, all the more so because it is not only rather popular—censorship often is—but because it has been far too little denounced by people who and institutions that are generally alert to potential First Amendment violations. I speak of the post–Janet Jackson Super Bowl campaign by the Federal Communications Commission against “indecency.”

      I recall vividly when the Supreme Court decided, in 1978, theFCCv.Pacifica Foundationcase, better known as “Seven Dirty Words Case,” a 5–4 ruling written by Justice Stevens upholding a finding of the...

    • Free Trade in Ideas
      (pp. 45-50)

      I appreciate the opportunity to appear here today at this valuable hearing. The topic you have chosen to explore—free trade in ideas—is one which is at the very heart of this nation’s uniqueness in the world. Most countries do not begin to believe that they can or should endure the risk—however slight it might be—of different ideas or what they view as disagreeable ideas; in fact, they easily equate different ideas with dangerous ideas. Our view, as embodied in the First Amendment, was eloquently summarized almost 50 years ago by Learned Hand as presupposing “that right...

    • The Brooklyn Museum Case
      (pp. 51-57)

      It is difficult to believe that the Brooklyn Museum case¹ began as recently as two years ago. Of course, we lived in a different country then. It was not only pre–September 11. It was also a time when Mayor Giuliani was not yet viewed, asThe New York Timesobserved today, as a “civic saint”—nor yet been knighted by Queen Elizabeth. In fact, the Mayor Giuliani who so misbehaved in those days—it was misbehavior—was the one who was then cementing his role as the single most purposefully anti–First Amendment mayor in our history.

      So let’s...

    • A Worthy Tradition: The Scholar and the First Amendment: Book Review
      (pp. 58-67)

      Harry Kalven was a dazzling exception to the rule that lawyers cannot write. Judges who are masters of the writing craft, Jerome Frank observed, author opinions that are “oases in a vast desert of dullness.”¹ The same is true of law professors. Fred Rodell may have been acerbic, but he was not unfair to complain about both the “[l]ong sentences, awkward constructions, and fuzzy-wuzzy words”² that mar much academic writing and “the stuff concealed beneath that style, the content of legal writing, that makes the literature of the law a dud and a disgrace.”³

      Not so for Kalven. Lucid and...

    • Reticence Repealed? Book Review
      (pp. 68-70)

      We live, it seems, in a time of despair for cultural conservatives. Robert Bork’s latest assault on the vices of liberalism—Slouching Towards Gomorrah—is fixated on what he takes to be the baleful legacy of the 1960s. So shaken is Bork by our cultural environment that he proposes a reexamination of the terms of the Declaration of Independence itself.

      Rochelle Gurstein, who teaches at the Bard Graduate Center in New York, is after big game too. Appalled by the world she sees around her, she takes after the First Amendment and the body of case law it has spawned....

    • The First Amendment and the ACLU
      (pp. 71-74)

      The recent denunciation in your pages of the ACLU for representing Nazis in the 1978 Skokie case is both puzzling and not a little discouraging. Written by Jerry Birenz, then the chair of the American Bar Association Forum on Communications Law, the article does not argue that the American Nazis were not constitutionally entitled to march in Skokie or that the federal courts that concluded that the First Amendment protected their right to do so were wrong. Judge Bernard M. Decker’s district court opinion¹ and Judge Wilbur F. Pell’s ruling for the Court of Appeals agreed that there could not...

  6. CHAPTER 2 The United States and the World
    • [CHAPTER 2 Introduction]
      (pp. 75-76)

      One of the most revealing ways to view American First Amendment law is through the prism of the law in effect in other nations. The first three inclusions in this chapter all relate in one way or another to the law in the United Kingdom. The first is a speech I delivered in Guildhall in London in 1984 that compared, somewhat more harshly than I might today, English law to that in the United States relating to free expression and the public’s right to know. My observation then that “[w]hat I seek to do with all my power is to...

    • The Right to Know
      (pp. 77-88)

      Perhaps, by way of introduction, I should tell you what I do for a living. I am a lawyer, although not, I trust, entirely fairly described by Theodore Dreiser’s observation early in this century that “life is at best a dark, inhuman, unkind, unsympathetic struggle built on cruelties and lawyers are the most despicable representatives of the whole unsatisfactory mess.”¹

      A good deal of what I do in my country relates to your country in what may be an interesting way: let me phrase it as candidly as I can. What I seek to do with all my power is...

