Unlimited Free Speech When Money Talks?

GUEST: Floyd Abrams
AIR DATE: 10/17/09

I’m Richard Heffner, your host on The Open Mind.

And my guest today – as frequent viewers well know – has joined me here time and again over the last quarter century and more.

To be sure, we STILL don’t agree on some important priorities, though I know that increasingly I hesitate more about rejecting HIS seeming eternal verities than he does MINE!

And that’s probably because I wonder ever more and more
whether my friend Floyd Abrams, America’s preeminent First Amendment attorney, could possibly MEAN increasingly these days to summon up free speech, First Amendment arguments in defense of corporations as well as individuals, in defense of Standard & Poor’s questionable credit ratings that many believe did so much to take America on the road to financial collapse, in defense of giant corporate contributors to and manipulators of American political campaigns, in defense of Big Tobacco’s addiction and death dealing merchandizing techniques…unless he simply knows something I don’t.

We BOTH know, of course, that money talks, but my question to Floyd Abrams remains: must it enjoy seemingly unlimited free speech?

Could that possibly be what the Founders meant when they proclaimed that “Congress shall make no law…abridging the freedom of speech, or of the press…”?

Or what the very preamble to the Constitution meant in pledging the People of the United States to “promote the general welfare”.

Indeed, I would first ask Floyd Abrams whether he appreciates the real unease many of his former free speech comrades-in-arms feel at his use now of the First Amendment to defend corporate interests as if they were the equivalent of individual Americans’ right to speak freely.

As The New York Times editorialized just the day before we taped this program, “The Founders of this nation knew just what they were doing when they drew a line between legally created economic entities and living, breathing human beings.” That’s really putting it to you, isn’t it, Floyd?

ABRAMS: Not really. That’s what they think. They, they sometimes forget that they’re a corporation. But, but … that’s, that’s what they do.

HEFFNER: That the Times is a corporation.

ABRAMS: Yeah.

HEFFNER: But you didn’t …

ABRAMS: We have lots of corporations that I’ve represented through the years of which you have approved. You happen to disapprove or think that it is unworthy to give First Amendment protection to other sorts of corporations.

Take the case now in front of the Supreme Court. I don’t understand how my friends with whom I have generally agreed through the years could possibly think, possibly think … Amendment

HEFFNER: Oh, I hear it now.

ABRAMS: … that it was appropriate to criminalize …

HEFFNER: Oh, come on.

ABRAMS: … well that’s what happened. A movie about Hillary Clinton … made and ready for distribution during the political campaign in which she was seeking the Presidency? And because of the Federal election campaign laws … on the face of it that movie, if shown on television, at least … would, in all likelihood, be a crime.

Now I don’t understand what’s hard about that case. I understand the discomfort people feel about certain types of corporate speech which I’m glad to talk about.

But as a starting point, the case now before the Supreme Court is one which does seem to me ought to command the support … the First Amendment side … of all the normal, usual allies of the First Amendment. But they don’t. And I think that’s, that’s a very sad, sad recent development.

HEFFNER: Why don’t they, Floyd?

ABRAMS: Because … because of reform or regulation, if you will, but … however you put it … has commanded so much support within … I don’t even want to say just the Liberal community … the “intelligentsia” community … the opinion-makers …

HEFFNER: Limousine Liberals.

ABRAMS: No, no … people, people I’d like to hang out with … intellectually. Because they care so much about trying to make the political system better, as they see it. That they refuse even to acknowledge that there’s a very major loss of speech involved in their activities if they prevail.

I mean, again, this case isn’t a made up case. This is, this is a real case … on, on the face of a federal statute in effect and honored and supported by all the … my usual … or my old friends, anyway … it’s a crime to put a movie on television partially funded … indeed, funded almost at all … by a union or a corporation if it endorses, supports or opposes the election of somebody within certain time limits.

HEFFNER: How can that be?

ABRAMS: Election speech. Of all the speech in the world, one would think … speech about elections, about who to vote for or this Right Wing group that put this movie together … who you should hate, or who you should never want as President. What, what could be more at the absolute core of the First Amendment than that?

