Some Thoughts on Privileges and The Press

GUEST: Floyd Abrams, Esq.
VTR: 12/07/06

I’m Richard Heffner, your host on The Open Mind … and I realize that it must seem strange to some of you that I quite so obviously take pleasure in the fact that I’ve grown so old in the tooth presiding over this weekly conversation, and have, in fact, seen so much of the ebb and flow of history sitting at this table for more now than a half century.

Indeed, just the other day, remembering that we first talked together here on the Open Mind more than a quarter century ago — and actually have done so 30 times since then — I wondered if I invited Floyd Abrams, my distinguished Constitutional lawyer and “First Amendment voluptuary” friend, once again — would he actually share with me whether there are free speech, free press areas of concern about which he’s indeed changed his own mind in all this time, taken on NEWER views, perhaps because they seem now to be TRUER views.

Views about the adversarial system, about libel law, about reporters privilege, something we last discussed just a year ago. Floyd, any changes that we can mark?

ABRAMS: Well maybe I could introduce the answer by saying that I think one of the things that has happened in the years that I’ve done this sort of work … is that we used to win a lot of cases we’re losing now.

I sometimes think that we were winning back in the 1970s and mid-80s say … any First Amendment case where we had a plausible chance of winning. And now we’re losing First Amendment cases unless we have an overwhelming likelihood of winning.

And, and I think that in part is because of a change of public attitude rather than mine say … in part because the judiciary reflects the public attitude. Juries are microcosms of the public. And, and in part, I think, because the Administration in power now, the Bush Administration, is sort of peculiarly and very effectively anti-press in a variety of ways that I think has, has real resonance with a significant part of the public.

HEFFNER: Can you spell that out a little more?

ABRAMS: I think the Administration has been very effective in … to use the over-used word … demonizing the press, and de-legitimatizing the press, in viewing the press … and I speak now even of some of the better people in the Administration … but is viewing the press as … just another interest group …

HEFFNER: Excuse me … who is “he”? Or she?

ABRAMS: Who was the former Chief of Staff of the, of the Bush Administration … he’s been out of office a few months now only … I’ll come up with his name as soon as the program’s over …

HEFFNER: (Laughter)

ABRAMS: … (laughter) … but … you know, he referred to the press as, you know, not some sort of representative of the public …even at its best … but just another interest group. And, of course, the views range from that on … the press isn’t all that venal, but all they care about is themselves point of view. All the way over to the, the notion that I’m sure the Vice President has … and perhaps the President … that the press is not just a bother, a pain, and an irritant … but a danger. And I think that they have gone far at a time at a time of the polarization of our people in general to reading the … what I’ll call the establishment press … New York Times, Washington Post, LA Times, Time magazine … NBC News … whatever … persuading an awful lot of people that those entities are not really much different than say, The New York Post, except the Post is on the Right and they’re on the Left.

I don’t think that’s true. I’m very confident it’s not true. But I think they’ve been very effective in, in persuading at least their own supporters that only what I could call a Fox News view of the world is a, a fair view and that everything else is partisan and, by it’s nature, deliberately mis-leading.

And, you know, while we’ve had Presidents always who, who disliked the press and we’ve had some who’ve been against the press in a lot of ways, of both parties … I do thin that this notion of saying to the public. you know … what Jefferson said, you know nothing can be believed which appears in a newspaper.

He said it out of irritation, but this Administration has gone far towards at least persuading it’s own supporters that they should discount the, the truth of factual stories on the ground that the people writing it don’t like the Administration.

And I think that’s had a very baleful effect on the relationship of the press and the public and on our ability to figure our what, what’s true and what’s not. I mean …

HEFFNER: Well, in all of these conversations that we’ve had here, you’ve always been straight and I’ve never had to discount anything that you’ve said because of, because of the old notion that what you say depends upon where you sit.

Let me ask … straight question … it’s a little bit of a zinger … but how much of this shift is a function of what the press itself has done and said and insisted upon in this past quarter century of so?

ABRAMS: It’s hard to answer the “how much”? Certainly the, the scandals involving the press, and I would say even more, the notion that the public got … not, not because of politicians telling them, of the press as arrogant, uncaring and self-directed, has had a major impact. And I think I’ve said before on this broadcast, one of the things I’ve often thought about is … why can’t the press do a better job in explaining … even touting it’s successes …the good stuff it does.

