Free Speech Issues, Part I

GUEST: Floyd Abrams
VTR: 7/15/83

I’m Richard Heffner, your host on THE OPEN MIND. There are at least two fundamental ways to approach the matter of privacy and the press at a time when print has been so widely supplemented by electronics and the mass media loom so large in our lives. One is to deplore the extent to which media generally have imposed themselves upon the individual in contemporary society, to invoke the image perhaps of 1984. The other is to view with alarm the so-called explosion of privacy laws, and to be ever more fearful that it will further an further erode the First Amendment guarantee of press freedom in this county. Well, no one has clung more tenaciously to this second horn or our dilemma than my guest today, Floyd Abrams, partner in the prestigious law firm of Cahill, Gordon & Reindell.

Mr. Abrams, let me begin our program today – I think of you always in terms of defense of the First Amendment – and I wrote myself a question so that I’d be free to read it and not get caught up in any complaints about an invasion of your privacy or whatever. But I wrote: If you were asked by a press client for an opinion on whether legal action might successfully ensue from press involvement with an individual’s privacy and individual’s life and lot, where will your efforts, where will your advice fall? What larger moral and political questions or principles will guide your efforts? Will you be concerned about the privacy that an individual should enjoy, or only with the freedom of the press?

ABRAMS: Well, I think I’d have to answer the question, if a client asked me, in two ways. First, a strictly legal answer; and I would tell them what I thought the law was. And the law does afford individuals who believe that the press has proved too deeply into their private lives some degree of redress against the press. There are situations in which individual about whom even the truth has been told can go to court, at least in most states in the country, and sue the press. And in some situations, at least, recover. More broadly – and I find your question more interesting on the broader level – if my client was one that was interested in my broader views, I would tell the client that I think that the privacy area is probably the one where the press knows least and has the most to learn, probably not from me, but the most to learn and the most to think about, because it’s an area which is very hard for the press. It’s one thing to say to journalists, “Get your story right”. If the story’s true, no one can win against you for libel. Truth is an absolute defense to any libel claim. But it’s quite another thing when you’re dealing in an area which is an amorphous as that of privacy; amorphous legally and amorphous morally. Because when one tries to draw the lines and tries to answer the questions of: How far should the press go? To what degree would the press report, even about public officials, quote, private, unquote, lives? It’s very hard to answer those questions. And I’m delighted to chat about those issues with my clients or with you, but they’re very hard and very interesting issues.

HEFFNER: Well, who should do the teaching? Who can do the teaching? If you say the press has a lot to learn, who’s going to do the teaching?

ABRAMS: I think that, in this area, most of it is sort of self-learning. But self-learning affected, and significantly affected, by the public response. I think one of the problems, for example, that the press, the television press, particularly local news, has had in America, is that that which they do which is most offensive is also that which they do which is most rewarded. What you and I might think is the rather gross treatment, on occasion, of microphones being thrust near the mouths of grieving widows – which I find, I have great distaste, myself — unfortunately, that has, a lot of stations around the country, that sort of, quote, aggressive, unquote, journalism, to very high ratings. The rewards are there. That doesn’t mean one has to do it. And some stations, certainly, don’t do it. But it’s a hard quarrel to make, because there is a very significant public response which is, on the one hand, hostile, and on the other hand, responsive. People tend to watch local news stations which are more rather than less intrusive. And hence, there’s a real quandary.

HEFFNER: Well, let’s go back to this matter of: the press has a lot to learn. Why may not the courts be a teacher?

ABRAMS: Well, the court can be a teacher. The problem is, the risk is, is the court the entity, as an entity of the state, that we want to be involved in that sort of teaching role? Are we prepared to entrust to the courts a sort of teaching task in areas which, at least in good part, are areas of what is good taste and what is not good taste? At least in the area of libel law, you have certain principles you can hold onto, as I’ve said earlier. Get the story right and no one can successfully sue you for libel. In privacy, though, you run into a quite different situation. Get the story right, and someone may still sue you, and might be able to collect from you if a jury or a judge finds that it is too intrusive, too close. That it deals in an area, quote, not newsworthy, unquote.