    • Defending the British Press
      (pp. 89-96)

      3. The ban on judicially imposed prior restraints on publication of information by newspapers is, under American law, all but totally absolute. In no case yet decided has the United States Supreme Court ever countenanced the entry of a prior restraint against publication of a news article by a newspaper. American law on this subject has been aptly summarized by United States Supreme Court Justice Byron White in his concurring opinion inMiami Herald Publishing Co.v.Tornillo, 418 U.S. 241 (1974), as follows:

      According to our accepted jurisprudence, the First Amendment erects a virtually insurmountable barrier between government and the...

    • Through the Looking Glass
      (pp. 97-106)

      English defamation law is under fire. Last July, the United Nations Human Rights Committee expressed “concern” that English libel law had “served to discourage critical media reporting on matters of serious public interest.”

      Later in the year, representatives of 30 non-governmental organizations publicly expressed concern that lawsuits filed against them in London threatened their ability to continue to report on violations of civil liberties around the world. Early in 2009, Illinois and Florida followed New York in adopting legislation designed to protect their authors against English courts hearing libel cases against them. Congress now appears on the lip of adopting...

    • The U.S. First Amendment Tradition and Article 19
      (pp. 107-115)

      For an American lawyer, there is special pleasure in rereading the ringing language of the Universal Declaration of Human Rights and for a lawyer steeped in American First Amendment law there is exquisite pleasure in rereading Article 19. One finds there something that James Madison wanted to put in the Bill of Rights but could not gather sufficient support for—the protection of freedom of conscience, or, as Article 19 of the Universal Declaration puts it, “the right to freedom of opinion.” Madison had proposed the inclusion of language in what became the First Amendment stating (in the stark negative...

    • On American Hate Speech Law
      (pp. 116-122)

      So often has the constitutional protection afforded to “hate speech” by the First Amendment to the United States Constitution been contrasted with more restrictive laws in other democratic societies, that it may be useful to offer a bit of context to the American approach. Consider two recent American cases, in what may seem to be unrelated areas.

      The first is the recent ruling inUnited Statesv.Stevens,¹ which held unconstitutional under the First Amendment a federal statute that criminalized the commercial creation, sale and possession of disturbing graphic depictions of the torturing and killing of certain animals. Seeking to...

    • Looking Abroad for Law
      (pp. 123-132)

      It is a signal honor that your great law school has paid me by inviting me to speak today to those of you in your last moments as students here; to those who made it possible for you to be here in the first place (with special kudos today to all the mothers who made this day possible); and to all those to whom those of you who are graduating have occasionally reported on your lives here—parents, brothers and sisters, other relatives and (to coin a phrase) meaningful associates. As a parent of two law students elsewhere in the...

  7. CHAPTER 3 The First Amendment and National Security
    • [CHAPTER 3 Introduction]
      (pp. 133-134)

      In no area is the clash between the First Amendment and competing interests as difficult to resolve as when the government asserts that national security has been or would be compromised by publication of certain information. The first two articles in this chapter both look back on the Pentagon Papers Case, commenced by the United States against theNew York Timesin 1971 during the Vietnamese conflict. The first (published in theNew York Times Magazine)was written ten years after the case, and the second (published in theWake Forest Journal of Law and Policy)was published during the...

    • The Pentagon Papers a Decade Later
      (pp. 135-150)

      Shortly after 7 o’clock on the evening of June 14, 1971, President Nixon spoke by telephone with his Attorney General. They agreed upon the text of a telex, which was immediately dispatched to the offices of The New York Times in New York. Respectful in tone, its substance was ominous.

      For two days, The Times had been publishing documents included in a detailed, classified Pentagon study, along with articles based upon the study. Now, in his telex, Attorney General John N. Mitchell was charging The Times with having violated the Espionage Act. He called upon the newspaper to halt further...

    • The Pentagon Papers After Four Decades
      (pp. 151-158)

      Forty years have passed since the Supreme Court affirmed the First Amendment right of the press to publish materials from, and articles about, a multivolume top secret study prepared for the Pentagon in the midst of the war in Vietnam about how the United States had come to be embroiled in that conflict. Since the relief sought by the government was an injunction against publication of what had become known as the Pentagon Papers and the ruling was rooted in the “heavy presumption” against such prior restraints on speech, we cannot know how the case would have been decided if...

    • Big Brother’s Here and—Alas—We Embrace Him
      (pp. 159-162)

      There is a moment in the 1962 motion picture “The Manchurian Candidate” that never fails to jar the contemporary viewer. Laurence Harvey, the brainwashed assassin in the film, walks into a Madison Square Garden–like auditorium in which a political convention is being held. A rifle is in his attaché case. He enters disguised as a cleric, walks through the auditorium and then up a series of stairs to a room in the building where he hides and waits for the candidate he is to kill to come within the sights of his weapon.