The Pulitzer Prize winning stories they do. The new York Times winning a Pulitzer … what … last year or the year before … for stories about railroad crossings around America. Why so many people are killed there? Why law suits fail because local communities are pushed by the railroads to go settle these cases, etc. so there’s never a judicial ruling, etc. against them.

I mean, that’s what a story and lots of others … totally non-political in nature … accurate in all respects, honored within the profession, at least for a day … when the Pulitzer’s come out … doesn’t get across for reasons I, I can’t quite articulate … doesn’t get across as a genuine part of what the press does and what often does get across is, you know, preening journalists and arrogant editors and, and there’s not doubt that a lot of that has turned many in the public off.

HEFFNER: Do you think … you haven’t mentioned the nature of the judiciary itself. How much of a fact … I remember … Floyd, it must have been twenty years ago … when we sat here and I asked you about what do you expect to happen now? And you said, “Well, maybe … First Amendment free speech cases should quickly go to the court …

ABRAMS: Yeah.

HEFFNER: … because you saw that in the future the court would be less and less well disposed to the press.

ABRAMS: Yeah. And I think that’s true. I think that the … outside of cases, which one … in my view … has to try to bring to the court, when you have a journalist who’s going to go to jail … say …

HEFFNER: And more and more … that’s true …

ABRAMS: Yes, and more and more of that is happening. And there I think, you know, you really have to think not just of the cause but of the, the journalist herself … as part of the cause …but the individual … herself. I mean that … the person to whom you’re ultimate loyalty goes.

But apart from those sorts of cases, I don’t think there’s been any great appetite on the part of those of us who have represented the press or even more broadly … free expression interests to put before this Supreme Court anymore than we have to. And … so you’ll see … you’ll see advocacy groups like the ACLU sometimes not seek a Writ of Certiorari when they lose … just sort of cutting their losses.

HEFFNER: How wise is that approach in your estimation?

ABRAMS: I think it’s very smart. I mean that’s what Thurgood Marshall did when he was leading the legal side of the civil rights revolution in the forties and fifties, was to pick your case. And, and try to bring the best case up to the Supreme Court; even if that meant not challenging what happened in this state or that state. I think that’s just smart.

But, as I say, there are some cases where I just don’t think a conscientious lawyer can refuse or, or even advise not to …

HEFFNER: When someone is rotting in jail.

ABRAMS: Yes. When someone’s rotting in jail. And, and, you know, there you … you have to do what you have to do. But, but as a general matter, I think, you know, lawyers are using prudence and, and there are more cases being settled now.

HEFFNER: What’s the implication of that? The more cases being settled?

ABRAMS: I think, I think it’s two things. One the media empires, even the largest companies accept those who have no settlement policies … like The New York Times, for example, doesn’t settle any of these cases. But, but a lot of distinguished, important and principled entities do settle some cases in, in the … call it the First Amendment area. I think they’re all in monetary trouble … in terms of making it these days. And they’re all concerned about the reaction of juries. So, you know, you don’t see that many trials, but it’s not just because some of the cases are … go away. Because they’re frivolous and judges throw them out. And judges do that.

It’s also because there’s a disinclination to push the envelope, to test the relationship between the press and the public … by putting your journalist on the stand and having the public represented, so to speak by a jury … make a judgment about “Gee, you know … I don’t view this person as, as doing something for me” … or even it’s good for me.

I mean that’s the, that’s the downside in any event. There are obviously cases where, where the nature of the broadcast, or the nature of the article is, indeed, so pro-public interest that you could really make a smart tactical decision that this is the sort of case that’s worth bringing to a jury.

HEFFNER: But you’re saying that that decision is being made less and less often.

ABRAMS: Yes, yes.

HEFFNER: Is that … is that a kind of slippery slope?

ABRAMS: It can be.

HEFFNER: You keep going down that way?

ABRAMS: Sure. Sure. I mean there’s that danger and the other one I mentioned which is ever present. Of … you know … it costs a lot of money … to have cases. It costs plaintiffs money, too. But, there’s a … you know, tendency to, you know, really want to avoid trouble on the part of a significant amount of American media entities.

HEFFNER: Well, where does the matter of press privilege stand now? I mean we’re at the end of 2006 … where … what now?

