Free Speech Issues, Part II

GUEST: Floyd Abram
VTR: 7/22/83

I’m Richard Heffner, your host on THE OPEN MIND. Some time ago, a lawyer said about his adversary at the bar, “Abrams has a silver tongue. I’ve watched lawyers mesmerize juries before, but Abrams is one of the very few lawyers I’ve ever seen who mesmerizes judges and other lawyers”. Well, Abrams is Floyd Abrams, my guest today, partner in the prestigious law firm of Cahill, Gordon & Reindell (noise)…many as our nations’ most militant advocate of free press rights under the First Amendment to the Constitution. Mr. Abrams and I have just finished recording one OPEN MIND program, and now I want to move onto this other one with this extraordinary member of the bar.

Thanks for staying rooted, at least in your seat, if not in your ideas, Mr. Abrams.

ABRAMS: At least in my seat. Okay.

HEFFNER: You know, I was interested in a comment that you made in a piece in The New York Times Magazine in August, 1977 on “The Press, Privacy, and The Constitution”. You said, “In the end, the press is the surrogate for the American public”. Who chose it?

ABRAMS: Well, I think the Constitution chose it, but I think history also chose it, the surrogate in the sense that we don’t all walk around with microphones. The surrogate in the sense that the way we have of communicating with each other as a people is insufficient on a person-to-person basis. And so we have to have some ways for information to be transmitted to the public as a whole. And that, for better or worse, is the press.

HEFFNER: But I thought our surrogate was the Congress, the House, the Senate, the Presidency, the Supreme Court, perhaps. Why the press?

ABRAMS: The press, most of all, and the press at its best, as a check, a sort of overseer on all those institutions of government. What the press dies, at its very best, is to assure, by being there, by watching, by embarrassing, by reporting, and by galvanizing the public to assure that these institutions of government and that the institutions which run private society work. And if you ask yourself, “Suppose we didn’t have a press?” one is left really with nothing on the outside, because this is not something that private people are able to do by themselves.

HEFFNER: Yes, but I’d come back to a question relating to the yardstick you so frequently use, First Amendment. Now, in our other program, you declined the title of absolutist. You declined the description of,”I’m not a First Amendment voluptuary”. You said you weren’t. You didn’t like that term anyway. But here, if I search the Constitution of the United States, I find reference to the Senate, to the House. I find reference to the Presidency. I find reference to a court system. I find reference to the press in a minor fashion in an amendment. Why have you chosen the press to be this surrogate? Why not say the President, elected by all or most of the people? The Senate, elected by the people in the various states?

ABRAMS: Obviously, I don’t do this lightly – and I mean to disagree with you on history –

HEFFNER: But?

ABRAMS: But, it seems to me that it is a misstatement to refer to the First Amendment and the reference to the press in the First Amendment as minor, and to refer to it as, so to speak, as just an amendment. Jefferson and other leaders of the country would not have gone along with the faming of the Constitution or the adoption of the Constitution had they not been promised the insertion together with it of a Bill of Rights, one significant part of which was that the First Amendment, and one significant part of that was the protections of that amendment, or freedom of expression of each of us, and for the press in particular. So I don’t think it is accurate – certainly it is not, in my view – and I wonder if you would really say it again if I pressed you hard enough, that it was just an amendment and a minor revision. Beyond that, it is my view that, while various sections of the Constitution do indeed set forth powers of the presidency, powers of the Congress, powers of the courts, that the limitations on those bodies, those official bodies, are what the Bill of Rights is all about. And what the Bill of Rights protects us against is the misuse of power of these institutions. And the way it does is by freeing all of us to think what we think, to say what we say. And that includes, and indeed that includes specifically, that the press.

HEFFNER: Sure. Of course. I agree with you that I would not repeat it in quite the same way. And I do want to needle you, and I do want to draw you out. I’ve been successful. But, it does seem to m e that to raise the press to the level of surrogate, it is the surrogate for the American people, is to stretch what the founders intended. And I wonder why you do that.

ABRAMS: Let me say why I do it. I do it as much as anything else because there’s nothing else out there. Because if I asked myself, “From whence comes the watchdog which will guard against government abuse?” It is one answer to say, “Separation of powers will do it; the other branches of government will do it”. It’s another answer to say, “The federal system will do it. Maybe the states will have a check on abuse of power”. It doesn’t seem to be enough to say that. And it doesn’t seem to me to be saying anything near enough to say, “The people will do it”. The people can only do it if they have information. And the only place in our society that they can get information from about the government, and surely the only place that they can get information about the abuse of power by the government is by the press. That doesn’t mean the press does it well, or nobly; it means that‘s all there is. And that’s why, it seems to me, that the press which often does it well and often serves the public has got to be left alone by the government as it goes about its task.