      The scene remains riveting. What is...

    • The First Amendment and the War Against Terrorism
      (pp. 163-172)

      We meet today at a time unique in our history. Savagely attacked by murderous and suicidal terrorists just over a year ago, our nation—and certainly my city, New York—is only now fully getting back to something approaching normalcy. But there can be no true normalcy in the sense of returning to the world we lived in (or thought we lived in) on September 10, 2001. That world is gone and our new world requires new decisions and some difficult and delicate assessments of the claims of national and personal security vis-à-vis those principles of civil liberties embodied in...

    • Freedom in Especially Perilous Times
      (pp. 173-180)

      My title is a sort of homage to Geoffrey Stone whom we all honor today and whose new work,Perilous Times,¹ as you will hear shortly, is center stage in my own presentation. I was tempted to offer a double, even triple homage today but decided it would take too much of what a law school professor of mine used to call “fancy footwork” to pull off. You all have seen, I hope, Hitchcock’s grand 1945 movie,Spellbound,² with Ingrid Bergman and Gregory Peck, both psychiatrists, he wrongly accused of murdering the former chief of the asylum he had arrived...

  8. CHAPTER 4 Presidents vs. the First Amendment
    • [CHAPTER 4 Introduction]
      (pp. 181-182)

      Presidents of the United States are rarely fond of the press. The press impedes their well-meaning efforts, criticizes them unfairly, and publishes material that harms the nation. So presidents say. So they sometimes mean. And they are not always wrong.

      But usually they are. Viewed through any First Amendment prism, in difficult days even the best of presidents act in disturbing ways vis-à-vis the press. Consider the identity of the presidents who have either sought to have journalists jailed or who have traveled well down that path. John Adams, as noted previously, personally participated in the choice of journalists to...

    • Theodore Roosevelt and the Press
      (pp. 183-190)

      We meet today just a week after a national election. That makes it almost impossible for me not to say a few words about the presidency, the press and our Constitution. We, are, of course, remarkable as a nation—probably unique, in fact—in the degree to which we turn to our Constitution as the protector of our liberties. One of these amendments, of course, is the First Amendment—our protector against abusers of government power who seek to control, limit or punish our right of freedom of speech and freedom of the press. But even that Amendment would not...

    • The New Effort to Control Information: The Reagan Administration
      (pp. 191-203)

      A month ago today, the Reagan Administration publicly released a contract that has no precedent in our nation’s history. To be signed by all Government officials with access to high-level classified information, it will require these officials, for the rest of their lives, to submit for governmental review newspaper articles or books they write for the general reading public.

      The contract will affect thousands of senior officials in the Departments of State and Defense, members of the National Security Council staff, senior White House officials and senior military and Foreign Ser vice offi cers. Its purpose is to prevent unauthorized...

    • Clinton vs. the First Amendment
      (pp. 204-211)

      At 10 a.m. on March 19, the nine justices of the United States Supreme Court walked to their leather chairs, which faced the attorneys before them. On one side of a podium were lawyers for a coalition of civil liberties and computer-industry groups prepared to argue that the Communications Decency Act signed into law by President Clinton last year violated the First Amendment. Standing on the other side, ready to defend the constitutionality of the law, were lawyers for Attorney General Janet Reno and, by extension, President Clinton himself.

      From any First Amendment perspective, it was a depressingly familiar sight....

    • Not So Free Speech in the Bush Administration
      (pp. 212-216)

      I am rarely a fan of any administration in its treatment of the First Amendment. But this administration is something else. Constantly and deliberately, it seeks to limit the dissemination of important information and to criticize, ridicule and often threaten those who do so.

      There is a particularly grave threat now in the courts with respect to freedom of speech or of the press. On Aug. 4, 2005, the U.S. Department of Justice persuaded a grand jury in the Eastern District of Virginia to return an indictment against Steven J. Rosen and Keith Weissman charging both men with participation in...

  9. CHAPTER 5 On Libel and Privacy
    • [CHAPTER 5 Introduction]
      (pp. 217-218)

      Two of the areas in which private causes of action exist alongside the First Amendment (and sometimes in considerable tension with it) are libel and privacy. Among the speeches and articles I have delivered or written about those torts, I have chosen four. The first, entitled “On Libel,” relating to the impact of the great U.S. Supreme Court case ofNew York Timesv. Sullivanon libel law, was delivered in 1986 before a meeting sponsored by the American Newspaper Publishers Association and the American Bar Association. Libel law, I argue, is “quite mad,” protecting neither liberty nor reputation. The...

