Guests: Abrams, Floyd; Rosenblatt, Roger
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THE OPEN MIND
Host: Richard D. Heffner
Guests: Floyd Abrams, Roger Rosenblatt
Title: What is Permissible?
I’m Richard Heffner, your host on THE OPEN MIND. We recorded this program early in May, 1985. Of course, in a sense, it began early in May, 1956, twenty-nine years ago, when the very idea of having and celebrating an open mind on television seemed rather innovative as I produced and moderated this series’ very first episode.
Much has happened over these decades, to us, to our nation, to the very concept of open-mindedness, to the faith that undergirds our historic sense of the good society as one where we test new ideas in an open marketplace, free always to judge them without coercion, so that when new vies do seem to us to be true views, we may embrace them as citizens at our own free disposal.
That free choice has sorely been tried in these years since THE OPEN MIND began as so many of us have sought to protest what is, and then inform others with what might yet become public policy.
The question so large before us, of course, has been, what, in a free society, is permissible as protest? As a means of fostering change, what are its limits? What speech and deeds in brief are permitted to minorities and majorities, too? Well, my guests today deal with this question from very different vantage points, Roger Rosenblatt, as teacher, journalist, and essayist for Time Magazine, and Floyd Abrams, as the nation’s best known First Amendment attorney, and, interestingly, as Columbia University’s representative in court during this spring’s anti-apartheid student demonstrations.
Gentlemen, thank you first for joining me, and then, it’s a touchy subject for all of us, because I think we are all libertarians to one degree or another. I think, Roger, Floyd said the most interesting thing on this program once. He said, where you stand depends upon where you sit, and given where he has sat recently, Floyd, I think I want to ask you what you think of as permissible by way of protest in this country.
ABRAMS: Well, most of the forms of protest that we’ve historically developed are lawful, moral, appropriate demonstrations, picketing, speaking, complaining, remonstrating. There are lots of different ways well established, and still in many cases, uniquely American, in terms of the degree to which we protect them. There are even situations in which people violate laws where the laws are later held to be unconstitutional. Then there were brave people who refused to move to the back of the bus, people that would not abide by Southern segregation laws, protested those laws, and won. All of us won because they won.
The Columbia situation is somewhat different, in my view, because there was no argument that the trespass laws were improper or immoral or anything, and no contention, I think, that there was a serious legal right to padlock closed one of Columbia’s most important schoolrooms, so to speak, and keep students from going in and out of the building.
It was a protest. It was a lawless protest, in my view, and it can be dealt with on the level of civil disobedience or whether one admires it or not or whether this is the sort of situation that laws should be violated or not. It does not seem to me, though, to raise even a serious, even a credible First Amendment issue. It seems to me it is plainly unlawful for students to behave as some of those students did.
HEFFNER: As difficult as it may be, suppose we set aside the First Amendment just for a moment and talk though, about protest. You say for the most part, we have had peaceful remonstrations, demonstrations, protests. They haven’t always been that. Would you have wanted us never to have experienced those that were not?
ABRAMS: Well, in almost every case I can think of, yes, I would want demonstrations to be peaceful. Among other things, they are more effective. But beyond effectiveness, they are more attractive and they have a greater tendency to be lawful. Law does not matter here.
Law is not the only thing that matters, but law plays a very serious role, I think, in any equation as one talks about what sort of protest is permissible or, indeed, even admirable. So, I think that when you asked me how much I care about the fact that some protests are peaceful and sometimes not, I care a lot. I care a lot about the fact that protests are peaceful.
HEFFNER: I’ve always wanted to talk with Roger about a higher truth and threatened that I would get him to talk about a higher truth, but maybe we are talking here about the possibility of a higher law. Roger, how do you feel about what Floyd is saying here?
ROSENBLATT: I think one of the things that makes this a particularly difficult and, as Floyd would attest from his recent experience, painful circumstance is that these protests, when they occur in a university, add another element to the quality of protest.