HEFFNER: Well they you put your emphasis upon an informed public.

ABRAMS: Yes.

HEFFNER: Does that mean that you subscribe to the so-called positive approach to the First Amendment?

ABRAMS: No, I really don’t. The positive approach, the sort of generalized right of the public to know, or to know everything, it seems to me, goes too far, both as a matter of what, I think, the framers meant, and, at least as important, in terms of the policy results of that conclusion. If there’s a general public right to know, where does it stop? Do we have a right to knew what goes on in the secret conferences in the Supreme Court and executive session of the Senate? In the Oval office of the White House every minute of the time? I don’t think so. I think we have a right not to be told what to say, not to be told what to print, and that if we simply leave alone the public’s mouths, minds, thoughts, by not allowing the government to get in there, if we do that alone, we’ll have gone a long way towards assuring a meaningful right to k now. That doesn’t mean we’ll know everything. But I don’t think we have a right to know everything. What we do have a right is to think anything, and to say just about, but not quite, everything we want to say.

HEFFNER: But not the right to learn?

ABRAMS: We have a right to learn, but it is a subsidiary right. It’s really a value, I think, which comes from the first Amendment, rather than something which the first Amendment itself provides.

HEFFNER: Isn’t it the objective? Isn’t it the baseline? Isn’t it the objective that we all have to hear, to speak on the other hand, to hear, to watch, to listen? Aren’t those all aimed at our capacity to learn?

ABRAMS: To a considerable degree they are, but it seems to me that to embody in law too much of the right to learn will necessarily have at least one result. And that is, if the government’s going to start telling us, at least via the courts, and maybe via the Congress even, what it is we have a right to learn. It seems to me we can’t take that sort of risk. If we once say there is a right to know everything or almost everything, well then the next stop of the argument is what they’re not telling us. And then one goes to court, and then a court says, “Well, not that; this. Not that fact; some other fact”. I don’t want courts involved in that business at all. I don’t want Congress involved in that business, except to the extent that I think the Freedom of Information Act is a useful tool. But it’s not required by the First Amendment. And it seems to me that it is an over-reading, and a dangerous over-reading, of the First Amendment to say that the effect of having a First Amendment is that there is a legally enforceable right to learn, to know just about anything you want to know. The legal right, it seems to me, has to be the right to say, to think, to feel, and in most situations but not all, to act consistently with how you say, feel, think, etcetera. There are some actions, of course, which are criminal in their nature. But as a general matter, it goes too far. And it proves too much to have a right to know which sweeps everywhere. Because one of the effects of that is that finally we’re going to be told, “Well, if the right to know goes everywhere, we’re telling you it doesn’t go anywhere”.

HEFFNER: You know, it’s interesting you say, you again use these almost sweeping, almost absolute terms. In our previous program, you were saying that you don’t share this absolutist approach. You don’t, when it comes to libel, for instance. Why do you step back in that area?

ABRAMS: Well, for a few reasons. First, I find it very hard to sustain the proposition that, as a textual matter, or as a matter of the understanding of the framers of the Constitution, that libel law was unconstitutional. Now, that doesn’t always hold me back. So I don’t want to limit my remarks to that.

HEFFNER: You mean as an advocate.

ABRAMS: As an advocate. I have made some worse arguments than that. But it is troubling to make an argument which I think is really not rooted at all in our history. And I think a total abolition of libel law is not rooted in our history. Beyond that, I think it would be a significant error from the point of view of the press and from the point of view of the public, as a matter of policy, to abandon libel law completely. I think we at least need the safety valve of someone being able to go to court to try to clear his name if he feels that he has been wrongfully attacked about something. I want to make it hard, because I think it’s important to have the press, as the Supreme Court has said, the robust and uninhibited and free spirited. I think those are very important, constitutionally-rooted values. But they don’t go far enough for me to say that we shouldn’t have any libel law at all. And I think the public would deeply resent the notion that anything can be said any time by anyone, however knowingly false it is, and that there should be no redress in court at all.

HEFFNER: That’s a passing strange argument, because the public probably resents a lot of the expressions that you have defended.

ABRAMS: I think the public does. And you’re quite right. The public does. I think the public would resent it even more if we got to a point of saying that there is no redress at all for a person whose reputation has been damaged by deliberate falsehoods being uttered about him. And the fact that the public thinks something is not, in and of itself, a constitutional reason to overcome First Amendment protections. The purpose of the Bill of Rights, after all, was to withdraw from the public the power to enforce its will in certain areas, one of which relates to freedom of expression. Nonetheless, as a policy matter, it seems to me important not to get so far out of line with what I take to be the public desire and the public sentiment, particularly when the public sentiment is, in my view, consistent with that of the framers, and consistent with that of our history. And it seems to me that to argue that there shouldn’t be any libel laws is insupportable.

