Floyd Abrams

Again, Rights in Conflict

VTR Date: December 16, 1990

Guest: Abrams, Floyd


Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: Again, rights in conflict…
VTR: 12/16/90

I’m Richard Heffner, your host on THE OPEN MIND. And I’ve bemoaned the fact many times that 45 years ago when I should have, and possibly then could have gone to law school, I wasn’t smart or wise enough to do so. But I’ve sort of made up for that career miscue through the great good fortune of having a younger son who’s an assistant district attorney, some extraordinary lawyer friends who play an ever more important role in molding the place and the meaning of the law in American life, and a television program that enables me to focus often enough on the law’s commanding themes.

Well one such friend and legal eminence is constitutional expert Floyd Abrams, the distinguished Cahill Gordon & Reindel partner, whose arguments before the Supreme Court of the United States and elsewhere have drawn the plaudits of legal scholars and practitioners everywhere, even those who would reject his legal opinions. Now, when I began negotiating this Floyd Abrams appearance on the Open Mind, I wanted mostly to draw upon his skills as a teacher at Columbia and Yale Law Schools to teach us all something about the legal principles behind the General Noriega cable news network case. One in which the fundamental constitutional rights of fair trial and of free press seemed once again in perilous conflict. I wanted to ask Mr. Abrams how an officer of the court, for whom fair trial must loom so large or largest, can ever subordinate its endangerment to free press considerations. But then, if where one stands does depend at all upon where one sits, my friend here who often represents the media, sits in two places at least.

More recently he also won a most significant Supreme Court victory in Minnick versus Mississippi. And I want to ask counselor how he responds to Justice Scalia’s dissenting cry that one should not underestimate the extent to which this decision restricts law enforcement. Also, how does free speech advocate Abrams reconcile everything else in his career with his successful defense of the New York City Transit Authority’s prohibition of speech associated with panhandling in the subways? First, however, about Justice Scalia’s fears that in Minnick versus Mississippi, Mr. Abrams has helped lead the high court too far down the road of hindering the police in their pursuit of law and order; Floyd?

ABRAMS: Well first I don’t think we need to worry that all these Reagan appointees have been misled, or tricked, into going in the wrong direction on law enforcement. This is a very conservative court. They take law and order very seriously. So, in fact, do I; certainly they do. Their view was based on prior precedence of the Supreme Court, and their understanding of the Bill of Rights, that if somebody asks for a lawyer after he’s incarcerated, that he’s entitled to have a lawyer. And beyond that, that at any future interrogation of him, he’s entitled to have the lawyer there. Now that’s all the Minnick case said. The Minnick case also said of course someone can waive it if he says to the police, “I want to talk to you without my lawyer being there.” But that the police can’t reinitiate a discussion with a person, who has a lawyer, who is incarcerated. It is, so the court held, inconsistent with the Fifth Amendment.

Well, maybe it’s obvious, but I think the court was on the mark. I think that what they did was certainly consistent with their prior rulings. But beyond that, I think that Justice Scalia’s concerns are really significantly overstated. It’s true, on one level, that the more people have lawyers, the less it is that they’re likely to say because lawyers are likely to advise people not to answer questions which may incriminate them. But the other way to say that, is that that’s what the Bill of Rights is about. If we’re entitled to have a lawyer, then we should have a lawyer present when it matters most. And that’s what the Minnick case was about. I mean I understand, and every New Yorker and every American feels the same sense, that the world’s getting away from us, that we live in a state of anarchy sometimes. But it doesn’t really help law enforcement, and it does hurt the Bill of Rights a lot to say that even after someone has a lawyer, that the police can simply go back, presumably again and again, after the lawyer leaves the cell talking to someone; that the police can then re-enter, give someone a new warning and then start in again. I didn’t think that made sense and the Supreme Court has said so. And I think the very people who voted in favor of that ruling bear testament to the fact that it should not be interpreted as an open door to letting criminals go free.

HEFFNER: But then how do you explain Justice Scalia’s statement?

“One should not underestimate the extent to which the Court’s expansion of Edwards constricts law enforcement. Today’s ruling that the invocation of a right to counsel permanently prevents a police-initiated waiver, makes it largely impossible for the police to urge a prisoner who has initially declined to confess to change his mind….”

And that seemed to be a rather telling point.

