Constitutional expert Floyd Abrams discusses the climate for free speech cases.
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GUEST: Floyd Abrams
I’m Richard Heffner, your host on THE OPEN MIND … and it’s time again for what seems to have become my annual “fix”, my regular, on-going bout of good talk — sometimes hearty disagreement, too — with my friend Floyd Abrams, partner in the distinguished Cahill, Gordon and Reindel law fIrm, and one of our nation’s premier Constitutional experts, whose particular legal concern over the years has been for First Amendment considerations.
Now, last year Mr. Abrams and I marked here the 20th anniversary of the landmark Pentagon Papers case, in which he played a key role representing The New York Times, and in which the Supreme Court of the United States set a free press standard that some fear might not prevail today in a high court more and more of Ronald Reagan’s and George Bush’s making. Indeed, last year — even before Thurgood Marshall left the court, his seat soon filled by Clarence Thomas — Mr. Abrams noted that not only was he advising clients that the time was no longer all that good for testing free press issues … but that it certainly wasn’t likely to get any better.
Has it gotten substantially worse, however? That’s what I want to ask today, as well as questions about First Amendment implications of government support for the arts … and about the appropriateness and the free speech dimensions of “faction”, that questionable media mixture of fact and fiction perhaps best symbolized since my guest and I talked last by the controversy over JFK, Oliver Stone’s cinematic masterpiece. Floyd, welcome back. I should say, “What’s new?” Which of these questions do you think loom largest and most important at this point in our history?
Abrams: Well I don’t think the Supreme Court looms largest right now. That is to say, not much has happened in the last year or so except the disastrous loss of Justice Marshall and the substitution of Justice Thomas. Now we haven’t had any real First Amendment cases of note since Justice Thomas was confirmed, but there really is no reason to think and there … that he is going to be either at all as supportive as Justice Marshall, or indeed, that he will be particularly supportive of First Amendment principles. But that hasn’t happened yet, so that’s a … that’s more of a prediction than a statement of remorse or sadness about something that’s already happened. The, the great First Amendment problems in the last year or two on the court have been in the religion area, rather than the press area. The court did render an opinion in 1990 in particular which was very threatening to, and recognized as such by all organized religions in the US, when it basically said that so long as a law does not discriminate against one religion in favor of another, or against all religions, that a legislature … state or federal … can do what it wants even though there’s no compelling reason to do it. So, for example, if Congress passed a law, or a state passed a law, banning any intake of wine at all, the way we used to analyze First Amendment issues would be that if a Catholic who wanted to use sacramental wine, or, or a Jew wanted to use wine for the same purpose came to court and said, “but look, my religion compels me to use it”, that the government would have the burden of demonstrating that some compelling reason to apply that law to these people. No more. Or so it seems. In a decision rendered a year ago by Justice Scalia involving the use of, by native Americans, of peyote in, in very modest amounts at a religious ceremony, he held and there were four members of the court who agreed with him that there does not have to be a compelling interest anymore, but only some rational government interest. Now there is an effort to overturn that in Congress and one of the major things that I think we’re going to see going on, at least if the Democrats continue in control of Congress, is continuing clashes between the court and the Congress, where the court either interprets something that Congress has done, and then Congress says, “We didn’t mean that. That’s not what we said, or that’s not what we think we said. It’s certainly not what we mean”, which is what Congress has done again and again in the area of Civil Rights laws. Or, perhaps even in the area of Constitutional law, which is much rarer, where the court says “Oh, that, that right really doesn’t exist”. And then Congress says, “Well, we think it should, so we’re going to pass a law rooted in the 14th Amendment of the Constitution … if it applies to the states … and, and argue in the courts later on that we have the right to take a more expansive view of the First Amendment, say, than you do”. And that’s one of the very interesting things that’s going on right now.
Heffner: Would privacy concerns enter into this last point?
Abrams: Well, it could. Certainly if the Supreme Court were to reverse Roe vs. Wade and say that there was no privacy interest of such nature as to require a finding that abortion is protected under the Constitution, Congress is certainly free to pass a law which precludes the states from banning abortions. Or I would say certainly free … I suppose there are …
Heffner: I was wondering about that.
Abrams: No, there are some people who would disagree. But I think it would be the, the general view regardless of political or ideological background that, that Congress has that power. And so I think we are likely to see very interesting sort of conflict of a sort we haven’t seen in a while between the Court and the Congress, if … as I say, and only if … the Congress stays Democratic. Obviously if the Court and the Congress and the Court and the President are as one then there’s no need for … there’s no push for legislation at all.