HEFFNER: To move fro libel to a question that I was asking our friend Richard Salant not so long ago at this table, talking about the fairness doctrine, talking about the public’s perception that it wants maximum freedom of expression. And this was the result of the public agenda study a year or two ago. But that it wants fairness. How do you address yourself to this question? Are these antithetical concepts?

ABRAMS: The concept of an informed public, the concept of a free press, and the concept of a fair press, are not, in my view, antithetical. Where the tension comes is when the fairness of the press is governmentally required, and governmentally imposed. And here you come to the same paradox that we talked about on our last program. If, on the one hand, you say that the press is free or the broadcaster is free to put on one view without putting on some opposing view, you are running a potentially abusive situation. On the other hand, if you say that a governmental agency, sometimes acting in good faith, sometimes not, is empowered to say under a, quite, fairness doctrine, unquote, you really ought to have something else on. It seems to me that that is the graver risk. If I can personalize it, it seems to me that if the government were to say to you that because of my views expressed here today, you have to have someone on this program or on this station to express the view that the press has gone too far and that we really ought to do something bout it, and that the First Amendment is not as protective as I think it is, that that is far more egregious, for more dangerous for the public’s right to know information than it is for you to choose just to have me on and not to have on someone that disagrees with me.

HEFFNER: But, you know, you’re talking about what the government may say to me…

ABRAMS: Yes.

HEFFNER: …or to the station. I find it perfectly acceptable that I should have to work within the framework of fairness, have to, in terms of my own standards, and work within the framework of government of the United States, that says we assume, in this free country, that you will be responsible. And I will accept those responsibilities because I think I should have someone here who will say, “Floyd Abrams? My goodness. He’s wrong here, he’s wrong there, he’s wrong in the other place”. Because I can’t do that adequately, mostly because I agree with you. And if I needle you, that’s not enough. I do have to have an advocate. I do have to have a robust expression.

ABRAMS: but do you have to have a government official telling you that? I don’t believe you do.

HEFFNER: Well, if I don’t do it, then what is going to happen, in reality? If I don’t do it, who’s going to make me do it?

ABRAMS: Well, no one.

HEFFNER: Okay. Would you accept that?

ABRAMS: I would accept that much rather than having a government official, in effect, come to you and say, “He’s pretty far out. Your really ought to have someone a little more conservative or a little less expansive in his views”. It seems to m e that you do not take the view of the first Amendment, which, in the words of my colleague Vince Blasi from Columbia, is sufficiently pathological. There is a view which our courts have very often taken of the First Amendment. It’s not an unfair representation of my own views. Vince Blasi used it. And it’s a pathological view of the First Amendment.

HEFFNER: Do you have to be sick in the head?

ABRAMS: Not sick in the head, but that we are so fearful of governmental intrusion that we simply are not about to start down that road. And I can cite to you – broad brushed, to be sure – but I can cite to you the world around us as my lesson plan for you in asking you to be persuaded not to allow governmental agencies to tell you what’s fair.

HEFFNER: You know, the trouble is that you don’t have to point it out to me because – not that I’m so smart, but – I see for myself how censorship, for instance, is prevalent around most of the rest of the world. And I fear it, as you do. And I’m concerned, as you are. What I had noted here about Abrams, he indicates that it’s wrong for the power of the government to impose upon individual privacy. Right? You don’t want the long arm of the government to stretch out.

ABRAMS: Right. Right.

HEFFNER: But why is it acceptable for the long arm of the press to impose itself upon my privacy or your privacy?

ABRAMS: Because we must choose. Because if we’re really…

HEFFNER: Why must you choose?

ABRAMS: …to be intellectually rigorous about it…Well, we have to choose a system. If we are to frame a system, we have to put authority, power, somewhere. We risk a lot, whatever we do. We risk abuse, wherever we put the authority. My position is that to put certain types of authorities in the government over what people may say or over what people must say, is to risk a kind of abuse far beyond anything, any kind of press abuses. Nothing that you and I say today or that any of your guests says today however outrageous – however outrageous – it seems to me, begins to run the risks of abuse as much as allowing a government official to tell you what’s fair. Now, that’s an assertion. I take it you don’t agree with that assertion. But it is my view that to oppose, in governmental authorities, politically appointed commissions, a commission appointed by elected officials, is to put the wolf in the sheep’s pen, as it were,. They are the people that we have to be most afraid of. And to say that they can tell you what’s fair is to put the, sort of, burden of harm in the future in the wrong place.