HEFFNER: Which way?
ROSENBLATT: Well, I’m not sure, I guess both ways. Certainly, when one thinks that the context of a university is a place where free ideas are supposed to have their greatest room and perhaps to exert their greatest leverage, ideas abstracted from experience, and then you have a political issue, in Columbia’s case, and in Columbia’s case in the 60s, as in Harvard’s and other places, where the university itself is held culpable by a group of people for things it does, and then the university is used as the place where the protest takes place, and the protest takes the form of abridging the rights of others. You have a constricting of the very institution that is supposed to keep things moving freely. And, people in the universities get to terribly painful situations. Professors against professors, professors against the administration, because they are, on one hand, believing in certain causes and the rights of free expression. On the other hand, they don’t want to see the institution to which they have given their lives be destroyed by the decisions of a minority that really don’t take the full scope of free expression into consideration.
HEFFNER: You know, I hear what you’re both saying, and I think, basically, I’m in agreement with you, but I’ve had one experience perhaps you’ve both shared. Jan Waldman is the young woman who is the Associate Producer of this program. She has been asking me a question that I haven’t been able to answer. Maybe you can. And that is, when you have again and again, as a student, as a faculty member, as a citizen, again and again raised your voice, not over loudly, but you have raised your voice, you have made your thoughts known and have not succeeded in righting a wrong, one that you perceive clearly as a wrong. What do you do?
ABRAMS: I’m afraid the answer is to raise your voice again. There are some circumstances in which we as people opt for revolutionary acts. The Boston Tea Party was an end to discourse. The English wouldn’t listen, we started a Revolution. I’m in favor of that Revolution. It was a good idea. But, we can’t have a lot of them, and we have to be reasonably prudent about when we abandon all law, when we abandon all pretext of participating in an ongoing society.
It seems to me that the answer on a university campus is to demonstrate. I think it would be better to demonstrate not so much at the university itself if the complaint is here with investments in companies that do any business in South Africa. I should think that the real claim would be against those companies. But if the choice is to demonstrate about what the university does, I think the answer is there are lots of things that can be done. There are vigils, there are protests, there are demonstrations, there are strikes if necessary.
But is seems to me that it imperils the notion of a functioning university itself to say, as in the Columbia situation, that because the cause is just, you move way beyond protest as we would ordinarily define it and get into locking and blocking buildings. Because if you once say that you can do that for a good cause, then you have to say, at least in legal terms, you surely have to say that people who are in favor of apartheid can do that, too. People who are pro-choice and pro-life and pro-this and anti-that all have the same claim to pick up their padlock and lock the building door.
ROSENBLATT: That’s the parallel to this. That’s the central parallel. You have to be awfully sure of your truth. We talked about truth before. When you’re ready to violate something that’s really important in their behalf and wind up in a trade-off, that probably loses both ends, loses the thing you want in exchange for the immediate protest, and loses something that is established as important as well.
HEFFNER: Of course, they were saying, this is an important, an extremely important truth. And more than that, wasn’t the situation that if, Floyd, as you suggest, the voices should be raised again, how in this time of ours does one raise a voice as effectively as by doing something that makes the press day after day after day as this activity did? This was extremely effective speech, wasn’t it?
ABRAMS: It was extremely effective conduct certainly in the sense of attracting press attention.
HEFFNER: Wasn’t that conduct speech?
ABRAMS: In legal terms, in First Amendment terms, no. Most of it was not. There was speaking involved.
HEFFNER: But if we forget the First Amendment terms for the moment?
ABRAMS: You asked me if it was speech. I don’t think it is speech to put a padlock on a door, no. But if you’re asking me if putting a padlock on a door attracts attention, it does. And if you then speak once you get the attention it did. So to that extent, it had its effect. But not without cost.
HEFFNER: What cost do you mean?