ABRAMS: Well, what he says is not wrong in the second sentence in saying that the very thrust of the decision is to say: that once you have asked to have a lawyer, and once you’ve had a lawyer that you’re entitled to have the lawyer there when the police interrogate you. And what Justice Scalia’s saying is, “But if you have a lawyer there, you won’t confess”. That’s probably true. But the other way to say that, is that if someone has said he wants a lawyer, and if we’re serious as a society in saying that if that happens he’s entitled to a lawyer, that we shouldn’t pick and choose in this sort of odd way in saying well he can have a lawyer once, but then if the lawyer leaves then the police can come back and reinterrogate and then come back again and reinterrogate him. It seems to me that the effect of that is to so diminish the impact of having a lawyer in the first place, that we wind up with far less protections as set forth, so the Supreme Court has said, in the Bill of Rights.

HEFFNER: Does that mean that you feel that this decision will have a significant impact upon the law and upon law enforcement or not?

ABRAMS: We don’t really know the extent to which police have engaged in this sort of activity described, or which occurred in this case. And that activity again is coming back to someone who has already had counsel after the counsel leaves, and reinterrogating him. In most of the manuals for law enforcement, and all the ones that we found which we cited to the Supreme Court, the rule was set down well in advance of this case that what the Constitution in effect requires is that once someone asks for a lawyer, the police cannot continue the interrogation, and may not resume it until the individual under interrogation asks for it to be resumed. Now you could say about that, you could say about Miranda itself, and I think Justice Scalia would say about the Edwards and the Miranda… all the decisions we’ve had so far, I think he would say about those cases just as he said about this one, “That’s too high a price to pay. We shouldn’t pay the price of furnishing counsel with all these surrounding protections at a time in which we have a law enforcement crisis in America.” Well that’s not a foolish argument. Nothing Justice Scalia, in fact, says is ever a foolish argument. But it is an argument which significantly denigrates the rights set forth in the Bill of Rights. The Bill of Rights are supposed to make it harder to obtain confessions. That’s one of the purposes. They’re supposed to make it harder for law enforcement people to do what they would like to do, to gather information, because they are supposed to provide the public, viewed as people who could in theory be arrested in some circumstances, with certain protections. And one of the protections which this very conservative Supreme Court has now established or made clear if there was any doubt about, is that once you have lawyer, the lawyer should be there when it matters most. I don’t think that’s an extraordinary expansion of law or a misconception of what law should be.

HEFFNER: But it is a rather extraordinary and very important maintenance of a position in Miranda, Edwards, et cetera, that you fought very hard for.

ABRAMS: It’s true. That’s true. Look, George Will had a column about this case in which he said ten years after Ronald Reagan took office, conservatives shouldn’t just have two dissenting votes to speak for them.

HEFFNER: How do you account for that?

ABRAMS: Well look, I would love to say it was the advocacy. I can’t, I can’t.

HEFFNER: (Laughter) Sure you can, but what else?

ABRAMS: We had the law on our side. I mean we had cases… case after case joined in by an increasingly conservative Supreme Court which as much as said what the court said in the Minnick case. Now if you ask me, why do I really think the Court did this, or how would a conservative court come to this? I think there is something to the notion that judges are lawyers. Judges understand what lawyers do, and judges are not, by training, afraid of what lawyers do so long as what lawyers do is consistent with the bounds of ethics. And judges tend to think that people ought to have a right to a lawyer, and a right to a lawyer in a meaningful fashion. And that, I think tends to cut across liberal/conservative lines because that’s the part of a training that we all have, not because we are lawyers but because we study about law, and because we know the sort of protection that a lawyer can give to someone, and we know the plight of someone in custody who doesn’t have a lawyer.

HEFFNER: Well let me talk now, or let me ask you to talk now about another kind of protection and that is – not yet Noriega – but that is the protection that you, in a sense looked askance at in the subway begging case. New York Times: “Floyd Abrams…” – and this was after the first court, federal court, federal judge, Judge Sand indicated that the law, or the regulations of the Transit Authority were unconstitutional:

“Floyd Abrams, a leading expert on First Amendment law and a legal consultant to the M.T.A., said he believed Judge Sand was wrong in ruling that begging was speech rather than merely conduct, which would not be protected by the Constitution. He said he believed the ruling ”stretches the First Amendment beyond its limits.”

And I’ve never seen my First Amendment voluptuary friend Floyd Abrams, give any expression any time to the notion that the First Amendment could be stretched beyond its limits.

