Floyd Abrams, "Friend Of The Court"

GUEST: Floyd Abrams, Esq.
AIR DATE: 10/05/2013
VTR: 06/21/13

I’m Richard Heffner, your host on The Open Mind. And once again today (indeed, for the 36th time over the past three decades) my guest — without question one of our nation’s most noted free speech, free press, First Amendment advocates — is Floyd Abrams, whose new Yale University Press book, “Friend Of The Court, On The Front Lines With The First Amendment”, is a simply stunning collection of his brilliantly written commentaries about free speech issues from over the years.

Now, I’m honored that transcripts of two of our many Open Mind conversations together are included in “Friend Of The Court”…though in them – as always – I unquestionably fail to hold my own against this favorite guest’s great skill at argumentation.

Now, I would suggest, of course, that’s because I have an Open Mind, while he is a free speech absolutist.

In his book’s acknowledgements, Floyd Abrams warmly credits … quote … “the sufferance of [his] partners and generations of associates at Cahill Gordon & Reindel [his distinguished New York law firm,] who [he writes] have been subjected to these sometimes changing views over the last four decades or so.”

But I would begin today’s conversation by asking my great, good friend and guest just how his views have changed? I, for one, haven’t noticed.

Floyd, how have they changed? You’re a … I know that this new book about you … Floyd Abrams and The First Amendment … subtitle … title Nuanced Absolutism … written by Ronald Collins … makes you nuanced … you always seemed to be to be very absolute.

ABRAMS: I’ve never been absolute. Not even on this program …

HEFFNER: Stop kidding me.

ABRAMS: No, it’s true, it’s true. Look, I’ve always believed in libel law, privacy law, copyright law, national security laws, all of which are in tension with the First Amendment and all of which live aside the First Amendment.

The question … the repeated question, in my view, is the reconciliation of those other values and the degree to which you take First Amendment or free speech interests seriously enough. But I really don’t view myself as, as an absolutist. As Professor Collins … used the word “nuanced” may, may suggest. And, and my views have changed.

HEFFNER: How?

ABRAMS: Well, there is an essay in there in which I mention in passing that I have supported the Patriot Act when it was adopted.

And … so I did … and I still think some of the elements in it were well advised and, indeed, necessary.

HEFFNER: Do you want to list them?

ABRAMS: Well, sure, the Patriot Act was basically, if you’d remember, sort of sold to us as most of all needing an updating … involving an updating … of certain national security requirements.

For example, not needing a new warrant every time somebody threw away a cell phone and started a new one. Because when the old rules were adopted … every phone, you needed a separate warrant for. And I thought then and now that, you know, that was an appropriate update.

I was also very … as a later essay there shows … very dependent on the fact that there were certain sunset provisions in the Patriot Act, which would require that elements of it did not continue unless they were re-instated as it were, or re-adopted. Too many of them were.

I mean in an emergency I think it’s appropriate to try to take emergency actions. But I think as we see … would be revelations about the degree to which one section … Section 215 of the Patriot Act has been used as a basis for a more pervasive NSA scrutiny of the American public on their telephones, of and need have been required by the Act that, you know, I, I think we need something new now.

But in any event, you know, I’m not just in favor of that law and my views have changed on libel law … I didn’t have such firm views, really, except that New York Times versus Sullivan and the great protector of the press and of free expression was a great idea, a great concept and still is … but whether we ought to have ways to try to find a mechanism for someone falsely accused, but who does not … who cannot prove actual malice, saying something you knew wasn’t true, or suspected wasn’t true … one of my speeches deals with that, with that notion of, of trying to find maybe a declaratory judgment way, a way to, to get a court to issue some sort of … ah … statement that such and such wasn’t true. But, you know, I’m, I’m … I think I have always been open to that, that …those sorts of changes, amendments … but not big time amendments to the First Amendment.

HEFFNER: But all this give and take, all this nuanced willingness, how does that conform to what you’ve said to me so many times at this table, “Dick, remember, it says NO law, Congress shall pass NO law …

ABRAMS: Right.

HEFFNER: … it …

ABRAMS: … Well, I … I’ve always thought that ought to have at least some persuasive impact, as, as we interpret the First Amendment.