HEFFNER: Is that morally unacceptable to you?

ABRAMS: No, it’s not morally unacceptable to me. It’s politically and ideologically and jurisprudentially unacceptable to me. My view is that I’m not willing to entrust to the courts that degree of power by which the courts would make decisions relating to what I consider, in the most part, to be questions of taste.

HEFFNER: But you are willing to entrust that power to the press itself?

ABRAMS: Yes. And I’m willing to say without any problem that the press misuses, abuses that power sometime; but simply to put the question then, as being what decision maker we want out there to focus on this sort of question. My view is, and I think it is, at least, in general, consistent with that of our history. It is that we are unwilling to entrust to any organ of the state that degree of content control over what may be printed or what may be broadcast. And that what we learn, looking around the world, is that we can’t take that sort of risk. Now, when I say that, I’m also including a corollary of that: If I’m not prepared to entrust to the state, including the courts, that sort of power; and if I am saying, therefore, that it goes back to the press, their own judgment, their own response to the public response, I’m also saying that the press will sometimes abuse it, and that that is a risk I would rather take than the risk of government abuse.

HEFFNER: What is the tendency now in American jurisprudence? Which way are we heading?

ABRAMS: Privacy law has not really exploded to the degree that some of us, myself included, had thought it would or was a few years ago. We seem to be moving, but at a rather glacial pace, towards a situation in which almost anything which can tolerably be called newsworthy can be printed so long as it’s true. Now, that still leaves open questions. Cases come up involving, let’s say – and these cases have arisen – a kidnapper in a house where the person in the house calls to the police, the police come, television cameras come, and a naked woman runs out her door, and a live camera picks it up. Or, a camera films it and shows it later at night. Clearly newsworthy. Ought they to run it? Certainly, if it’s on tape I would say no. One case in Idaho which arose, which divided the Idaho Supreme Court for years and years, of the station manager of a television station was fired by his management for broadcasting that after it was on tape. I wish they wouldn’t broadcast things like that. But I must tell you that I think that it was a newsworthy event. And I am troubled about letting even that sort of issue be decided by the courts.

HEFFNER: You say so easily in both of these illustrations, “newsworthy events”. What made them newsworthy events?

ABRAMS: First, I think, criminal behavior, by its nature, tends to be newsworthy, at least as I would define it. Second, events in which the police are involved as the instrumentality of the people, are events which are newsworthy. In a situation in which there’s an ongoing crime, where the police come to apprehend the individual involved in the crime, I find it – maybe I say it too easily – but I find it easy to conclude that what has occurred is a newsworthy matter.

HEFFNER: I must admit I did question, that’s why I do question this easy assumption that they’re newsworthy. What would not be included in newsworthiness? Where do you draw the line?

ABRAMS: Well, I would not include, certainly, what private people basically do in private. What the woman does in her house is basically her own business. If a woman is kidnapped, if the police are called in to a kidnapping, it becomes a news story. That doesn’t mean to me at all that journalists are obliged by some First Amendment obligation to broadcast or to print everything that they learn about it. And as I’ve said in the particular fact pattern that I gave you, I would prefer, as that station manager preferred, that that tape not be shown. But I don’t have any doubt for myself that if you take out the image of the nude woman, which is an intrusion upon her, I don’t have the slightest doubt that the cameras come into the house, that the cameras interviewing the police, that the cameras with journalists interviewing her after she’s freed, are, in my view, entirely appropriate kinds of journalism.

HEFFNER: Yes, but I’m aware of the fact that you included the nude sequence as newsworthy. In fact, you were the one who stated that. You didn’t say that there simply was a kidnapping, but there was a kidnapping in the course of which a nude woman ran out of the house, and this was newsworthy.

ABRAMS: Well, my view was that the kidnapping and the juxtaposition of the police, on the one hand, and the crime and the criminal on the other is a newsworthy event. I didn’t say – in any event, I don’t mean – that the picture of the woman coming out is something that has to go on the air. But the event is an event which I think is a genuine and legitimate – however you define it – legitimate public interest. I don’t think that the filming of the woman meets that definition.