ABRAMS: It can. It can. If somebody walks up to one of us in a car and we’re stopped at a red light, and starts to wash our windows against our will, and if per chance there were a law against it which was enforced, if the person said, “Look this is just my way of speaking,” or “This is an opportunity for me to communicate with you to express my concerns about things,” I would say there as I said here, “That’s not what the First Amendment is about.” I think we have to be rather careful not to call everything, quote, First Amendment, unquote, simply because it has some level of communicative characteristic to it. We also have to be careful on the other side, not to strip First Amendment activities by simply calling them conduct. We all know that if someone walks up to us in the subway and says, “Give me money,” that’s not protected speech. It’s words, sure it’s words. But that’s not protected speech. And even the people against us in the begging case would agree that at some point that becomes conduct. At some point down the road of saying “Give me money,” as opposed to “Please give me money,” or “I insist you give me money,” or “You better give me money,” at some point it becomes a crime by anyone’s definition even though it’s language. Well my view is that in the context of the subway system of New York, that begging is closer to conduct than it is to speech; that the impact, that the sense a rider on a train has or a walker in a subway – this case wasn’t really about what happens on moving trains, but in the subways system as a whole – confronted in the underground area of a subway by someone asking for money is so much more often than not, understood to be a threat and so often is rather threatening on any objective level as well, that it is a stretch of the First Amendment to say that, quote, begging, unquote, is speech.

HEFFNER: Yes but Floyd, being so much older than you are, remembering so well the Depression, if I were to approach you in a subway and say, “Brother, can you spare a dime?”; what would be the impact upon me at that point? Upon me, not upon you. Under the regulations now, or do I misunderstand them, that is a threat or is considered to be, not after examination and did Heffner have a gun in his hand when he said, “Brother, can you spare a dime?”, but just saying that, that kind of panhandling, is not permissible. Is that correct?

ABRAMS: Absolutely correct. And the sense, the purport of these regulations is to make it clear that subway riders are allowed a level of serenity, if it is even conceivable to use that word about the subways, people even walking in the subway system are entitled to go to and from their trains without being confronted by someone on a sort of eyeball to eyeball basis…

HEFFNER: Or any basis…

ABRAMS: …asking for money for themselves. No, I do want to make clear that the regulations in effect do allow charities to solicit for money, not on the trains. I mean, no one’s allowed to solicit on the subway cars. Now I know very well that that sometimes happens anyway. These are not, and they will never be, the most enforced regulations. The policy of the transit system is simply to ask people to move on. And that’s what they do. The question is, are they going to have the right, the legal right, to ask people to move on, not to do it anymore? I mean our jails are filled. They’re not about to put people in jail who’ve done nothing other than begging. But the question is, the legal question is, is this the sort of thing the First Amendment is about? Or at the least, can we say within the confines of the subway system, that this is what we lawyers call “a time, place and manner”, a restriction; a restriction which because of where we are in the subway system is not to be said to violate the First Amendment? Now I would go further, and I did in my papers and in that statement that you quoted earlier. It’s my view, as a generality as well as in the subway system, that begging tends to partake more of conduct than of speech. But I think that that is especially so in the underground cavernous tunnels that makeup our subway system.

HEFFNER: You mean I will be in jeopardy if when I see you next on the subway, in the subway not on the train, I say to you, “Can you spare a dime?”

ABRAMS: I’ll put in a good word for you.

HEFFNER: (Laughter) I’d rather have you representing me than putting in the good word. Floyd, I just wanted to straighten that out to understand it. I didn’t understand it when I… I didn’t understand your position; I didn’t understand your presence in that. And I can’t pretend that…

ABRAMS: Can I add one thing?


ABRAMS: These new regulations came about as a result of a liberalization by the Transit Authority, an expansion that is of what could occur in subway stations. They allow now, as they didn’t used to, leaflets – political leaflets to be handed out. They allow now as they didn’t, music, to a significant degree, to be played within the subway system. They have expanded the realm of First Amendment-like activities which can occur within the subway system. And the basic legal question in this case was, well look if you’re going to allow those things don’t you also have to allow begging? I didn’t think that was a price tag that had to go along with allowing this expanded use of the subway stations. And the courts have vindicated that view. And I think it would have been regrettable if the final way this was resolved would have been if the courts had said if you allow the one, you have to allow the other. Because then I have no doubt the solution would have been not to allow anything.

HEFFNER: Well, I am going to sing “Brother, Can You Spare a Dime?” when I see you in the subway.

ABRAMS: (Laughter)

HEFFNER: Floyd, let’s move on or back to the Noriega case and this whole question of, and I am very serious about always being puzzled – and it couldn’t be anyone other than a lawyer – but when my good friend, the great lawyer Floyd Abrams takes a position on free speech matters that seems to me, and to many other people (innocence, I’ll admit), to undermine the fair trial position of the Constitution, there is always that… and we’ve discussed that, that tension between the two, how you resolve this for yourself? Where do you draw the line?

