The Law … What Americans Can Learn from Others who Learned from Us

Host: Richard D. Heffner
Guest: Floyd Abrams
Title: “The Law…What Americans Can Learn from Others
who Learned from Us”
VTR: 7/8/90

I’m Richard Heffner, your host on THE OPEN M IND, and whenever today’s guest has graced this program, I’ve introduced him somewhat along the lines of “the enormously accomplished and universally highly regarded First Amendment, free speech attorney Floyd Abrams”.

But then I recently watched this brilliant litigator argue a capital punishment case before the Supreme Court of the United Sates, in which, not so incidentally, he won for his impoverished client a unanimous decision of the highest court of our land. And I knew then that “First Amendment attorney” just isn’t a sufficient description of my OPEN MIND guest…that Floyd Abrams is, indeed, a man for all legal seasons, and advocate deeply versed in and devoted to each of the first ten amendments, America’s revered Bill of Rights, and to the whole panoply of our Constitutional interests.

Then, too, I read Mr. Abrams’ insightful May 1990 commencement address at The University of Michigan Law School…and I know that here again this forceful advocate had touched on a subject vital to our national interests, one that must command the attention of all who share his understanding that “The Declaration of Independence is no longer just our revolutionary document, speaking as it now does for the world as well as to it. And that, referring to the incredible recent liberating changes in the East as well as the West, “it is all the more regrettable”, said Mr. Abrams, at the very moment our libertarian values are sweeping the world, we seem to be regressing – in court and out – in much of our behavior to the point that it is now necessary to urge for more than one reason that we should look abroad for guidance far more often than we ever have before”.

Well, better by far, of course, that I ask Mr. Abrams to elaborate on what he seems to be describing as the march forward of other nations’ judicial endeavors and the possible retreat from glory of our own. Mr. Abrams, explain yourself on that matter of looking abroad.

Abrams: One of the things that was striking to me is that so very many foreign countries in their courts and legislatures have looked here for democratic values and for law to apply in their countries. When the Japanese Supreme Court decided a case just last year about the right to take notes in a courtroom, they cited American cases. When the Israeli Supreme Court decided a case about the right to write about the head of their equivalent of the CIA, they cited American cases – Holmes and Brandeis dissents and the like. And it has seemed to me more and more as time has passed that one of our great exports to the world has been our democratic theory and the law which implements that democratic theory. And one of the things that I regret and caused me to give the speech that I did at Michigan is that at this time when so much of what we at our best have had to give the world, and that the world is taking account of…very seriously…we seem to be regressing. Our courts, our public…public opinion…that was what I was really trying to address in my speech.

Heffner: It’s interesting to me that you say, “when we at our best”…are you suggesting that we are not at our best right now?

Abrams: Well, I don’t think we’re really at our best right now, but I also don’t think that at any time we are always at our best. That is to say…I cited a moment ago, dissenting opinions of Holmes and Brandeis…I could as well have said that the law then was that Holmes and Brandeis were wrong, or at least they didn’t have the votes on the Supreme Court. We’ve always had certain darker strains, more puritanical strains, more regressive strains in our life at the same time that we have had a charter of liberty, the Declaration of Independence, and the Bill of Rights of the Constitution. So, to some extent they’ve always been at war with each other. But we have established a body of law, and of democratic theory which have been of enormous import to the world, particularly recently…the outside world now, not just ourselves. And hence my sense of irony and worse that at this moment when people come to Washington to quote Jefferson and Lincoln to the Congress…the new President of Czechoslovakia, for example, that we seem to be paying a little less attention ourselves in our courts and elsewhere to what those people, speaking for us at our best, really had to say.

Heffner: You know, Michelle Mazur, our Associate Producer, had asked me to ask you a question, and I had at the same time developed a question, too. I’m going to put both of them to you. She said…or asked, “Is our judicial system uniquely retreating with respect to the First Amendment”, let’s refer to First Amendment concerns, “or are we just experiencing what the foreign nations who have recently adopted these ideals will someday experience also, the discovery of flaws and a movement away from ideals that possibly aren’t capable of being maintained throughout 200 years”? Fair question?