ABRAMS: Well, I think that you not only have to be very sure that you’re right. You have to be ready to pay the consequences for violating the law, and you ought to think out what you’re doing to the structure of the society in which you live as a whole by going ahead and knowingly, willfully, purposefully and for a greater good, so you thin, violating the social compacts so to speak that holds it together.
I’m in favor of that sometimes. I am. But it is a very serious act. And it is not something which I think, to take this case, it is not something which ought to be taken in circumstances in which beyond all the appeals to the University to change a policy that some students feel is unwise or, indeed, immoral, the students have not done everything they think that they can vis-à-vis the companies themselves that do business in South Africa. These students believe that they shouldn’t do any business.
Or even on a personal level. It is not entirely attractive for students to sit drinking coke who are protesting the fact that the university invests in Coca Cola. And it seems to me that once you start down the road of a protest which is to be judged on a purely moral level, putting law aside, then one is entitled to judge it just that way and to ask very, very strong questions about who’s doing it, and what are they doing, and what are the costs in general of what they are doing?
HEFFNER: Roger, did you find any other sympathies during this exchange?
ROSENBLATT: No, but my absence of sympathy was built ten to fifteen years ago in such things during the demonstrations of the late 60s. At that time, as you know, I was teaching full time and the demonstrations that I saw were in Harvard in 1969 and they were very ugly. In fact, one of the things that I noticed, and Floyd and I’d discussed before, is the relative tameness of this demonstration compared to Columbia 1968, Harvard 1969, and other institutions around the country. What’s interesting in that difference though, is that it still doesn’t look good.
HEFFNER: What do you mean, look good?
ROSENBLATT: Well, in the late 60s you had some very rough stuff going on. It wasn’t a matter of people just locking a padlock. People were thrown out of offices, people punched and shoved around, and there was a terrific panic, a panic with which one can sympathize, which wasn’t understood in the country at the time because it wasn’t only traceable to whatever demonstration was going on intra-university, but it had to do with Viet Nam and all the things that were making the country terribly shaky and anxious at that time, too.
Now, you have a relatively calm demonstration, one that worked its way out, I think with the wisdom of the university. One of the things that Columbia did right this time, which it didn’t do before, which Harvard did not do right in 1969, was that police were not called to bust up the situation. When police were called in the late 60s, you just added a terrible situation to a dangerous situation.
But it still doesn’t look good, as I said before, because you are still dealing with the same basic situation, one set of rights violated in order to assert another set of rights. You lose more than you think you gain. And what do you gain after all? I mean when it comes down to it, this will not be the way by which the case against apartheid will effectively be made.
HEFFNER: Do you really believe that nothing was gained on that side by the demonstration of the courtroom activities, of the activities on campus? All the publicity given…
ROSENBLATT: Yes, I think attention was gained, and I think some cognizance that this is worth thought was gained. But the question isn’t a trade off of how much was lost or how much did you risk losing and what you risked losing in tying up a university. The university especially as we said before, but any institution, tying up a university in that situation was far greater and would wind up setting you behind the issue even if the one that you promoted was successfully resolved.
HEFFNER: Looking back at it, Floyd, was anything lost?
ABRAMS: Well I think so, yes, I think so. I think that while these are long range things and abstract things, I think the fact that so many people were prepared for quite so long to defy court orders in this area loses something in terms of our society as s whole. And after all, the First Amendment, I think you’ll forgive me for mentioning it again, is a law. It requires the courts to exist and to enforce it, to protect us all. The protesters need law to protect them.
That’s not all they need, and that’s not the only good in the world to say the least. But there was a willingness, in my view, too easy willingness to not only strike out, so to speak, against the university, but to ignore the processes which allow us to live in such a free society.
HEFFNER: But wasn’t the string simply run out, and when it did run out, that was it?
ABRAMS: Well, on that sort of level, yes. I mean the university behaved with restraint, the students behaved peacefully let me say, and everybody is back taking exams as we speak. But it’s not as if these things didn’t happen. On one level it is true to say that the increased publicity led, I hope, some more people thinking a little more about apartheid. That’s a good idea.