HEFFNER: Floyd, let me ask you … as the cleverest lawyer I know …

ABRAMS: Uh, oh.

HEFFNER: … what language would you use to combat that Abrams question of “would you criminalize” a film … producing a film or distributing a film about Hillary Clinton? Is there something short of “criminalizing” that would enable the government, would enable our legislators to prevent something from happening that they think goes against the public interest?

ABRAMS: Well, in that area I would say “no”. I would say that … I mean there are competing interests, for sure. But speech about elections? Speech about … take the film … as the film-makers argue it’s not … but take the film as direct advocacy to oppose Hillary Clinton’s then quest for the Presidency.

No, I don’t’ think there’s anything the government should have the power to do to prevent that film from being shown.

HEFFNER: Is something less than criminalizing …

ABRAMS: Anything. A fine. A, a … I mean … in, in the area of libel law, for example. It’s not … we don’t criminalize libel law in America. Nonetheless, even though the penalty is civil … it’s, it’s a state imposed penalty … a libel judgment and because of that, the Supreme Court in 1964 said … that there was a very strong First Amendment interest which had to be accommodated.

HEFFNER: What other interests are there that concern you? There’s First Amendment. There’s good food. Good medical care, etc.

ABRAMS: What other interests?

HEFFNER: Yeah. There must be.

ABRAMS: Is there a national security interest? There are privacy interests? There are a, a interests which are … I would call primarily “moral”.

The Supreme Court’s about to hear an argument in a case in which the question is, “is a Federal statute that bans the showing of movies and other depictions of cruelty to animals …

HEFFNER: MmmHmm.

ABRAMS: … Constitutional?” And there’s no doubt that all fifty states have passed laws designed to protect animals against cruelty. That interest has to be weighed in some way against a quite strong First Amendment argument which, which prevailed in the lower court … so there are all these competing interests.

But the fact that there are all these competing interests is one of the things that leads me to say, “We have to start out with the notion that it, it better be a very, very strong competing interest which can trump the level of First Amendment protection and, and the intensity of the, the needs of, of free speech …

HEFFNER: And you …

ABRAMS: … in particular areas …

HEFFNER: … and you …

ABRAMS: … so, so, for example …

HEFFNER: … you wouldn’t so describe our concern about the electoral process as overwhelming …

ABRAMS: I, I wouldn’t … I wouldn’t say that it overwhelms … I don’t think it should overwhelm the right to free speech about who to vote for. No. I don’t.

HEFFNER: Free speech about …

ABRAMS: Free speech about who to vote for.

HEFFNER: Speech about campaigns.

ABRAMS: Yeah.

HEFFNER: Okay.

ABRAMS: Now there are other areas … we give a lot less protection to commercial speech. I think that’s appropriate. Commercial speech being essentially buy-sell, sort of. Advertising, sort of … speech. And so, in that sort of case, a very different sort of balance is struck. The First Amendment wins sometimes. But it loses sometimes. And I don’t think that the societal interest in allowing commercial speech … while real … approaches that of, of the First Amendment interest in allowing electoral speech.

HEFFNER: Well, now our, our … which side of the table is Floyd Abrams sitting on here? I thought you were particularly concerned about the speech … the First Amendment rights of Standard & Poor’s …

ABRAMS: For Standard & Poor’s … speech is not what the courts deem commercial speech. Standard & Poors’ speech is opinions about credit worthiness. That, that sort of speech … similar and for similar reasons … to speech … well, recommending the purchase of a stock … ahh, is not generally deemed commercial speech.

A description of commerce is no less protected by the First Amendment because it’s commerce than a depiction of climate control issues.

HEFFNER: You think that this is what the Founders meant by that noble First Amendment?

ABRAMS: I don’t know if they … you know … if the framers had in mind … in fact we have every reason to think they didn’t have in mind, with any specificity … what, what was covered.

I think they meant to cover opinions … yeah. I think they meant to protect opinions about …

HEFFNER: Corporate opinions?