    • On Libel
      (pp. 219-225)

      I had occasion recently to talk with a distinguished Australian member of Parliament, a lawyer who is their shadow Attorney General—the successor-designate to the current Australian Attorney General when the political situation changes there and the current government is displaced as a result of their failure to gain re-election. He is thus the equivalent in this country of . . . no one, since we tend not to think about such things much until after our elections are over.

      In any event, my Australian friend asked me about the transportability of American libel laws to Australia. He asked me...

    • Sullivan in the Year 2000: Will It—Should It—Survive?
      (pp. 226-230)

      A few years ago, I received an award from the Anti-Defamation League. I was very honored—it’s an extraordinarily effective and important organization, not at all antithetical to the First Amendment, that identifies and combats racist speech—but I did feel just a bit out of place. I remember thinking it was a little odd for me—spending so much of my life doing what might be thought of as pro-defamation work—to be receiving an award from the Anti-Defamation League. Tonight I feel right at home with all of you.

      I wanted to say a few words about something...

    • Be Careful What You Sue For
      (pp. 231-233)

      Pursuing a libel or slander suit has long been a dangerous enterprise. Oscar Wilde sued the father of his young lover Alfred Douglas for having referred to him as a “posing Sodomite” and wound up not only dropping his case but being tried, convicted and jailed for violating England’s repressive laws banning homosexual conduct. Alger Hiss sued Whittaker Chambers for slander for accusing Hiss of being a member of the Communist Party with Chambers, and of illegally passing secret government documents to him for transmission to the Soviet Union. In the end, Hiss was jailed for perjury for having denied...

    • Warren and Brandeis: What About the First Amendment?
      (pp. 234-242)

      A few years ago I represented Random House in an unsuccessful effort to persuade the Supreme Court to grant a writ of certiorari in a copyright case.¹ The plaintiff was J. D. Salinger who had sought and obtained what, in any area of law other than copyright, we would call a prior restraint. It barred the publication of a book about him. Copyright law, for reasons that still escape me, authorizes prior restraints with the same level of casual self-assuredness that doctors prescribe aspirins or Jewish mothers serve what Salinger himself once called “consecrated chicken soup.”

      The award ofany...

  10. CHAPTER 6 Copyright Woes
    • [CHAPTER 6 Introduction]
      (pp. 243-244)

      I’ve had a number of run-ins with copyright law, usually arguing that it should be interpreted in a manner which takes greater account of traditionally recognized First Amendment interests than the law has sometimes been held to require. I’ve urged, for example, that prior restraints be only sparingly available as a response to a copyright violation and that more rather than fewer words should be able to be quoted with impunity. At the same time, I’ve urged that copyright law serves a purpose that is not only societally useful (and legally constitutional) but broadly consistent with First Amendment aims. One...

    • Oral Argument on Behalf of the Nation
      (pp. 245-249)

      Mr. Abrams: Mr. Chief Justice, and may it please the Court. The copyright law protects works of authorship, and President Ford wrote a book which was properly copyrighted. We have never disputed the fact that the book was copyrightable in its totality, and copyrighted. The copyright law also . . . does not protect facts, and it doesn’t protect certain other things as to which we seem not to be in disagreement, for example, government works. It does not protect other information of one sort or another.

      Question: It does protect, doesn’t it, Mr. Abrams, a particular method of describing...

    • Readers Lost in the Nation Decision
      (pp. 250-251)
      Floyd Abrams

      To the Editor:

      There are more than a few blind spots in Roger Zissu’s letter (June 22) about the Supreme Court’s ruling thatThe Nationmagazine infringed copyright of Gerald R. Ford’s memoirs. Mr. Zissu, as counsel to former President Ford’s publisher, Harper & Row, chooses to take issue with your editorial observation (May 22) that the case involved a conflict between “the right of the reader to learn important facts versus the property right of the writer to individual thought and expression.” But it is precisely because the degree of interference byThe Nationwith President Ford’s rights was so...

    • The First Amendment and Copyright
      (pp. 252-262)

      To lawyers schooled in First Amendment law, a statute that permits on its face the “impounding and disposition of infringing articles” sounds like a statute that—do I dare say the words?—countenances book-burning. A statute that so prominently features “injunctions” as a weapon to be loosed upon speech sounds disturbingly like one which is, at best, insensitive to our nation’s antipathy to prior restraints on speech. I do not come here to argue that these provisions of the Copyright Act are unconstitutional, although I will offer a few words later about the promiscuous issuance of injunctions. I simply put...