HEFFNER: Have you ever defended a newspaper person, perhaps, or press person, electronic or print, who did go inside a house, whose inclination was to find newsworthiness not on the surface, not in somebody running through the streets, but in what does go on in our minds, in our heads, in our hearts, in our homes?

ABRAMS: No.

HEFFNER: Could you? Would you?

ABRAMS: Would I defend them?

HEFFNER: Yes.

ABRAMS: Sure.

HEFFNER: You mean you’d defend anything?

ABRAMS: No. But I would defend a client of mine, even if he did something of which I disapproved. I don’t put myself up as the moral arbiter of the behavior of American society. If a journalist that I represented did something even which I disapproved of, I don’t have any reason to say that I’m not going to represent him. I might well – he might well – lose the case, and perhaps he should, but there’s no reason why I shouldn’t represent him.

HEFFNER: And when we turn the tables, would you take – this, of course, is a question I’ve asked so many of the members of bar who have been at this table – would you take any case? Do you feel everyone has his day in court due to him and you, as an officer of the court, have some obligation to…

ABRAMS: No, I wouldn’t take any case. I certainly don’t feel that everyone has a right to me or any other lawyer in particular. I have a decent amount of leeway about what I choose to do with my time and how I choose to devote my talents, such as they are, but they are not decided solely on the basis of whether I believe someone is guilty or not guilty, or ought to win or ought to lose a particular case.

HEFFNER: Well, I was thinking of this particular thing – and I think you know this, in this very wonderful piece on you in The American Lawyer – “Would he represent” – talking about this fellow, Abrams – “Would he represent The Inquirer on its appeal of the Burnett, the Carol Burnett case, if asked? ‘Yes’, Abrams replies, unhesitatingly. Would he ever take a plaintiff’s libel case? ‘No’, he says, emphatically”. Now, how and why would you so blanketly say, “No, you would never take a plaintiff’s case in a libel suit”?

ABRAMS: I think if I were involved in rewriting, or suggesting to the author a rewriting of that article, I might have said, “’No’, he said, hesitatingly”. I’ve thought, on occasion, of representing a plaintiff in a libel case. I think from my point of view, at least in most circumstances, it would be an unattractive act on my part. I’ve spent a good part of my professional career learning from journalists, learning from editors, learning about what they do for a living, learning about how they function.

HEFFNER: Why “unattractive”? Why do you use that word?

ABRAMS: I think for me to turn that knowledge, which they have paid me while I learned to learn, against them, is not very attractive. This is not a question…we’re talking now about a right to counsel. Plaintiff…

HEFFNER: No, I understand. I’m talking about you.

ABRAMS: Yes. We’re talking about me. My view is that, while I can imagine the plaintiff’s case, and I sometimes think about what it would have to be, I can imagine a plaintiff’s case that might lure me into the fray. It would have to be an extraordinary situation. My own view is that I have, more or less, cast my lot with a particular segment of American society. But you act as though I’m the only lawyer.

HEFFNER: No, no, no. I think you’re probably the best lawyer in this area. But I’m not talking about a client’s right to have Floyd Abrams represent him or her. What I’m talking about is this very interesting rigidity. You say you’re – if I may paraphrase you; and if I’m unfair, say so – “I’m rather frozen into this mold”. It doesn’t sound like First Amendment consideration. Ideas don’t freeze that way, do they?

ABRAMS: But that is not in my role as an idea-giver. This is in my role as an advocate, as a professional spokesman, as it were. I have my own times when I have doubts about, certainly, what particular journalists do. And, indeed, I disapprove of what particular journalists do. In my professional garb, I view myself as, in good part – and it’s not all I do, but in good part – representing journalists, representing newspapers, and representing television stations. I like them. I think they do good work. I think they serve society. And when they do bad work, and when they disserve society…

HEFFNER: You’re still going to represent them…

ABRAMS: I assume that they will lose their case, but I don’t choose to be the instrumentality which causes them to lose their case.