Heffner: Has there been any indication on the state level that the Scalia opinion, decision, is being followed up on, that carte blanche has not only been given, but accepted, received as such?
Abrams: No. Not yet. No it has not happened. And perhaps that’s an argument in favor of the more conservative view of this, which is … I simplify it by saying “what’s the problem, why don’t we trust our state legislatures not to do these foolish things that you’re so afraid of’. I mean that was very much the view of Judge Bork, for example, in, in opposing legislation which he called “foolish”, but which he didn’t think the Constitution barred. That is to say, he opposed saying that there was any Constitutional limitation on what the states could do in certain areas, like birth control, the use of contraceptives. My own view is that its more important … it’s very important, in fact, that the Constitution itself be held to bar states from taking certain action and from engaging in certain conduct which I believe violates the Bill of Rights.
Heffner: But you’re a good democrat and I say that with a small “d”. You believe in democratic rule, majority rule … I’m sure you believe in using the legislatures as experimental laboratories for social reform … are you not convinced that it is important to give to … or not “give to” … but not to take away from the legislatures their power to experiment as they see fit? As their public’s, as their voting public sees fit?
Abrams: In lots of areas … in lots of areas. But not in the area of, say, the First Amendment. I mean we have the First Amendment, in my view, as a protection against the majority, so we can hardly look to the majority to protect us against themselves. I mean we have judicial review, we have a Constitution and a Bill of Rights which limits what legislatures can do because, quite candidly we don’t trust either quote “government” unquote or the people, on at least a short term basis. And so, we need some sort of protection against popular “will”, particularly when it overcomes minorities or small groups, unprotected people, and that’s very often. But not always, but very often, the sort of people who come up in First Amendment cases. I mean the sort of person who burns a flag after all, is not exactly a centrist in American political terms. Centrists, like you and me, which I think we are, don’t need a First Amendment. No one’s going to put us in jail for what we say. The people that need a First Amendment are the people that are out of step, that say things that are, that are viewed as “off the wall” and so ridiculous, maybe so dangerous that we just can’t tolerate some people saying what they have to say. And that’s when in the first instance, at least, we need a First Amendment to protect them and ultimately us.
Heffner: Yes, but now how do you relate this … I raised the question before of privacy … how do you relate privacy to First Amendment or Bill of Rights concerns?
Abrams: Well, the right of … privacy is a word which has too many meanings in a way. There’s a privacy right as against the government … abortion, for example, the government can’t tell you not to have an abortion under all circumstance. Birth control … the government can’t tell you that you can buy contraceptives. But the other sort of privacy is privacy against a private institution …
Heffner: Like the press?
Abrams: … in particular the press. And there are individuals frequently, more and more I’d say, bring lawsuits against the press and claim that their privacy is being intruded upon by the press. Now, I think we have to be careful on one important doctrinal level about that. The First Amendment is on the other side of that argument because ordinarily, at least, we won’t let legislatures … we won’t let courts, we won’t let Presidents tell the press what to print. And that means juries, too. So as … in the ordinary course, when you tell “the truth”, say … you’re, you’re clearly protected against libel suits because truth is always a defense against libel. And in almost all cases I think you should be protected against a privacy suit. But that doesn’t mean, even if I’m right, it doesn’t mean that the press behaves well, or comports itself well or is admirable in some of the intrusions as I view it. Maybe not in a legal sense, but in a moral sense … on privacy.
Heffner: Well, I was going to ask … I was going to make that distinction … the legal sense and moral sense. And you, you so well describe privacy as protection from … on the one hand, protection from government. You’re fully supportive, you’re enthusiastic in that area. How enthusiastic are you, can you be when we’re talking about protection of our right to privacy, not from government, but as you describe it, from the press or other institutions?
Abrams: Well, I’m not very enthusiastic about having juries decide …
Abrams: … but I am very disturbed … outside the realm of law … I’m very disturbed by what I see as the occasional, but still serious violation of privacy rights by the press, itself. I, I think the disclosure or the intended disclosure that Arthur Ashe, for example, former tennis champion, but many years ago, tennis champion … had AIDS would have been an egregious and immoral violation of his right to be left alone. And it’s, it’s troubling to me to see so many journalists … I, I think probably not a majority, but a lot of journalists, who are of the view that, as the USA Today editor, I think put it, “he’s a public figure, that’s newsworthy and AIDS is newsworthy. What else do you want?”. Well, what else I would want is some recognition that hurt is being inflicted, harm is being done. And for that story, in particular, it seems to me an unacceptable price was inflicted for the most amorphous sort of public gain … even public interest perhaps. But at least public gain in knowing that a former sports star had AIDS.