I mean obviously no law has never meant to take my earlier examples that we won’t have libel law. Now Justice Black thought that no law should mean no libel law either.

There are historical, historically vindicated limitations, you could say, on free speech. Libel law is one of them. But we try to reconcile the, the free speech interest with the saved reputation interest by essentially making it really hard for someone who sues, particularly a public figure or public official … really hard for that person to win.

But not impossible. And so we provide less strong libel protection and much stronger free speech protection here than in England, Canada, and most other freedom loving countries in the world.

HEFFNER: So that’s what the “nuanced” …

ABRAMS: Yeah …

HEFFNER: … really comes from.

ABRAMS: Yeah, I … right … I, I mean what, what Professor Collins focuses on in part is that I, I have tried in some cases to try to establish the propositions that in certain areas, speeches, either truly … absolutely protected or all but absolutely protected.

For example, telling the truth about a public official in the course of his or her public duties. I thought that that was a line one could try to draw either as a, as an absolutely firm line of protection in all cases or if not that, so close to that, that it would provide enormous protection.

And I, I did argue that in a case called the Landmark Communications Case where a … a state had a law basically saying you can’t report about a secret proceeding about the competence of a judge, a sitting judge, until there’s a finding made of probable cause that the judge might have done something wrong … because we want to encourage people to make charges and we want to protect the judge’s reputation if he’d done nothing wrong.

A Virginia paper published an article revealing that the judge was, so to speak, “up on those charges”. I argued to the Supreme Court … he shouldn’t go beyond the general proposition that if you tell the truth … which this was … the judge has been charged with misconduct …and they’re looking into it … if you tell that truth …that the state has no business saying that in the service of some other interest the judge’s reputation … if he’s innocent … that you can’t print that.

And, and the court did not say quite that … it, it certainly went very far down that road and it has, too, with the identification of rape victims … you know, accurate recitation of the identity of, of a person that asserts that she or he was a rape victim … that it would take an enormous interest … public interest to overcome the general proposition that when you tell the truth about something, you, you shouldn’t be in trouble.

And, and I have tried to … in the course of my practice, speaking and teaching, to try to establish or help to re-establish lines like those to try to provide a pretty wide free speech zone.

HEFFNER: It’s the concept of general proposition … quote/quote … that, that gets to me when I’ve been up against so many times in particular legislation or particular approaches in our discussions … ah, the … what does it say, it says “Congress shall make no law …”

One of the very, very interesting points among so many others, Floyd, at the very, very end, the last paragraph of your book, you write “One of the oldest of all political observations is that where you stand depends upon where you sit.”

And I wondered whether that’s as cynical a proposition as it first strikes me?

ABRAMS: Ahem, I mean there is a level of cynicism in it. There’s also a high level of truth in it.

HEFFNER: Those two do go together.

ABRAMS: They often do, they often do. I mean sometimes it’s just too easy to be cynical and, and cynicism is just a substitute for thinking. But, but they often go together.

HEFFNER: But here do you want to say anything more about this particular …

ABRAMS: Well, as, as you recall … in the very paragraph I really wind up with a notion that I care very much about, which is, is the general proposition that it really shouldn’t been too much to expect that people support, in a full throated way, the free speech rights of people with whom they differ.

But that, that doesn’t come easy. It’s counter-intuitive, it doesn’t … you know, it takes a lot for, for people to really mean it when they mouth that cliché sounding line now. I mean when Oliver Wendell Holmes, no less, talked about, you know, freedom for the, for the speech that we hate. It’s easier to say it than to mean it. And it asks a lot of people and it asks a lot of a country to really do that.

But I think because of the First Amendment we have been quite good at that. I mean we’ve had our bad times, but, but, as a generality and right now, I, I think we’ve been quite good at vindicating, protecting rights to awful, awful speech that no one else in the world would think of protecting. And that that’s all to the good.

HEFFNER: That’s what I was going to ask you, but you answer … “that’s all to the good.” But coming back to this question of, of cynicism … couldn’t one interpret this as … well, I thought of it in terms of your being a lawyer … a very distinguished and accomplished lawyer. That the words you speak in court, where you stand, depends upon where …

ABRAMS: Well, that … yeah …

HEFFNER: … the law firm …

ABRAMS: Oh, sure.