    • Amending the Copyright Act
      (pp. 263-271)

      Mr. Chairman and distinguished committee members: I appear, at your invitation, to testify in support of the adoption of S. 2370 and H.R. 4263, legislation designed to assure that fair use principles are applied to unpublished as well as published works. I appear to express the concern of and support for this legislation of the American Historical Association, the Organization of American Historians, the National Writers Union, the Author’s Guild, Inc., PEN American Center and the Association of American Publishers. I appreciate your invitation, and am delighted to have the chance to testify before you.

      I have more than once...

    • Theft Is Theft, Even Online
      (pp. 272-274)

      The latest clash about proposed legislation to address the ongoing, massive theft of intellectual property on the Internet has elements both familiar and rare. It is common to debate how far Congress should go in addressing a recognized problem—whether, for example, new copyright remedies should be enforced only by the attorney general or whether individual artists and companies should have more mechanisms to defend their rights.

      What is striking about the current debate, however, is how many critics of anti-piracy legislation acknowledge that a serious problem exists—a yearly loss of hundreds of thousands of jobs and many billions...

  11. CHAPTER 7 Confidential Sources
    • Protecting Confidential Sources
      (pp. 276-285)

      I am pleased to appear today at an event dealing with Justice William O. Douglas with my sometime colleague, Robert Bork—”sometime” because my own teaching visits to Yale are on a once-a-week basis. Some years ago, Professor Bork wrote a most provocative article about the First Amendment in which he attacked very sharply the Holmes-Brandeis view set forth in a variety of post–World War I cases.¹ His article supported the views of those of the all-but-forgotten majority in those cases. Professor Bork’s argument had, as he himself observed in his article, “at least the charm of complete novelty.”...

    • Even Mozambique Wouldn’t Jail Them, but the U.S. Might
      (pp. 286-288)

      This is a sad and ironic moment in the history of free speech—at least in the United States. As soon as this week, two reporters I represent could find themselves in jail for refusing to reveal their confidential sources to investigators looking into who leaked information about CIA operative Valerie Plame. That’s sad.

      What’s ironic is that most other democracies have learned enough from the United States about the critical importance of free-speech protections that they know better than to punish journalists for keeping their promises.

      Americans have taken pride in their nation’s leadership in protecting freedom of speech...

    • Adopt a Federal Shield Law
      (pp. 289-292)

      Chairman Specter and Members of the Committee: It is a great honor for me to have the opportunity to appear once again before this Committee. I’m especially pleased to have the opportunity to do so in order to support the adoption of a federal shield law.

      One of the advantages of being “of a certain age,” as they say, is that you remember things. Or that you think you do. Now that I find myself routinely described by the Washington Post as a “veteran” defender of the First Amendment and in the context of representing Judith Miller (who I will...

    • History, Journalists and the Law in the New Century
      (pp. 293-302)

      When Professor Scherer asked me to deliver this talk, three thoughts occurred to me at once. The first was that in doing so I could fulfill a pledge I made to myself a few years ago. Born and bred in New York, a very blue state, a resident of that state for my whole life, I think it’s healthy, liberating, truly educational for me to visit a red state now and then. So I decided to make a point of it to visit at least one red state every year. Thanks to your invitation, you’re it this year. In fact,...

  12. CHAPTER 8 Citizens United
    • [CHAPTER 8 Introduction]
      (pp. 303-304)

      In no First Amendment case that I have been involved in has the position I have articulated been the subject of more condemnation by most of the press, let alone denounced by a sitting president, than theCitizens Unitedruling. In fact, most of the ruling’s critics don’t accept that it’s a First Amendment case at all. It’s healthy, I suppose, for someone who has generally been treated well by the press to feel more than a bit of public (and most of my friends’) disapproval now and then, but it’s not exactly pleasant. I start this chapter with an...

    • Congress Turns Political Speech into a Crime
      (pp. 305-307)

      The most memorable moment in the senatorial race between Hillary Clinton and Rick Lazio was when the latter strode up to the former in mid-debate and demanded that she sign a document promising to dissuade out-of-state supporters from placing ads on TV during the campaign. If she did, Mr. Lazio said he would do the same, and New York would have an election free from outside interference.

      Ultimately (after the dust settled on the critical policy issue of whether Mr. Lazio had moved too threateningly toward Ms. Clinton), she agreed. Nothing was heard during the campaign from the Sierra Club,...