Abrams: Very good question. And a very hard question to answer. My first answer is that I think that we live at a time of cultural warfare in America. And that that plays a role in the courts as well and in First Amendment decisions of all sorts. We differ so much with each other as a people as to what ought allowed to be said and what, if anything, people ought to be punished for saying and creating. Witness the NEA controversy; witness the indictment of the Institute for Contemporary Art in Cincinnati for the Maplethorpe Exhibition. Witness on a different stage the 2 Live Crew obscenity indictment in Florida. These come from a variety of reasons, but I think one of them is that there is an enormous difference which is…which divides what I would call the artistic community in America from a significant minority of Americans. And this plays into what the courts do sometimes, as well. The courts are not immune, of course, from public opinion. We have had a series of rather conservative presidents who have been appointing more or less…generally more conservative judges and this has an impact too. Now to some extent we have a situation where we still have the greatest First Amendment freedom of expression protections in the world. And anyone looking from abroad at the flag burning ruling, for example, joined by Justice Scalia and Justice Kennedy to the consternation of a right, you know would look, I think, with some admiration at a system that worked that way and a system that was willing to tolerate people who were that abusive and disdainful of the values which tend to hold us together. But I don’t know the final answer to the question of whether, whether looking down the road these foreign countries, which look back, as I said, to Jefferson and Lincoln, are going to find maybe in a few years, maybe more that you can’t live on Jefferson and Lincoln alone.

Heffner: Do you think we can?

Abrams: Ah, no. No. I mean I think you can go a long way though. Lincoln didn’t live on what I mean by Lincoln alone.

Heffner: Right. Precisely.

Abrams: And, you know, one can talk about that about almost any public figure or public official in particular. The Lincoln that Prime Minister Havel cited was the great, brooding, mystical slave-freeing Lincoln…not the Lincoln that suspended habeus corpus. And so it is that when I use the word “Lincoln”, I mean Lincoln at his best, too. Still, I think that we have developed a body, a theory and law which tends to guide us in most circumstances. It doesn’t always work. I mean during the McCarthy period citing Lincoln and Jefferson itself might have been suggestive of some reason for people to suspect you. But, you know, I think when you look back on our history we have an enormous amount to be proud of in terms of what we’ve created, and we see that reflected by what foreign courts are doing now as they cite back to us, by what foreign leaders are doing. Not just when they come to our country and talk to Congress, but when they talk within their countries. Their heroes are our heroes, and as you quoted earlier, I mean our Declaration of Independence is, is part of their history now. And that’s an extraordinary contribution that we have made to the world. But I can’t tell you that, that anyone can, can survive simply on reading revolutionary literature, like the Declaration of Independence, or democratic theory at its best. There will always be hard issues. People will disagree about those hard issues. The question is where do we start, as we start to address those hard issues and I would hope that we would start with our Jeffersonian heritage, our Lincolnian heritage.

Heffner: But suppose you do start there, Floyd, and then consider the possibility that nations experience hardening of the arteries, of the intellectual arteries, too. I think that’s what Michelle’s question was directed toward. And, and, as a student of history, as a student of constitutions, not just our own, I wonder what your comment is on that?

Abrams: The answer’s “yes”. Nations do suffer moral and legal hardening of the arteries, and it comes and goes. It gets harder and less hard. Times change, people change, threats diminish sometimes. I mean the fact that we are, we perceive ourselves now as much less threatened from abroad would ordinarily lead us to be a little more relaxed about what is said, what is communicated, people…historically I would say, would be less angry at a time of relative agreement of peace or lack of what is viewed as an imminent national threat. We’ll see if that happens now in our country. What is not going to happen, I think, now in our country is any diminution in the cultural warfare and legal warfare about culture, which has developed here in the last few years. And, and one of the startling things, as I look at it, is that many of those battles are unknown abroad. I mean these are not things people are fighting about as we are fighting about them in, say, Western Europe. People are not indicting museums, or musical groups, or trying to de-fund the arts, or trying to put enormous limits on the arts, or trying to keep Catcher in the Rye out of school libraries. That just doesn’t happen abroad. Other things happen. Sometimes worse things happen, but these sorts of things don’t happen there.

Heffner: Without a populist tradition, such as our own…

Abrams: Yes.