HEFFNER: … let’s you sit.

ABRAMS: You have clients.

HEFFNER: Yeah.

ABRAMS: You are supposed to, obliged to zealously defend their interests. And I do my very best in doing that. This book contains almost nothing I’ve said in court … I use one as a bemused example of losing a big copyright case.

But, what, what I say in court as would be true of any lawyer … and certainly any good lawyer … is what I think within the rules of, of the game as it were … are most likely to persuade a judge or a jury to vindicate the rights of my client.

That, that’s the role I play. That’s not the role I play when I teach. That’s not the role I play here, right now and that’s not the role I play in any of the essays or articles that I’ve republished here.

HEFFNER: You once said, I forget what the subject was … we were talking about maybe lawyers and unpopular causes …whatever. You were commenting negatively about what some lawyers had said in terms of their clients. And then you said to me … “He’s not supposed to be talking this way, why are you listening to him, why are you listening to a lawyer who appears on television?”

ABRAMS: Yeah. No, I remember a case I had in the Supreme Court where I represented a guy on death row in Mississippi on what you could call a technical issue … except that he would have died if we hadn’t won the case.

HEFFNER: Pretty technical.

ABRAMS: Right. Right. It was about the Miranda rule and its application to him, etc. And that was all I’d really thought about on the case. And the argument ended and I got a call from a Gannett newspaper in a small town in Mississippi where the crime had occurred.

And that the reporter said, “Do you believe your client killed the policeman?”

And I’d never thought of that. Never thought of it. And I started to say … “I, I was doing the Constitutional case … I wasn’t doing whether he …” and I thought I, I can’t do that. I was a lawyer. And I said, “No, he didn’t kill the policeman”. Well, that … that’s what I thought my appropriate answer in the role that I was playing at, at that time. Indeed, the role that I was playing out of court … something lawyers now more and more either are obliged to do or think they ought to do or some lawyers enjoy doing. But, I mean that’s me and my role as a, as a lawyer.

The New York Times published an article once I wrote … not in this book … it’s not about the First Amendment, called “Why Lawyers Lie” … that wasn’t my title. But, but I, I remember writing that when Alan Dershowitz speaks about a client … you have to understand that’s not the Alan Dershowitz you think you know. That’s not Professor Dershowitz from Harvard, either. That’s a lawyer speaking for a client. So beware.

HEFFNER: Floyd, that happened to have been the title because we took it right from The Times story … I took it from The Times story … of a program we did.

ABRAMS: Yeah, yeah.

HEFFNER: What did you learn … this sounds like a Charlie Rose question and I don’t say that to complement myself or the opposite … what did you learn in writing … putting together the book.

ABRAMS: I … it was really an interesting experience for me. First to go back to jokes I told 30 years ago. And what I thought was funny then. To do the very little editing I did … occasionally to take out, you know, a nice word about someone I later criticized, just because who needs the pain and suffering of having to explain, etc.

But, (laugh) what I think I learned most how often I had spoken about and how much I, I really have cared about through the years … maybe more now … but, but through the years that proposition that we started speaking out of a few minutes ago.

That the First Amendment is not a liberal First Amendment it is, it is … it has to be an across the board one and we have to support it whether or not we care for or appreciate or think there is any validity to the speech that is at issue. And again, that’s very easy to say … I, I just think it needs to be said.

HEFFNER: But how can you say it, and do it when you, yourself, talk about exceptions. Now there not many, but there are exceptions.

ABRAMS: Well, sure. Look, we live in a world with competing interests and competing values and speech is not the only value.

HEFFNER: But then why isn’t that fair game or a fair argument …

ABRAMS: Yeah?

HEFFNER: … when you are opposed to those people about whom you say and have written “Look Whose Attacking The First Amendment Now”.

ABRAMS: Because I think what they’re prepared to give up is very much at the core of the First Amendment. What, what I object to most in their view or willingness to express views on this issue is that even political speech … which everyone has always agreed with the core of the First Amendment, even political speech about who to vote for, which is the super core of the First Amendment can be overcome on the basis of other values and interests. And that is an area in which my views are all but absolute.