    • Excerpts from Citizens United Amicus Curiae Brief of Senator Mitch McConnell
      (pp. 308-309)

      As a consequence of FECA’s ban on independent expenditures, corporations and unions are currently subjected to criminal penalties for using their treasury funds to engage in “express advocacy” but are free to engage in “issue advocacy,” subject, of course, to the limitations of BCRA’s ban on electioneering communications. The criticism in some quarters of the Solicitor General’s Office for forthrightly acknowledging in oral argument that the government’s position would permit criminal punishments to be inflicted for the publication of books or the screening of movies funded by corporations or unions is thus entirely misplaced. Congress has already invoked that power...

    • Citizens United and Its Critics
      (pp. 310-319)

      Testifying before the Senate Judiciary Committee regarding her confirmation as a Supreme Court Justice, Solicitor General Elena Kagan summed up in a cool and even-handed manner the arguments she and her opponents in theCitizens Unitedv.FECcase had made to the Supreme Court. The “strongest argument of the government,” she said, “was the very substantial record that Congress put together” demonstrating that money spent by corporations and unions “could have substantial corrupting effect on the political process.”

      On the other side of the case, she recalled, there were “certainly strong arguments,” in par tic u lar “that political...

    • Citizens United and the Brennan Center
      (pp. 320-324)

      Thanks so much for inviting me. I especially appreciate being invited because, as my friends at the Brennan Center know, I do not exactly share their views on the issue which I will be talking about. I was counsel to Senator McConnell in theMcConnellcase and represented him before the Supreme Court inCitizens United, so we’re not exactly in accord on all aspects here.

      So let me start with what may sound like a rather immodest articulation. I think I speak for Justice Brennan in dissenting from the view of the Brennan Center and perhaps most of you...

    • Debating Citizens United with Burt Neuborne
      (pp. 325-334)
      Floyd Abrams and Burt Neuborne

      When theCitizens Uniteddecision was released, many commentators treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.

      That the opinion was based on the First Amendment seemed only to add to their sense of insult. Some dealt with that uncomfortable reality by simply ignoring what the opinion said. When President Obama denounced the opinion in his State of the Union address and elsewhere,...

    • The Devastating Decision: An Exchange with Ronald Dworkin
      (pp. 335-337)

      To the Editors:

      It is distressing to see that so subtle and sophisticated an analyst of the Supreme Court as Ronald Dworkin has succumbed to the all too infectious disease of impugning the motives of those with whom he differs [“The ‘Devastating’ Decision,”NYR, February 25].

      Dworkin vigorously differs with the Supreme Court’s ruling in theCitizens Unitedcase. Not content to rely on his arguments on the merits, he offers two theories to explain how the majority of the Court reached its decision. One possibility, he suggests, and a supposedly “generous” one at that, is that the opinion reflects...

    • Serious Evil, Serious Injury and Citizens United: Interview with Richard Heffner
      (pp. 338-348)

      I’m Richard Heffner, your host on the Open Mind. And my Open Mind guest, for what must by now be the three dozenth time or so, is the distinguished New York Attorney Floyd Abrams, the American legal profession’s great First Amendment advocate.

      Now, back in the 1990s, in one of our many television conversations in which—always unsuccessfully, to be sure—I try and then try again to move my guest just an inch away from what I consider and of course he denies is his free speech absolutism, I quoted from my guest’s brilliant Ralph Gregory Elliott Lecture, “Serious...

  13. CHAPTER 9 Assessing the Press
    • [CHAPTER 9 Introduction]
      (pp. 349-350)

      I have delivered a lot of talks about the performance of the press, generally defending it but sometimes setting forth what I consider serious criticisms of its performance. The first speech in this chapter, delivered before judges in 1980 and titled “In Defense of That Biased, Ignorant, Rapacious Arrogant Knee-Jerk Irresponsible Press,” sets forth a defense of press behavior that I frequently offered in those days. But even before that speech, I had begun to temper my defense of the press with criticism, as the talk I gave at Washington University in 1978 entitled “The First Amendment and Its Protectors”...

    • In Defense of That Biased, Ignorant, Rapacious Arrogant Knee-Jerk Irresponsible Press
      (pp. 351-356)

      I am used to defending what not a few judges and lawyers view as the biased, ignorant, rapacious, arrogant, knee-jerk, irresponsible—add your own adjectives—press. I am even used to appearing before lawyers and judges who might, in confidence and in the dark of the night, say with Baudelaire, “I am unable to understand how a man of honor could take a newspaper in his hands without a shudder of disgust.”¹ I am used to urging upon such audiences that, in Judge Gurfein’s words in the Pentagon Papers case, “a cantankerous press, an obstinate press, an ubiquitous press must...