Heffner: But now you say “hurt”, “harm” that we begin to get into the area of the law again.
Abrams: Oh, I don’t mean legally. I mean pain. I mean Arthur Ashe has said that he has now been put in the position where he has to tell his little child. And he didn’t want to have to do that because he feels healthy. That, that’s the sort of pain I mean. And that he didn’t want to be subjected to everyone thinking of him as an AIDS victim. Now, now that raises what I consider the only contravening issue here. I don’t think there’s any press side to speak of … on a moral level. But there is an argument that after all, it is so destructive and so unacceptable that AIDS should be thought of as a disease different than all others, a disease that leads to shame, as well as pain and death, that there is a public good being done of some sort in the revelation. My own view is that that should be for Arthur Ashe to decide and, and I feel the same about those publications that have chosen to describe people as, as gay against the wishes of people who were gay.
Heffner: The “outing”.
Abrams: The “outing” process.
Heffner: And the identification of rape victims, too?
Abrams: Usually … yes. I think there, too, that that should generally be left to the rape victim. Now I have to have a little “out” here because there are situations in which I know that my journalistic friends would publish with my moral approval, as well as legal, approval the names of someone who had AIDS. If Arthur Ashe were still the tennis champion and he stopped being champion because he had AIDS and he chose not to tell us … or to take the easier case, if Magic Johnson had retired … announced his retirement in the middle of the season and said, “I’ve … it’s for personal reasons, I’m not going to tell you. And I would ask you all, please, not to go into it”
Heffner: You wouldn’t have respected that?
Abrams: I, I respect what he’s asking, I just know that no one would keep it, and, and no one would abide by that request. And I do think that that is a price that a very prominent public figure pays when he becomes quite so prominent. In this case particularly in the athletic area.
Heffner: Yes, but wait a minute, Floyd when you say that you know that
most people in the press would not respect that question that I ask you is do you
Abrams: I would publish it.
Heffner: You would?
Abrams: I don’t know how not to … I mean that fits every definition that I can think of of …
Heffner: Of what?
Abrams: Of news. Of, of something that is important, too. I mean important, at least in the sports sense and important in a cultural sense. If Magic Johnson hadn’t told us why he was leaving sports after being … or at the very moment he was on the pinnacle of, of the world in that respect vis-a-vis sports, I think it’s impossible not to … Let me offer a different example. Rape victim, you asked me.
Abrams: Suppose the William Kennedy Smith case had been a case in which a woman who had been a Kennedy had been allegedly raped … and so she was the rape victim, or the alleged rape victim. You can’t talk about that story, you just can’t talk about it, without talking about who it is. That’s why you’re there. That’s why the press would attend that trial, is because of the identity of the victim.
Heffner: What would they do in England?
Abrams: I don’t even know the answer …
Heffner: But you can guess.
Abrams: … except that the answer is always …
Heffner: … so …
Abrams: … “No, you can’t publish it. You can’t say this”. I mean England is a marvelous society, but it is not an open society, and on our terms not a very free society.
Heffner: But, Floyd, those are nice descriptives. They’re bad descriptives, they’re descriptive descriptives … forget about them for a moment …
Heffner: … we’re not talking about a totalitarian nation, we’re talking about a highly civilized nation, perhaps one would say even as civilized as these great United States. Now, I wanted to know what they would do in England …
Abrams: They would probably bar it.
Abrams: They would probably … it would probably be illegal …
Heffner: With what …
Abrams: … and it certainly could be illegal.
Heffner: … with what lasting harm … or forget “lasting” … with what harm?