ABRAMS: Yeah. I, I don’t think they would have cared whether it was a corporation or an individual … as, as I said at the start. We have a lot of corporations that have contributed and many that have not contributed to the public weal. And corporations that speak out … editorially, or otherwise … not, not just media … but corporations that have something to say … a position to take … I think should be fully protected.

HEFFNER: Ah, you say editorially or otherwise. You’re coming back to the point that the Times … the New York Times is a corporation. And you do …

ABRAMS: Yeah. Not, not just the Times. I, I’m saying that we will never live in a country, I think, in which the courts, at least, distinguish between the basic rights of one sort of corporation and another.

They may distinguish, based on the nature of the speech, but not the nature of the corporation. And it seems to me that … well, take … in New York Times against Sullivan … you had not just the New York Times corporation, you had individuals who were there, too. Who were also defendants.

HEFFNER: Right.

ABRAMS: They all won the case, they all got the same protection. And they all … or should … have gotten the same protection. I don’t think the, the form of the entity matters.

Whether it’s a corporation or an individual or a partnership or what, whatever else you want to conjure up. We have some different sorts of speech … as I say we have attached some different level of legal protection to different levels of, of speech.

But I don’t think the distinction ought to be made … and I don’t think it will be made … and it hasn’t been made … that between speech of corporations, as such … and, and speech of non-corporations.

HEFFNER: So we, we reach a point where … I, I was serious before when I’ve said to you … and I’ve said this to you away from this table … I find myself not being more and more moved by your arguments … more and more concerned, however, about them. More and more concerned about the very basic role … in a good society … of opinion. Of free speech. Call it what you will.

But then I’m overwhelmed, Floyd, as so many of your friends are, other than myself … by our social needs, by other needs in our society. You mentioned “privacy” yourself before as a competing interest.

But I mean needs, wants, desires in the public sphere. Regulation of political campaigns so that they, they reflect more what the Founders really meant them to reflect and many other things. Are you not concerned about the use of the First Amendment?

ABRAMS: No, I’m not concerned about the use of the First Amendment. I, I thought you were asking me, and I accept the notion that there is a significant social interest … genuine, non-feigned social interest in having an electoral system that works and a political system that represents the public.

Ah, but for me, I consider it alien to our history and our nature as a free people to say that in the service of that what would otherwise be considered core free speech and free expression can be suppressed, punished, limited in the way that some of our current laws do.

HEFFNER: But I remember once our having a discussion … always about this issue … fundamentally, in which I made some reference to … was it Brandeis’ use of the word “reasonable” in a free speech setting. And you stopped me and said, “That’s the trouble … you picked out that one word”.

How can we address fundamental problems in our society? How would you put your own well-informed body of knowledge, or your, your thinking to these social questions that do seem to come back to the need for regulations?

ABRAMS: Well, let, let’s stay, for a moment … with the electoral system …

HEFFNER: Yes.

ABRAMS: There are two things that come to mind. One is disclosure … a lot of it. I think that … and, and some First Amendment types disagree (chuckle) but I think that it is Constitutional to have a system which, as part of it, requires except in very extraordinary cases the disclosure to the public of not only who’s contributing money, but, but who’s spending it. That’s part of it. And I think that that’s important.

I think public funding of elections … an unrealistic hope right now … certainly on a national level … but public funding is something that … if I had my way, we’d have a lot more of.

We, we have a good deal of it here in New York City. A, a lot of states have it. That doesn’t keep Mike Bloomberg from spending $75, $80 million dollars on a campaign. And blitzing the television networks with one advertisement after another.

But it at least provides some way for his opponents to get out a message. And, and to try to get in front of the public. I think that’s an important element.

Also, I think as we saw in the Obama campaign … last … last a few years ago … that the very fact that a charismatic, appealing candidate, on issues, as well as personally was able to raise so much money from the public … to an extraordinary degree … is a, a sign of the public’s willingness to become involved in political affairs.