Heffner: …they’re not too likely to happen, but as the winds of change blow over Europe, in particular, I wonder whether majoritarianism and democratization won’t bring about a kind of populism that will lead to what we’re experiencing now.

Abrams: Well, one of the interesting questions is what sort of constitutionalization will occur in Eastern Europe, say? I mean here we have this extraordinary situation of American law professors passing each other in the night, going to and from Poland and Czechoslovakia and Bulgaria and other countries in Eastern Europe, assisting in writing their Constitutions. We don’t know yet what the European countries will choose for themselves.

Heffner: Yes, you make that point. Before though you mentioned public opinion and in your commencement address, you said “Make no mistake, public opinion matters. As George Orwell once observed, ‘if large numbers of people believe in freedom of speech, there will be freedom of speech, even if the law forbids it. If public opinion is sluggish, inconvenient minorities will be persecuted even if laws (read Constitutions) will exist to protect them’.”

Abrams: True. That’s true. I mean there is a limited amount that law, including constitutions, can do to protect the public. They can protect individuals from going to jail. You go to court and fight and win. But more important than any particular law or ruling is, is the public sense of dedication to, or acquiescence, at least, in principles of tolerance and libertarianism. If that doesn’t exist, then I think Orwell is quite right. We don’t have enough courts. No one has enough courts…no one, even in America, has enough lawyers (laughter) to continue to fight the battles as they would occur every day in every place if the public really is in a major mood towards cracking down.

Heffner: Well, you know, it was your quotation from Orwell in the matter of public opinion that led me to my question, and it’s, it’s not a cynical one, it’s perhaps a desperate one. And that is, did we ever really mean what, and you and I have discussed this before in a different context, did we ever really mean what the Founders wrote in the first ten amendments, let’s say? And, do the courts, are the courts really now just catching up with what Orwell describes as public opinion? Did you First Amendment attorneys, if I may return to that, just live high on the hog for a number of years and now we find that there is not that supportive public opinion?

Abrams: Let me say first I don’t think the First Amendment in particular has fared that badly in the courts. I think other amendments have fared worse than the First Amendment has. I mean the decision very recently, for example, striking down the use of patronage as a method for rewarding and punishing people because of their political views is an extraordinary one, and an extraordinary vindication, I would say, of one’s right to hold different views, to take different positions, even than the people that wind up employing you. So I, I don’t want to be understood to make the case too strongly that the First Amendment legal battles are going too badly. There are some law suits. It is in other areas of the Bill of Rights more than the First Amendment that I think we have really seen a significant diminution of those rights.

Heffner: The penumbra?

Abrams: Well, no. Basic rights of people accused of a, of crimes…recently, for example, a case involving the confrontation clause of the Constitution. Not an easy case, certainly not an easy case morally, but the question of whether children who are…who accuse people of sexual abuse of them have to appear in court so that the person who’s accused can confront their accusers. The Constitution seems to be bottomed on the notion that everyone has a right to confront his or her accuser. The Supreme Court in a five to four vote, just a few weeks ago, said that in this case, because the people involved were children, that you could videotape the child speaking and not allow a cross-examination with the defendant right there, etc., etc. in front of the jury. Well, I mean what I was struck by there is that Justice Scalia, for example, joined the dissenters saying “Look, the Constitution talks about a right to confront your accusers”. Judge Bork has expressed similar views as well. So I’m not saying that this is all ideological in terms of Left, Right, conservative, liberal. But I do share their views on this and I do think that in this case as others that we are diminishing the constitutionally established rights of criminal defendants because we find it so appalling: A) that some people should get off who are guilty, and B) in this case, that children should have to be subjected to the humiliation and pain of having to re-live this in front of a jury. In the area of capital punishment it seems to me that our courts have moved to a plane where maybe a majority of our Supreme Court, certainly just about a majority, seem to feel that, that every day that someone who’s been convicted of a capital offense and is supposed to die, every day that that person lives is an affront to principles of order and justice, even though the person is safely secured behind bars while appeals are being prosecuted. I think we’re getting tired of going the long route around…that, that I believe the Constitution did prescribe.

Heffner: But that is the point, isn’t it? Or at least it’s the point we’ve tried to raise.

Abrams: Yes. Yes.

Heffner: We’re tired…

Abrams: Yes.