ABRAMS: Compete chaos, I would say.

HEFFNER: You mean you can’t identify it?

ABRAMS: I can’t answer in less than six lines.

HEFFNER: Right.

ABRAMS: In our States … 49 of the 50 states now provide some or complete protection for confidential sources. In our Federal courts it depends what part of the country you’re in. It depends if the case is a civil case or a criminal case, or a Grand Jury situation. The press has been getting the most protection in civil cases. And the least in Grand Jury.

HEFFNER: MmmHmm.

ABRAMS: And … so you have a case like the one now pending in San Francisco, in which two sports reporters wrote about the Balco/ Barry Bonds steroids issue. Over and over again. Made an enormous contribution … led to a change in the way major league baseball deals with steroids. Led to Congress saying, in effect, well we’re going to pass legislation unless baseball gets its act together.

All … I would say … just about all, at least, because of the reporting of these journalists … well now these journalists have been ordered jailed because they’ve been ordered to reveal their confidential sources for particular stories and that’s going up on appeal to the Court of Appeals there.

The striking thing about the case to me is what it is not. It’s not a national security case. It’s not a case anybody can say, “Well, look the competing interests are so great that, even if you’re right that there should be some protection here, it’s outweighed by the national security of the public. It’s not even a Fifth or Sixth Amendment case in which the rights of a defendant are involved”.

But in the particular circumstance of that case, there was a court order … a so-called protective order entered. Which may have been breached by a lawyer or someone else by providing certain information to the journalists and it is that interest which is the competing interest there to the need to protect confidential sources. And so, you know, whether it’s … you know … Judy Miller in Washington … or The New York Times telephone records in New York … or the San Francisco Chronicle sportswriters … we seem to have case after case in which the government, in one of its incarnations is saying, “Tell us who your source is” and in which the recent cases have not been coming out well from the press perspective.

HEFFNER: If the San Francisco case or others go to the present Supreme Court, how do you think they will fare?

ABRAMS: Well, it’s, it’s really hard to predict. The court has, thus far refused to take any of the recent cases. But because they are simply one line orders saying “No, we’re not going to take it”.

HEFFNER: You can’t tell what’s …

ABRAMS: You can’t tell if they’re not going to take any of them, or if, as the government has been arguing, this isn’t the right case, that’s not the right case, that’s not the right case.

The San Francisco case may well be the right case. If that’s lost … precisely because of what I said earlier … precisely because of what’s lacking. That it’s not a national security case and it’s not a Fifth Amendment, or Sixth Amendment case, or the right of a defendant to get a fair hearing in the court case. That could be.

HEFFNER: And? What do you think would happen?

ABRAMS: I think that there are some votes on the Court that would be available for the proposition that, that … I don’t want to get too technical now … but, but that there’s at least protection under what’s called Federal Common Law. That the courts are permitted, indeed, encouraged by Congress, to decide what is privileged and what is not in the Federal courts.

In the last case in that area, the Supreme Court said that there is a privilege in Federal Courts for psychotherapists and their patients and social workers and their clients. And that that is so even though Congress never passed a law saying that. And I think that there’s a, you know, a real short a persuading the court that at least in that area there is a level of legal protection not absolute, which would lead the court to engage in a balancing process, to weigh the importance of the contribution of the journalists against the need of the State for the information.

HEFFNER: Leaving it up, not to the Supreme Court, but to a lower court?

ABRAMS: Well, yes, in the first instance. Now, you know … I, I like a lot of others have been chary through the years about wanting courts to make decisions about, you know, what’s good journalism and what’s bad journalism.

And inherent in what I just said is that one is in a way asking that. And, and a few members of the intermediate Federal courts have said … one judge in the Judith Miller case in Washington, wrote a really quite important opinion … Judge Tatel in which he said, “Although in this case I think the government’s interest in national security outweighs any contribution that the Times might have made … (that was odd because, of course, the Times never published a story in the Judy Miller case) … that there may be cases,” and he indicated that there would be cases. He said, “For example, we had pointed out that Judith Miller had written about Al Qaeda and Osama bin Laden before 9/11, really exposing to public view the behavior of that dangerous organization and of him. And he said if the government wanted information about that, it would really take a major showing … in his view …to get it. Because the articles were so important.