Abrams: The harm is that the public doesn’t know what’s going on. The harm is that, that matters not only of interest, but at least of social significance simply can’t be reported. You wouldn’t report a rape case involving a Kennedy woman, in my example, if you couldn’t describe who it is. You couldn’t report … what … are you telling me that you shouldn’t be able, ought not to be able to report the rape of a female Cabinet official …
Heffner: Fortunately …
Abrams: … a male Governor? I mean at some point one has to say, “Look there is, there is significant public interest in what happens to people of power and influence and it’s important to write about them. Sometimes it will be trivial, and sometimes it will hurt”. One of the reasons that it so pains me, one of the reasons I think it is so painful that the Arthur Ashe thing was played out as it was, is that the interest … the news interest, in my view, was so slight. But when I tell you that had he still been “The Champ” and he retired suddenly, then people want to know why. If, if Doc Gooden … if baseball stars suddenly quit … it’s very hard not to ask “Why”. Now, you may not care about sports or entertainers, and I would agree with you, Dick, that, that on a public policy level they matter less than people in public eye who are doing politics or who are, are affecting the lives of the rest of us …
Heffner: … precisely …
Abrams: … by sending people to war, etc. We made them celebrities, they’ve chosen to become celebrities and it seems to me that while we could continue as a very free society without knowing almost anyone who has AIDS, or almost anyone who is a rape victim … that the more famous the people are, and the more their fame continues at the moment of whatever befalls them, the harder it is to say, “don’t print that”, and the more antithetical it is, to my notion, of freedom of the press.
Heffner: Yes, but you see … well, it’s that last point, that I, in a sense, really want you to push because I find the, the other point so difficult …
Abrams: Really? Why?
Heffner: … to deal with. Because it seems to me that in the example you offer, the Arthur Ashe example, you were offended … I don’t know whether you would accept that word … you were hurt … you were hurt by someone else’s hurt.
Heffner: Right. The editor didn’t think that way.
Heffner: So there is a judgment made there and I think you will grant that in most cases that judgment will be made if it will sell newspapers, if it will hype ratings on television programs, and so forth and so on. That’s their job.
Abrams: Yeah. But I want it to be made, if I could will it … by balancing the pain, if you will, that may be inflicted versus a level of news worthiness about what’s being reported. And, and it’s my position that if you have a case … an easy case for me is a politician … I mean the politician rape victim, or the politician AIDS victim … it’s not that he’s not a human being, it’s not that he doesn’t have a privacy claim on, on our sense of morality, but it is also that he’s a person of great significance and, and that we want to know. And it’s, it’s not nothing to say to the press in that circumstance, “never print it, don’t print it. I don’t want to know”.
Heffner: But you know what, what seems to me to undercut your argument is that the story was printed about Ashe. That was the determination made by an editor, and then it became a news worthy story. In other words, at what point is something news worthy … it’s when it sells those papers.
Abrams: Well, Ashe came forward. I mean what happened was that USA Today intended to publish it if it could confirm it, and as of the time he came forward, they had been unable to confirm it. But they certainly were of a mind …
Abrams: … to, to go ahead … right. And …
Heffner: That made it a story.
Abrams: Well, that, that made it something they were going to do. That doesn’t mean it’s right to do. But, but my view is, if! may, more complex on this rare topic than yours. I think that, that in this type situation what needs weighing is, is ‘Just what is the story that I’m writing”, as against, if you will, “what harm am I potentially inflicting?”. And there are, there are lots of stories … many, many that are significant stories, that the people about whom they’re written would rather not have written at all. Most people would rather not be in the newspaper, because most newspaper stories are about “bad” things, things that aren’t working, society not functioning well. So someone would rather not be in the paper, and would love to call up and often does … often do call up and say “don’t print that … please don’t print that … I’ll suffer, my family will suffer”. It’s important to go ahead and keep printing. All I’m adding to the mix is that if it were possible it would be good to import some notion or sensitivity into that process…
Heffner: From England?
Abrams: No, not from England. England has a, has a sort of insensitive rigidity where, where they decide, the government … the establishment, if you will, what is appropriate to print and what not.
Heffner: Now this …
Abrams: Now they don’t happen to have any privacy law there, but they will.
Heffner: You said “import” and I just had to jump on that … import from where?
Abrams: From their conscience, or from what you and I may hopefully persuade them. Or that, that we as a people, to be more serious may, may, may come to have a shared sense of what’s appropriate and what’s not.
Heffner: Floyd, you know, we get into this situation all the time … we’re at the end of the program already, and I’ve got a million things that I want to ask you, and I can’t today ask you to stay where you are, but maybe before this program goes on the air, we’ll do another. Thanks so much for joining me today, Floyd Abrams. And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you’d like to share your thoughts about my friend, Floyd Abrams, about what he’s had to say, about our program, please write THE OPEN MIND, P. O. Box 7977, FDR Station, New York, New York 10150. For transcripts, send $2.00 in check or money order. In the meantime, 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 Thomas and Theresa Mullarkey Foundation; The New York Times Company Foundation; and, from the corporate community, Mutual of America.