But on the other, these are fragile things that we deal with. The university is a fragile community that we deal with. The law is a fragile entity that we deal with. And so on that side of the equation, too, I think that there was genuine effect and some real loss.
HEFFNER: And the press, did it acquit itself well in your estimation?
ABRAMS: Oh, the press was okay. I’ve seen the press acquit itself better. I think the press does have some tendency in reporting on stories like this to be rather sympathetic to the side that in other circumstances, in which law…law wasn’t involved, I might be personally sympathetic, too. The press seems to like students and dislike large institutions and that’s not all wrong, but sometimes wrong. And it shouldn’t start out that way.
HEFFNER: Should I ask, Floyd, what this does to you, to whatever extent, you laugh a little, and say, so why not? It didn’t acquit itself totally well. To what extend does it change your mind, your perceptions, not of its First Amendment rights, but of its behavior, generally? Is that too unfair a question?
ABRAMS: No, I can speak for him. He regards this as an aberration…
ABRAMS: No. The press, let’s talk separately about television and the print press. There’s nothing new in saying that on television there is a limited number of times to run a story about a complicated event. That was true here, it’s true all the time on most stories at least, probably all stories. The only thing wrong with that, one simply has to understand, is as Walter Cronkite said, television news is a headline service. And so when television reported about this, they weren’t unfair, they just didn’t have an awful lot of time to get into all the things that were happening. I have long since accepted that. Sometimes the side I’ve been on either as a lawyer or as a citizen profited from that, sometimes not so. But I don’t think this was a terribly handled story. I just think it was a typically handled story in the sense of not enough time for events which tend to be somewhat more complex than one would think.
HEFFNER: You’re saying that the two were not the same, typically and terribly handled?
ABRAMS: That’s right.
HEFFNER: And when you turn to that printed word?
ABRAMS: In terms of the printed word, there were errors made, I think, in the press in covering this story. They tended to be errors of a sort in reporting about court decrees, some of which happened late at night and were hard to come up with. There was some tendency, I think, because of a story line which has to compare this to the late 60s, to focus more on that than on the events which were happening. That’s a perfectly legitimate journalistic call. There was some price paid for that, I think, because in focusing so much on the comparative issue, this is peaceful, that was not peaceful, this is about south Africa, that was about Viet Nam, perfectly good stories, and in many cases perfectly accurate stories, there wasn’t quite the focus that I probably would have wanted at the time in terms of just what the students were saying and just what the courts were saying and most of all just what I was saying. But that’s a complaint everybody always has when he’s involved in a story.
HEFFNER: Floyd is so wonderful as he speaks these words, but you are going to be more generous, not more generous, more giving in response to that question about the press?
ROSENBLATT: I think what Floyd said just recently is the truth. You look for those comparisons because it makes a livelier story and I think it is probably right that we don’t focus on the details of the story at hand. After all, that’s how people know student protests, they think back into the late 60s. So the context is established almost as a dramatic form. And then they see a protest, they remember other protests, and they say, this is how students behave in relation to the mother institution.
ABRAMS: It may even be, it wouldn’t surprise me at all, in fact, if but for the student protests of the late 60s, this story would have been much less reported on. I mean there was not, I think, as interesting an occurrence as it would have been but for history.
ROSENBLATT: I think there was an old home week aspect to this, too. Where the old protesters came back to encourage the new ones, too. All of which fed that story.
HEFFNER: But that leads me to another question. But for the protests and the activities and the violence on the campuses in the late 60s, would we have left, in your estimation, for good or for bad, Viet Nam as soon or as late as we did?