    • The First Amendment and Its Protectors
      (pp. 357-361)

      I begin my talk with a quotation—one of my favorites—in an area far from law. It relates to language and, more specifically, the difficulty of translating the language of art into the more pedestrian language of lay speech. It is from the great musician Felix Mendelssohn who, when asked to discuss the meanings of his piano pieces “Songs Without Words,” wrote: “People often complain that music is ambiguous, that what they should be thinking as they hear it is unclear, whereas everyone understands words. With me, it is exactly the reverse—not merely with regard to entire sentences,...

    • Judging the Press
      (pp. 362-374)

      Once upon a time, in a world that seems quite distant from this, there existed what was viewed as a golden age of journalism. It was a time in which one editor could describe the role of the newspaper as being that of a “great court in which all grievances are heard and all abuses brought to the light of open criticism.” It was a time in which it could even be said—and was said—that the press “had renewed the youth of the State . . . purified the public service; raised the tone of our public life;...

    • Battles Not Worth Fighting
      (pp. 375-377)

      Viewing the recent television depiction by Sidney Poitier of Thurgood Marshall as he prepared to argue Brown v. Board of Education and re-reading portions of Richard Kruger’s marvelous book about that case, “Simple Justice,” I could not help comparing what occurred in Brown with some recent cases involving the American press. Marshall and his colleagues carefully, cautiously and thoughtfully considered how best to persuade the courts to strike down school segregation. They considered what sort of case would be best, at what time, from what state, with what issues being raised. As they considered these tactical matters, they always bore...

    • On the New America
      (pp. 378-379)

      I was in France last week working on a case. I came home on Sunday to a different country than the one I had left.

      When I left my hotel in Paris to go to the airport in a taxi, my driver turned to me and said, “What is this problem your President has?”

      “Well,” I said, “They say he had an affair with a young woman.”

      “Ah,” he said.

      “And,” I said, “They say that when he was asked about it, he didn’t tell the truth.”

      “Yes,” he said.

      “And,” I said, “They say that when she told him...

    • On Bill and Monica
      (pp. 380-381)

      Years ago, when I was clerking for a federal judge in Wilmington, Delaware, I lived in a house in the country. I had a house cat then. When she caught a mouse, as happened sometimes, she would leave it outside my bedroom door so that when I awakened and opened my door, I was greeted with her gift.

      I think about my cat sometimes when I see or read or hear journalists who have been covering the Clinton–Lewinsky saga complaining about the public reaction to it all—and to them.

      Like my cat, the journalists have thoroughly enjoyed the...

    • Why WikiLeaks Is Unlike the Pentagon Papers
      (pp. 382-385)

      In 1971, Daniel Ellsberg decided to make available to theNew York Times(and then to other newspapers) 43 volumes of the Pentagon Papers, the top-secret study prepared for the Department of Defense examining how and why the United States had become embroiled in the Vietnam conflict. But he made another critical decision as well. That was to keep confidential the remaining four volumes of the study describing the diplomatic efforts of the United States to resolve the war.

      Not at all coincidentally, those were the volumes that the government most feared would be disclosed. In a secret brief filed...

    • Don’t Cry for Julian Assange
      (pp. 386-388)

      The fall of WikiLeaks has come with startling swiftness. A year ago millions viewed it as a vibrant, swashbuckling, hi-tech, anti-establishment revealer of secrets. Now WikiLeaks has suspended publication, and its founder and publisher, Julian Assange, has been ordered extradited from England to Sweden to respond to questions about alleged sexual assaults on two Swedish women.

      The five newspapers to which WikiLeaks furnished hundreds of thousands of confidential State Department and U.S. military documents jointly announced they “deplored” its conduct in releasing the names of vulnerable confidential sources of information.

      There has been much to deplore.

      Earlier this year the...

    • On WikiLeaks
      (pp. 389-394)

      In preparing a draft of what became his great study of the First Amendment entitled “A Worthy Tradition,” Professor Harry Kalven wrote the following: “speech has aprice. It is a liberal weakness to discount the price. It is not always a witch-hunt, it is not always correct to [say that] danger has been exaggerated.”¹

      So with WikiLeaks. When WikiLeaks made public 77,000 confidential military reports from Afghanistan, these reports included over 100 names of confidential Afghan sources of information to our nation, putting them at risk of retaliation by the Taliban. I note in that respect that, as Bill...