HEFFNER: You mean there’s no higher law?

ABRAMS: There is a higher law, but it doesn’t relate to my representation. There are two higher laws. One higher law means they will lose come cases, and they probably should. The other higher law is that we are all judged in a fashion which is not just by law alone. And it is that which leads me to think sometimes, when I am more reflective, that it might be nice. It might be fun. It would be mind-expanding.

HEFFNER: Right, too?

ABRAMS: I don’t think there’s a right or wrong about what side a lawyer represents in a particular case, but…

HEFFNER: That’s what puzzled me about this business about being unwilling.

ABRAMS: But I’m not unwilling because it’s wrong. I am unwilling because…

HEFFNER: It’s just this business of knowing the trade secrets?

ABRAMS: Well, it’s not just that. It’s a few reasons. One is the trade secrets. One is a personal orientation. As I’ve said before, I tend to like the people, enjoy the company of people who are journalists, and who very often get sued. I’m not saying they shouldn’t lose their cases on occasion. I just don’t happen to have to be the one that causes them to lose it. And there is a third aspect of it as well. And that has nothing to do with anything except the fact that I would have problems with some ongoing clients. I like to think, in any event, that if I were to turn such talents as I have against what might be viewed as the cause, if I were to be the instrumentality, for example, of bringing about a change in law which hurt not just a particular transgressing journalist but journalists as a group, it would be very hard for me to explain. And rightly so, hard for me to explain to some clients about why I had done it.

HEFFNER: But if you were to do it, and if you were to be successful, it wouldn’t be because of some act of magic. It wouldn’t be legerdemain. It would be a hard case, fought well, and decided not by Floyd Abrams, who would be the attorney at the bar, but of the court itself.

ABRAMS: Right. Oh, you’re quite right. Look, I have no doubt. It is one of the liberating things of being a lawyer in American life in general, that you are assigned, as it were, a side. You don’t have to decide what’s good for society or bad for society. Someone sends you into the fray, and you go and do it. And you don’t have to feel bad about it, generally. I’m in the fortunate position where I can generally feel good about it, for some of the reasons that I stated already. My own sense is that there are other lawyers who will win those great victories against the press, and that I can better devote my talents to the other side.

HEFFNER: You know, there’s…

ABRAMS: But I’m still tempted.

HEFFNER: You are?

ABRAMS: I’m still tempted on occasion.

HEFFNER: What will you take over the divide?

ABRAMS: I’ve been tempted on some – I mean, I haven’t been asked all the time – but I am asked on occasion by potential plaintiffs. And I think to myself, if the article is really malicious enough, not in a legal sense, but in the lay sense, that we would use the word with each other, really malicious enough, harmful enough, unjustifiable enough, and suppose I really like the plaintiff enough, then mightn’t I be tempted to put everything else to the side and adopt the arguments which you’ve asserted earlier and to say, “I’m not the embodiment, I’m not the spokesman for the press. I’m just a lawyer”. And maybe I would go to court and represent that plaintiff against that horrible example of journalistic malfeasance. Maybe. Maybe. I’d like to think about that sometime.

HEFFNER: That smile on your face makes me think that this phrase, which wasn’t yours, but our teacher’s, “I’m not a First Amendment voluptuary”, may literally be the case that you aren’t a First Amendment voluptuary. Although some people have said you are.

ABRAMS: Well, I suppose there are some people who think that my knee jerks every time I hear the word “First Amendment”. And I don’t thin that’s — I don’t like to think – that’s a fair description. “Voluptuary” is not a word one tends to use about oneself.

HEFFNER: But it’s a beautiful expression.

ABRAMS: It’s a beautiful expression while you’re putting someone or something down.

HEFFNER: Right.

ABRAMS: I’m a fan.

HEFFNER: Absolutist, rather than voluptuary?