That, that … my golly, I can’t think of an interest that I would let trump the right of people to speak out about who ought to be President. Period.

HEFFNER: But then why are you so negative about poor non-lawyers like myself who look at the Constitution, as a historian, and say, “There is the primary, the principle concern with the Constitution, the general welfare of the American people.”

ABRAMS: Why? Because it’s so loose, it’s so vague, it’s so subject to your own political predilections at one moment or another that it offers almost no guidance at all and viewed … if you were the state … it would give you complete authority as occurs in most countries in the world to, to void or punish or prevent this speech or that because it wasn’t in your notion of the general welfare. The, the First Amendment teaches a different story.

HEFFNER: It says, “No law …

ABRAMS: It says we can’t trust the government to make these decisions. Period. And then, of course, yes there are exceptions and there are hills and valleys … life ain’t easy. But we know at least what the general terrain is because we have a First Amendment.

HEFFNER: Are you taking an oath now that you will never again say to someone, “Hey look at the Constitution … did you …

ABRAMS: No.

HEFFNER: … see what it said, “No law …”

ABRAMS: No.

HEFFNER: … Congress shall pass No Law …

ABRAMS: Not, not.

HEFFNER: … one that you and I can agree upon.

ABRAMS: Not at all. The fact that it says “No law” is relevant … not, you don’t throw it away because you have your own notion of what the general welfare is. The fact that it says “No law …” means how important that that … those values are, that are part of, that were the cause of drafting the First Amendment. That level of concern about governmental involvement … not to say control … over speech. Got it?

HEFFNER: No, Floyd. No.

ABRAMS: (Laughter)

HEFFNER: I’ve got it perhaps, but …

ABRAMS: (Laughter)

HEFFNER: … I would throw it away.

ABRAMS: (Laughter)

HEFFNER: Floyd, once you said on the program, I don’t know how many years ago … talking about First Amendment cases … you said something line if they’re going to bring it, they better bring it soon because the Court is moving in a different direction. What about the present Court?

ABRAMS: Ahem, I would say it’s moved back. That, that it …

HEFFNER: How come?

ABRAMS: … as a long term prediction I was wrong. How come? I think the reason is that Conservative intellectuals have discovered the First Amendment … that, that …

HEFFNER: As a tool?

ABRAMS: Well, we all think of it as a tool in a way. Ah, ah … I think what happened is that a series of issues arose and which Conservatives started to think “We should be able to have our speech” protesting around abortion clinics. Commercially oriented speech … campaign finance cases … and they found …

HEFFNER: You brought it up …

ABRAMS: And they found themselves again and again quoting from Justice Black and Justice Douglas. They found themselves writing and, and sort of living intellectually in, in the free speech rhetoric and hopefully reality of, of those great Liberal Jurists of the past. And so we get to a point now where, when, you know, people protest … say outrageous things … outside a funeral of a dead American solider … that, that he deserved to die because the US is too soft about gays. And by an 8 to 1 vote … think of it … an 8 to 1 vote … the Supreme Court says that’s protected speech … because they … the commentary about gays is protected under the First Amendment. Wow. Now that would not have happened 25 years ago, I believe. Certainly wouldn’t have happened when I was in law school … much more than 25 years ago.

HEFFNER: Is that why then so many of the cases that you’re taking up now are argued on free speech terms?

ABRAMS: I, I can’t put it that way. I mean I’m probably retained because someone thinks I can persuade the Court …

HEFFNER: You can pick up that argument.

ABRAMS: (Laugh) … the term … so, I can’t say … you know … I, I made it up or anything. But it is true that, that there has been a very expansive reading of the First Amendment by this Supreme Court and much, much more so than I … but that, you know, First Amendment scholars … real scholars … not me … thought would happen. And, and that’s because I think we’ve had this, this range of cases to come up … one after another in different areas and, and the Court … again there are exceptions to this. But, but the court has taken a very broad view of the First Amendment.

HEFFNER: Well, Floyd Abrams, it’s been led there by none other than my favorite guest. Thank you again for joining me on The Open Mind.

ABRAMS: Thank you.

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

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.

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