  14. CHAPTER 10 Reflections
    • [CHAPTER 10 Introduction]
      (pp. 395-396)

      This final chapter commences with three speeches of a somewhat less combative and more contemplative nature. It starts with one delivered at Harvard Law School in 1998 entitled “First Amendment Near-Absolutism,” proceeds to a second delivered at Yale Law School in 1993 entitled “Serious Injury, Serious Evil and the First Amendment,” and then a third, delivered at Mercer Law School in 2000, entitled “On Thinking About the First Amendment and the Internet.” The first deals with the on-the-ground reality that the Supreme Court, while not quite saying so, has provided the press with legal protection in a number of areas...

    • First Amendment Near-Absolutism
      (pp. 397-406)

      I thought I would start with a few thoughts which arise from the recent hearings over the nomination of Judge Robert Bork to the Supreme Court and some of Judge Bork’s comments after-the-fact about the nature of those hearings.

      You may not be surprised to hear that I, unlike Judge Bork, view the hearings affirmatively—and then some. In fact, I view them as yet another demonstration of the love affair of this country with its Constitution. We may differ about what the Constitution means; we surely differ about how to interpret it. But no one looking at this country...

    • Serious Injury, Serious Evil and the First Amendment
      (pp. 407-424)

      My title today may be familiar to you. It comes from one of the two most sublime articulations of First Amendment faith in American legal history. One of those was Justice Holmes’ magnificent paean to free speech in his dissenting opinion inAbramsv.United States¹—no relative, incidentally. The other, the one which led me to my title, comes from Justice Brandeis’s enduring First Amendment masterpiece, his concurring opinion inWhitneyv.California

      To start this speech on the very highest plane, let me read to you first the passage of Justice Brandeis’s opinion from which my title comes:...

    • On Thinking About the First Amendment and the Internet
      (pp. 425-434)

      Let us turn to a few issues arising in the new legal world of the Internet. It is a world in which our courts have thus far swooned at the new terrain before them. Listen to some of the language of the usually jaded judiciary about the Internet. This was district court Judge Dalzell, inACLUv.Reno, writing of the Internet in 1996 this way:

      “[i]t is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country—and indeed the world—as yet seen. The plaintiffs...

    • Look Who’s Trashing the First Amendment
      (pp. 435-440)

      The First Amendment is under attack. So often have those words been written over so many years that they rarely tell a new story. To repeat them now may suggest a frontal assault from the right—new efforts, say to ban “dangerous books” by J. D. Salinger, Kurt Vonnegut, or Judy Blume in public schools. Or to amend the Constitution to permit states to make it a crime to burn an American flag. Or to limit, as it may suit Jesse Helms’s fancy, federal funding of the sovery-threatening arts.

      But there is news about the First Amendment. It is indeed...

    • Look Who’s Trashing the First Amendment: Interview with Richard Heffner
      (pp. 441-450)

      I’m Richard Heffner, your host on The Open Mind. And I admit that I’d begin to feel more than somewhat intellectually deprived if too much time ever goes by when I’m not joined at this table by today’s guest, renowned constitutional attorney Floyd Abrams, partner in the New York law firm of Cahill Gordon & Reindel, and William J. Brennan Jr. Visiting Professor at Columbia University’s School of Journalism.

      Fortunately, the J School’s distinguishedColumbia Journalism Reviewrecently published Floyd Abrams’ provocative, but not unexpected, article entitled “Look Who’s Trashing the First Amendment.” And I’ve been able to get him back...

    • Speech and Power: Is First Amendment Absolutism Obsolete?
      (pp. 451-452)

      The oldest reality about the First Amendment is this: Hardly anyone really believes that we should protect the speech of those with whom we differ. Justice Holmes’s observation that freedom of speech means freedom for the speech we hate is now so much a part of American popular culture that it sounds more fit for theJeopardyboard than a Supreme Court opinion. But did anyone believe it when he said it? Does anyone mean it now?

      Not, it seems, this generation of liberals. Pleased with a First Amendment that protects radical hawkers of leaflets, they despair of a First...

    • First Amendment Deserves More Than Fleeting Friends
      (pp. 453-456)

      Those who toil in the vineyards of First Amendment law come upon a wide range of temporary allies.

      Liberals fly First Amendment flags in cases in which the right of the press to publish information relating to national security is involved; conservatives retire the colors in such cases. Conservatives march to defend the First Amendment in cases involving limitations on political advertising published close to elections; liberals see only money and not speech in those cases.

      Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN- sponsored...

  15. Credits
    (pp. 457-460)
  16. Index
    (pp. 461-473)