ROSENBLATT: That’s a question I cannot answer with any assurance. I would say, certainly, that all the protesting, including the student protests, hastened our getting out of Viet Nam and for that we can look back with some satisfaction. But you can’t dismiss, all the facts are complicated, all situations are complicated, the enormous pain, institutional and personal, that went on as a result of these demonstrations and university faculties torn apart, sometimes families torn apart because of these demonstrations, minds, individual minds torn apart.
After all, the people who participated in demonstrations ordinarily were a minority that wished to appeal to a majority of students that wanted to know how to think. And one of the great penalties that we paid in the late 60s, one from which it took a long time for the universities to recover, is that we lost free speech in the universities. I don’t mean that people couldn’t talk, but that when people talked they had to talk one line. And in the late 60s, I would not have wanted my children to be in college at that time because somebody who had a different point of view was squashed.
If that had been the consequence of the protest and we had gotten out of Viet Nam but had lost the idea to speak freely in the university, then all we would have done is transfer modern Viet Nam to here.
HEFFNER: You think so, too?
ABRAMS: I do. I should say that it is not that protests, even protests which exceed the bounds that the law allows are always useless or unimportant. They’re sometimes important, they sometimes have effects. Sometimes the effects are good. They’ll always result in some price being paid. The protests about Cambodia, for example, were a firestorm. It wasn’t the Boston Tea Party, to use my example, but it was the public saying we just can’t stand this anymore. You’ve just got to stop this. Sometimes, though, that’s the only way people can speak.
HEFFNER: When roger talks about the damage to the universities in the 60s, I have to wonder whether continuing the losses that we were taking on another level, in terms of lives, whether they didn’t weigh more in the balance than the losses we took because of the demonstrations on the campus.
ROSENBLATT: I’m sure you’re right. But, remember, those demonstrations weren’t only for the young people who were imperiled in Viet Nam. They were for Ho Chi Min and for a government which has now put in place and the consequences of which are all too visible.
HEFFNER: Got me. I admit and you get me where I would protest…
ABRAMS: You also, I think, have to say that not all these protests were, and certainly not all of the protest should have been either violent or illegal. There is lots of room in our society for an extraordinarily effective protest within the bounds of both law and reason.
HEFFNER: Let me just take that question, enough to your satisfaction. Just take that formulation…there is room…
ABRAMS: Generally so. Now sometimes, it is both moral and lawful both to test morals as people did in the segregation cases and in other cases. To say that what’s going on here, what the state is doing to me is so unacceptable, Martin Luther King wrote about this, and acted on it, and I’m willing to take the chance and I’ll go to jail. Put me in jail. And that’s the way law changes very often.
HEFFNER: That’s not wrong?
ROSENBLATT: That’s not what we’re talking about in terms of the more recent demonstrations.
HEFFNER: Both of you, well you’ve come a little closer it seems to me, Floyd, to be saying that there is, you can accept the notion of a higher law and you pay a price for that higher law. Roger, you seem to be a little more uneasy about that concept.
ROSENBLATT: I’m not. If I seem it, I do not mean to.
HEFFNER: What do you think the future, we have a half a minute left, what do you think the future is going to be? We’re early May, 1985. Do you think there is going to be more of this, much more of this?
ROSENBLATT: I think on the issue which led to these protests, I think we’re likely to have more turmoil. It’s a very emotional issue. People feel very strong about it.
On the other hand, people feel both ways about it. It is not an issue as to which there is only one view, the issue of divestment in companies that do business in South Africa. And so long as that is so, then I think the discussion, sometimes heated, sometimes overheated, will continue about just what should happen here. But I don’t think this is over. No.
HEFFNER: And the two of you will be right in the middle of those discussions. Thank you both for joining me today. Thanks, too, to you in the audience. I hope that you will join us again next time here on THE OPEN MIND. Meanwhile, as another old friend used to say, “Good night, and good luck”.
This is Richard Heffner, your host on THE OPEN MIND. We’d like to know your ideas and your opinions on the subject that we’ve just discussed. Please send your comments to me in care of THE OPEN MIND at this station.