Heffner: And your reference to Orwell’s comment on public opinion certainly is pertinent because in the cases you’ve just mentioned, surely if one were to say, “Where does public opinion rest”, it would be on the side of the contradiction to those Constitutional guarantees.

Abrams: I think so. I think so, and, and I think…well, for myself, if I…maybe if I weren’t a lawyer, or a Constitutional lawyer or I hadn’t sort of forced myself to try to think these things through…I mean I can still be wrong, after thinking them through, but trying to think them through, but that my instinctive reaction would be, you know, “Poor child, already subject to abuse and now again, has to testify”. And the same in a lot of other situations. But as Justice Black used to say, “The purpose of the Bill of Rights was to make it more difficult for the government to convict people”. Harder.

Heffner: But Floyd, we’ve always sought justice. However you define it. How can we defend…how can we be First, Second, Third, Fourth, Fifth Amendment voluptuaries if justice seems to be eluded by a strict application of the Bill of Rights?

Abrams: Well, it seems to me that we need a major public education effort to try to explain the relationship between justice and freedom. One of the social costs of living in a more, rather than less, free society is that we run some greater risks, hopefully not insuperable ones, but some greater risks that some guilty people might go free. I mean when we say guilt has to be proved beyond a reasonable doubt, for example, we are saying, implicitly, but it is as if we said it explicitly, “we’re going to free people who we think are guilty, if we can prove it beyond a reasonable doubt”, which is a very difficult standard to meet. And we do that sort of thing again and again and again. Now I would put it to you that that is one of the reasons that we are so envied abroad, that, that, that the level of freedom is such that we are the wonder of the world.

Heffner: Don’t you think that has more to do with the First Amendment and free speech, rather than with criminal or the accused’s rights?

Abrams: I, I think it’s two things at once. Look, no one admires how our criminal justice system works…

Heffner: Or doesn’t work.

Abrams: Or doesn’t work because we live in a crime-ridden society, which is not true in almost any country abroad. Certainly to the same degree that it is true here, and so foreigners do not come over here and say, “How can we imitate you to wind up to have the streets of Belgrade be like the streets of New York”? On the other hand, foreigners do come here and say both, “We’re interested in imitating you in terms of First Amendment freedoms and we’re interested in learning from you in terms of what sort of rights you give criminal defendants”. I mean it is not a necessary result of giving a fair and Constitutionally justified amount of rights to criminal defendants, that we have to have a society which is, which is almost out of control in terms of crime. That’s not, that’s not why we have crime and that’s not why we have the enormous risk of crime. So in that…so that in my view…

Heffner: But in the view of the public…would you say…

Abrams: I think…I think the public has become persuaded that the courts bear a great deal of responsibility for crime in America, and I don’t think that’s true. I don’t mean that it’s not true at all, but I think as a basic charge, blaming the judicial system, the way the system works…and particularly the Constitution and the way the Constitution is interpreted…I don’t think that’s why we have crime in the streets, or why crime’s out of control.

Heffner: But if we’re going to make a bet, and that bet is going to be based upon numbers, I’m not going to bet on the position you’ve just taken…

Abrams: Neither would I.

Heffner: …in terms of what most people…

Abrams: Oh, I agree with you. And I do think that that does have an impact on the courts. Look, our political leaders run for office, as they are entitled to, and promise, as President Nixon did, to appoint judges who are going to be tough on crime. Well, I mean, in my view no one wants…no, no sane person wants to be soft on crime. I think it’s a misplaced black of energy to blame the courts for the criminal plight we find ourselves in, but…sure, people run for office, the public’s persuaded and I think we are seeing that even as ever more conservative judges populate the bench, that’s not solving the problem.

Heffner: Floyd, we have 30 seconds left. In that great length of time, is there any indication that the courts are going to begin to look at precedents from abroad?

Abrams: I can’t say “yes” in part because no one has cited them. I think that if American lawyers would start to cite some international precedents to our Supreme Court at least, that it would have some impact, and I think it’s long overdue.

Heffner: I trust you’re going to be among the first to do that.

Abrams: I will.

Heffner: Floyd Abrams, thank you so much for joining me today on THE OPEN MIND. You’re going to come back again and again and again because we’ve got so much to talk about.

Abrams: I hope.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s themes, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.

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