ABRAMS: Well I draw the line for myself pretty much where the courts have historically drawn it, and where Judge Hoeveler, the judge in the Noriega case, finally drew it after the tapes that CNN had were made available to him. And that is basically to say yes, we have two rights in potential conflict. And it’s also to say, we really can’t allow anyone to be deprived of a fair trial. At the same time we say, we really don’t want to deprive anyone of First Amendment rights. How do we reconcile that? The usual way we do it is just the way he wound up doing it here. And that is a way of saying we have other means of assuring people a fair trial than having any direct limitations on what the press can print or what CNN can telecast.

HEFFNER: If when he had read the transcripts…

ABRAMS: That’s what he did find. He…

HEFFNER: No no, but if when he had read them, he had felt, he had concluded that they were detrimental to the possibility of a fair trial…?

ABRAMS: Well it’s hard for me to say what he would have said if he had thought that. I think from reading his opinion one can make the judgment that consistent with the law, as the Supreme Court has set it forth, that it’s very hard to imagine something which could have been in the tapes which would have deprived Mr. Noriega of a fair trial. I mean we have found easy ways. I mean what we say is, the real question is can we find twelve people who are unaffected by this supposedly prejudicial information? And the answer in case after case, in ABSCAM and Watergate and DeLorean…


ABRAMS: Ollie North? Yeah. The Ollie North case was a case which has been reversed because of the peculiarity of trying to keep the prosecutorial staff from knowing certain types of information. And the question there was whether the proper hearing had been held about whether they’d been kept from doing so. In the CNN case, there were two prosecutors who are the upfront prosecutors of Noriega. They swore under oath that they hadn’t listened to what CNN said, they weren’t going to. We can immunize prosecutors. If the concern is… and I think this was the most interesting issue in the case. If the concern is not that jurors will be influenced (the answer to which I think is always “we’ll find jurors”), but if the concern is the prosecutor will learn things that we don’t want him to learn, it’s a secret what Noriega’s plans are and we don’t want the prosecutor to know that, that’s interesting to me. But I think the answer to that is we find prosecutors. We insist that the prosecutors don’t learn those things. And I think we have ways of doing that.

HEFFNER: But that wasn’t the only issue. You say that was the most interesting one.

ABRAMS: Right.

HEFFNER: But the question of a jury, the question of that aspect of a fair trial did surface.

ABRAMS: Oh sure, but the jury issue tends to be easier. Because the jury issue… for this judge to have kept this prior restraint into effect, he would have had to have found, “I can’t find twelve people in Miami who are so unpolluted by what CNN has done”, that they can’t give a fair trial. I mean is it possible for me to find people, who because of CNN are unable to give this man a fair trial? Look, there are real problems with giving General Noriega a fair trial, more than maybe anyone else in our history. We’ve never invaded a foreign country to pick up a criminal defendant, brought him back here and tried him. It’s a serious issue, about how to get him a fair trial. But to think that anything CNN could have had, or in fact anything CNN had, would wind up depriving him of a fair trial that he otherwise would have had seems to me not only unlikely, but truly all but impossible.

HEFFNER: Were you willing, happy to accept the notion that the judge would make that decision?

ABRAMS: Under the law, the judge has to make the decision. The way, the hard point in the case, and the reason it took long and the reason that there was some confusion in it, is that CNN took the position, consistent with that of a lot of other broadcasters and newspapers through the years, that they didn’t want to produce to the judge their raw materials as they viewed them, because that puts the judge in the role of sort of a censor. Well the judge said, “How can I rule if I don’t have what you have?”

HEFFNER: Good question.

ABRAMS: It is a good question. And although I think there’s an answer to that question, which is that you ought to assume, judge, assume that the very worst thing you can imagine is in the tapes. Assume a confession of Noriega. Assume a complete recitation of the defense strategy, et cetera. Take that against us if we’re not willing to turn over the tapes to you, and we still win. We still win because we want to persuade you we can find twelve people in Miami anyway. But he didn’t agree with that. Alright so finally, he won on that. He was said to be correct in his view. CNN turned over the tapes to him. And after viewing the tapes he concluded, I think without much difficulty, that based on the material CNN had, that there was no real threat at all to Noriega’s fair trial rights.

HEFFNER: Floyd, you know the darn thing is, I wanted to talk about those other cases, but now our time is up and I’m getting the cut sign. Come back and we’ll talk about prior restraint again.

ABRAMS: Sure. Love to.

HEFFNER: Floyd Abrams, thank you so much for joining me today.

ABRAMS: Thank you.

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, please write The Open Mind, P.O. Box 7977, F.D.R. Station, New York, NY 10150. For transcripts, send $2.00 in check or money order.

Meanwhile, as another 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 Edyth and Dean Dowling Foundation; The Richard Lounsbery Foundation; and from the corporate community Mutual of America.