And, and I think that that sort of involvement with … where … I mean … what can the public do? Well, the public can get involved on street corners by helping out in a campaign. They can also get involved by contributing, if they have money. Or spending it, if they have money.

And, and I … I don’t think … not on a cynical basis … I don’t think you can just even posit a system in which communicating with hundreds of … millions of people can occur without rather vast sums of money being spent and political campaigns. I think that to, to think of it that way, as some of my friends do … is beyond naiveté … it has nothing to do with the world in which we live. One cannot communicate anymore. Maybe that’s sad reality, but it, but it’s reality.

One cannot communicate without significant sums of money going into the communicative process.

HEFFNER: Because communications is the key. Well, in … back in 1968 when the 20th Century Fund, now the 21st Century Fund, asked Newt Minow to chair a Commission on Money, Television and Politics and I managed that for him … we came up with a report based on the notion of public funding.

But, of course, they could only be the use of public funding and that funding went for the very communications that you are addressing right now. Would you accept that? That the public funds campaigns … that those are the only campaigns … that’s the only campaign …

ABRAMS: That can take money?

HEFFNER: That can take money

ABRAMS: No I wouldn’t, I wouldn’t. I would say that public funding is an additional … an alternative route, but not a substitute.

HEFFNER: You’ve said to me, when we talked about media violence and some limitations, some regulation … you said you, you considered it not that significant that too much had been made about the impact … nothing had been proven or demonstrated about the impact of media violence on our children, etc.

Do you feel strongly enough about the use and misuse of big money in political campaigns to go another step? To make that step? You seem to say “no”.

ABRAMS: No.

HEFFNER: Is there anything that you would … beyond crying “Fire” in a crowded theater …

ABRAMS: Oh sure, sure.

HEFFNER: Like what?

ABRAMS: I mean we limit … first we have whole categories of speech which we … it sounds like game playing … verbal game playing, which we define as “not speech”. We say, for example, that espionage, that perjury, which are speech crimes …

HEFFNER: Hmmm.

ABRAMS: … well, we treat that as “not speech”. All right, we have to find a way and historically perjury has always been a crime, it should be. The fact that it’s words doesn’t in and of itself mean that it’s therefore within the realm of the First Amendment.

I mean the First Amendment has some historical moorings and, and we look to see, as one of the elements of our analysis, you know, what it’s meant in the past. And if this is the sort of speech that, that we’re talking about.

And people can disagree on things like that. And they do. Then we get into the speech … the real speech areas. And yes, there are competing interests and where the courts have gone is to say, “Well, nothing’s absolute and we look to see if there’s a compelling interest in some other social cause or interest and if a statute is drafted so narrowly that it addresses just that interest and no more.”

I think that is a, a diminishment which goes too far. As against speech because I think there are lots of compelling interests and, and it doesn’t satisfy my sense of where the law ought to be …

HEFFNER: So you don’t want, in the present case, you’ve just argued for there to be a narrow decision about the Clinton film.

ABRAMS: No, I’ve argued that there should be a broad decision …

HEFFNER: Yes, I’m saying …

ABRAMS: … in order to protect the First Amendment broadly be, because, in my view, what is illustrated by that case … but only illustrated is a, is a serious speech deprivation problem. And the problem is that corporate and union funds are being banned across the board in the area in which, in my view, there is least room for the Congress and a self-interested Congress at that, but for the Congress to say, “You can’t say that.”

So, in that sort of area I, I am least open to saying, “Well, we can limit speech here … or, or shape it so, you know … for example … opponents of the position that I take on this, say “Well, corporations can use Political Action Committees (PACs) rather than use their own funds.” So the corporate leader, so to speak, can give money, but the corporation can’t.

For me that’s insufficient. I think that ah, ah, in terms of core central free speech principle that, that when you’re in the election area most of all we have to be most careful.

HEFFNER: I’m being told to say “Good bye” and I don’t mind saying “Good bye”, if you promise that we can continue this another time.

ABRAMS: Absolutely. Thank you.

HEFFNER: Floyd Abrams thanks for joining me again today, even though I still think you’re wrong.

And thanks to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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