In England recently, you’ve had a similar ruling in which the House of Lords said that when a newspaper publishes information which is ahh … serious and truthful, at least in the sense that it accurately reports what people have said, to the newspaper, that that should be protected. Something which our law has long protected, but had not at all been protected under their law. And they’ve gone quite far down the line of seeking to protect important journalism.

HEFFNER: Which raises the question, of course, what’s happening outside the United States?

ABRAMS: Yeah.

HEFFNER: And it’s strange for you to say that about the Brits …

ABRAMS: It is … it’s very interesting. It’s very odd for me to write briefs now in which I used to say, “Oh don’t let us become like them.”

HEFFNER: Right.

ABRAMS: and then, at a different stage in writing in this area, I would say, “My God, aren’t you embarrassed … to our courts … even, you know, Zimbabwe gives this protection and Mozambique gives that protection?

Now I’m saying to the courts … “You know, gee, we’re not asking for something that we lawyers just made up. This is not a sort of ‘gee, wouldn’t it be nice to have another privilege’.” The European Court of Justice has recognized this. The Intra-American Court on Human Rights had recognized this, so, you know, you really ought to think about this seriously.”

HEFFNER: Floyd, we just have a couple minutes left … but I, I, I must say … what you were saying before, as been the source of tremendous anxiety on my part and I’m sure on your part, “the public’s …

ABRAMS: Yeah.

HEFFNER: “… shift in attitude that seems to be the worst part of it all.”

ABRAMS: Yes. Yes, it is.

HEFFNER: Do you think if, if there were a Council … a Press Council again, as the old National press council … some way of the press indicating that it is responsible … it might be of help.

ABRAMS: You know I think that’s probably less relevant now then it, then if once seemed.

HEFFNER: You mean it’s “too late.”

ABRAMS: I, I … I don’t … I mean “yes” I think it’s too late, but, but not because the press is in such disrepute. I mean the press does have trouble, as I was saying … with the public.

But there are other things happening. The Internet. Our youth. I gave a speech at Syracuse University a few weeks ago and I was asked by one student what the single greatest threat … I said “the threat is you don’t read the newspapers. And if you do read them, you think you don’t have to pay for them.”

And, ahemm … and, you know, we, we gotta deal somehow with that. We have to educate our young people. It doesn’t have to be hard copy, I mean it can be on a screen … but … that we’ve somehow got to try to persuade them to read the, the still great newspapers of our country.

HEFFNER: Floyd …give it up.

ABRAMS: (Laughter)

HEFFNER: I mean if that’s the problem that we must face …

ABRAMS: Well, it’s one …

HEFFNER: And I think you’re right.

ABRAMS: Yeah.

HEFFNER: I certainly don’t see any …

ABRAMS: Right. Right. I asked them … they get newspapers free … you don’t even have to pay there on campuses … they’re, they’re stack up.

HEFFNER: And they don’t read them.

ABRAMS: I said, “How many of you read the New York Times?” Well, some hands went up and then some more hands went up. I didn’t even believe some of the hands. (Laughter)

HEFFNER: Well, the answer of my students is, “Where do you get your news about the world around us? John Stewart.”

ABRAMS: John Stewart. I’m afraid they could do worst than that. But it’s unbelievable. I mean truly unbelievable that that should be the case. I remember John Stewart saying to Senator Biden once, when I think … I think the Senator announced he was thinking of running for President, some years ago. And Stewart said, “This is a make-believe program.”

HEFFNER: (Laughter)

ABRAMS: “This isn’t for real.”

HEFFNER: (Laughter)

ABRAMS: But … I mean I do think that, that the Stewart phenomenon is more good than not because he engages in a sort of political commentary. And, and even if they didn’t know the underlying facts, which is what is depressing … even if they didn’t know it … they sort of pick it up. But it’s a very, it’s a very dangerous development.

HEFFNER: Floyd … come back … for the 32nd time and we’ll argue that one …

ABRAMS: Thank you.

HEFFNER: out. Thanks so much for joining me today on The Open Mind, Floyd Abrams.
ABRAMS: Thank you.

HEFFNER: And my thanks, too, to you in the audience. I hope you join us again next time, and for transcripts, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

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.

Produced by THIRTEEN    ©2014 WNET, All Rights Reserved.