HEFFNER: Look, you know that I don’t really disagree with you, but I do have questions. And the questions do relate to historical matters. You talk about the founders. You are very much involved with, though you are not an absolutist, or a voluptuary of the First Amendment, you are very much involved with it historically. There’s that yardstick. But the objective of the First Amendment, ultimately, the objective of that whole document plus its amendments, that had to do with freedom of the individual. It had to do with opposition to power where power was. And power was then resident in the hands of government. And more and more people feel today that power resides in the hands of the media. How do you respond to that? And I don’t say that challengingly.

ABRAMS: Yes. Yes. Well, first I say that there’s some truth to it. There’s a lot of power in the media today, and probably more power today than there was at the time of the framers. But second, I say that we have to make decisions about what type of power concerns us most, even if we were rewriting constitutional principles. And what concerns me most, and what I think should concern people most, is the risk that the very people who can conscript you to the army, who can put you to jail who can tap your phone, who can do all the things that are done in democratic societies, let alone in repressive societies, that they are entities against which the Bill of Rights not only are directed but should be directed. And that doesn’t answer the question of what we should do about the press. The press makes mistakes. The press acts irresponsibly sometimes. The press acts arrogantly sometimes. How can we shape a society which, in the one hand, deals with that, and on the other hand, doesn’t give the government too much power? It’s easily said, more easily said, of course, than done. But it seems to me that, as we deal with that, we have to keep our eye on t he ball. And the ball, as I see it, is avoiding the abuses of governmental power which the framers saw and which we see around us. Now, consistent with that, we can have libel law, we can privacy law, we can have copyright law, we can have other bodies of law which, in one way or another, limit what the press can do. But they have to be light handed. They have to be done delicately. They can’t be done in the role which will significantly inhibit the press in going in doing what it does best.

HEFFNER: All right. Then I want to ask you a question. I know you’re going to answer me perfectly honestly.

ABRAMS: I am.

HEFFNER: If you were able today to start anew, to write that fundamental document, would it be written in terms of contemporary realities, 200 years later? Would it be written any differently?

ABRAMS: I think if I were going to write it today, I would write it, if not exactly the way it is written now, so close to it that at least in most situations one wouldn’t notice the difference. When we deal with a constitution, John Marshall italicized, “Constitution we are expounding”, he said. When we deal with that, then it seems to me that we have to write for the future, for the 200 year future. And then we have to use broad language. We have to use language like, “Congress shall pass no law abridging freedom of speech or of the press”. I couldn’t do an awful lot better than that. I don’t think I could do better than that at all. There have been some proposals, for example, to include the electronic media in that definition, to include other forms of media to make clear that cable, in the future, that various new forms of technology in the future will be encompassed within the First Amendment. I feel much more secure, for a lot of reasons, leaving the language just the way it is, even if I could change it. But let me say I view that as at least as conservative a proposition as it is anything other. It seems to me that labels get rather easily affixed in this area about what’s absolutist and what’s not absolutist. Absolutism has a bad name in law these days. One would never call oneself an absolutist. I think it’s basically a conservative American view, consistent with longstanding principles of American federalism and American democracy, to have a broadly written, a very broadly written charter of freedom annexed to the constitution, and not to play around with it.

HEFFNER: So that, 200 years later – and I really wasn’t asking you to play around with it; I wasn’t asking you to do this lightly, but very seriously – charged with that by our ancestors. But you wouldn’t then write into our fundamental document, our fundamental law, anything that recognized this new shift of power in our times?

ABRAMS: No, I wouldn’t. I wouldn’t. If I were rewriting it, the areas I would think about are the same ones Madison thought about. I would think about, “I wonder if I should put in freedom of conscience”, which is one of the things Madison thought about putting in and couldn’t get in. And I would think about whether I could phrase it in some way which would hold back future legislatures, future courts, from cutting in too much. But I wouldn’t put a word in it to change what I believe to be its basic thrust.

HEFFNER: We have 30 seconds left. Going back to one of the first questions in the other program: Are you sanguine about the future of the First Amendment?

ABRAMS: Reasonably so. On this I’m the moderate. We’ve had some bad cases in recent years, but we haven’t had any core losses. The First Amendment remains strong. We’re the freest people in the world, and it’s in good part because we have the First Amendment that, in general at least, has been held to mean just what it says.

HEFFNER: You know, I’m going to have to get you back here again, if you’re willing to sit there, not this time, but another time, to talk about other countries and their approach to press freedom and why and how they’ve survived.

ABRAMS: Yes.

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

ABRAMS: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope that you, too, will join us here again on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.