ABRAMS: I’m not an absolutist, but I’m getting closer all the time. As a matter of fact, as the courts tend to be less absolutist, more in a balancing mode, more reasonable. More responsible, more sober, all the attractive phrases that one uses in this area, I tend to, a little bit more, and then again, still a little bit more, in the direction of saying we need firmer rules, clearer guidelines, less ad hoc balancing in this area, because I am concerned about the direction that that balancing has led us.

HEFFNER: I started my professional life as a historian, an American historian. You can take the guy out of history; you can’t take history out of the guy. I find, in my recollections of the founding fathers, that balance, reasonableness, the law of reason rather, those phrases were very meaningful. And it seems to me that you’ve just said when reason, when balance, when an understanding attitude, when those things begin to emanate more and more from the court, I want to become more and more absolutist.

ABRAMS: What I really mean to say is that those worlds are very often a euphemism for courts going and doing what they like. And that I believe that there is a need for a considerable degree of rules in this area so journalists can gauge their behavior beforehand, so lawyers can advise beforehand, what can be printed and what can’t. For example: We have a firm rule. It’s an absolutist rule. We don’t like to use the word “absolutist”. Opponents of policies call them absolutist. We say truth is an absolute defense in a libel case. Absolute defense.
Even if you mean to hurt someone. Even if it really hurts someone. Even if there’s not great social purpose in saying it. If I tell the truth about you on this broadcast, you cannot successfully sue me. I agree with that policy. I don’t think that you ought to be able to get in front of a judge and a jury and say, “Look, but I have been hurt, and he didn’t have to say it”. And so I think it’s really important that we have a lot – not total – but a lot of lines drawn, and clearly drawn, in advance, so people can decide how they can behave, and so we can avoid, as I said before, a sort of ad hoc decision-making by the judiciary in which judges become little more than second-guessing editors, and in which judges say, “I really wish you hadn’t printed that. I wouldn’t have printed that”. Now, that, in my view, is not law speaking at all. That is lawyers and judges who sort of wish they were journalists. And I think we have to resist that very hard.

HEFFNER: Now, does that make Abrams a First Amendment absolutist?

ABRAMS: Not really. Not really. But it makes me edging in that direction.

HEFFNER: Why do you say “not really”?

ABRAMS: Because I believe that there ought to be libel law, for example. Justice Black, who was a First Amendment absolutist, thought that libel law was unconstitutional. That’s not my view. Because I can at least conceive of circumstances and admit that there may be circumstances in which some limitation on the press’ right to print, certainly in the area of espionage law, certainly in the area of genuine national secrets, is constitutional.

HEFFNER: Pentagon Papers?

ABRAMS: Pentagon Papers, it seemed to me at the time, it certainly seems to me 10 years, 12 years after the event, is a classic example of why we can’t be too relativistic about this, why we have to have rules, even if the rules are, you can hardly ever get a prior restraint on publication. Because if you just look back at the opinions of the U.S. Supreme Court in 1971, you see that a majority of them even then, and surely a majority of this Supreme Court, would have said, and indeed did say, this will be harmful. Notwithstanding that they said the Times can print it. But a majority thought it will be harmful. And one of the things that strikes me again and again as I look over this field as best I can, is that people tend to predict harm from publication, from broadcast, and that they’re rarely is that harm that they predict, particularly in the national security area.

HEFFNER: That’s the whole prior censorship.

ABRAMS: That’s the whole prior censorship problem, is that there is a good-faith effort by the government to look ahead and to say, “If this is printed, it’s going to be awful”. And they go to court, and they say, “Don’t let them print it”, and they have an affidavit from the Secretary of Defense saying that if they print this, terrible things will happen. What’s a poor judge to do? Well, all we can give a judge is a body of law which says, “You have to be so persuaded that the world is going to come to an end in order to enjoin publication, censor publication in advance, that you really have to be sure. And if you’re not sure, don’t do it”.

HEFFNER: One thing is sure: this program has come to an end. Stick around, we’ll do another one. Thanks, Floyd Abrams.

And thanks, too, to you in the audience. I hope that you, too, will stick around with us next time here on THE OPEN MIND. Meanwhile, as an old friend used to say “Good night, and good luck”.