Free Speech Issues

GUEST: Floyd Abrams
VTR: 11/17/83

I’m Richard Heffner, your host on The Open Mind. Not long ago, Floyd Abrams, the distinguished legal specialist on First Amendment and freedom of speech issues, wrote an article in the Sunday New York Times entitled “The New Effort to Control Information.” Its effort, to document the degree to which the Reagan administration is obsessed, according to Abrams, with the risks of information, fearful of both its unpredictability and its potential for leading the public to the wrong conclusions. As evidence, he cites administration efforts to limit the Freedom of Information Act, its efforts to bar the entry into the United States of certain foreign speakers, its efforts to assure that more rather than less classified information should be made available to the public, and its insistence that all government officials who have had access to high-level classified information for the rest of their lives be required to submit to official censorship material they may write for the general public. Had this article appeared a few weeks later, it might have cited too the administration’s initial banning of the press from our invasion of Grenada.

Clearly, Mr. Abrams is enormously critical for this desire for secrecy on the administration’s part. And I’d like to begin our program what he thinks lies behind what he characterizes as an unprecedented, across-the-board rejection of the values of information. Mr. Abrams, what does lie behind us? Meanness of spirit?

ABRAMS: No, I don’t think so. I think the opposite. I think self-assuredness, a sense that they are in possession of themselves and of the truth, more or less, and more rather than less. I think it’s their view that they know pretty well what the proper bounds of debate are, that they know pretty well what sort of information is constructive, unconstructive, useful, not useful. They don’t think they’re doing anything wrong, anything inconsistent with the First Amendment, anything antithetical to our history. I think so, because what I think is that what they are doing is an across-the-board rejection of one of the things that makes us so special as a country: the sense, the mood of openness. The idea that the public is entitled to information about its government. I don’t think they really believe that.

HEFFNER: You know, in your article – and I thought maybe you would get onto this – after indicating what you’ve just indicated, you said, “Beyond this there lies something far deeper. The administration is not only generally conservative, its policy is rooted in the concern that Soviet armed might vastly outstrips that of this country and immediately imperils us. With such a world view, claims of national security seem invariably to outweigh any competing interests.” Now, if you mean that, basic to their approach to information is that world picture, then can you blame them?

ABRAMS: Well, I can blame them, because it seems to me very important not to superimpose a world picture which is itself at least debatable, whether or not it’s right, over the answer to the question of what sort of information we get about our government. But it’s one thing to speak in a metaphoric sense and say, “It’s almost as if we were at war.” But we’re not at war. And to act as if we were, to behave as if the slightest leak of information will, as I said, immediately imperil the country, is not only possibly to exaggerate the immediacy of any threat to us, but surely to deprive the public of information which they’re entitled to when we’re not in a war.

HEFFNER: Yes, but Floyd, we’re taping this program on November 17, I think it is, 1983. The events that have transpired since you wrote that piece might lead one to say, “Well, they knew we were going to be at war of a sorts. They knew about Grenada. Maybe they didn’t know about the attacks upon our marines in Beirut, but we are in a sense in the state of war.” Would you have a different point of view from that?

ABRAMS: Well, I do. I think it’s very dangerous to talk about being “in a sense” in a state of war, and therefore say, “Well then let’s act as if we are,” for purposes of deciding what information the public gets. I mean, after all, even if the invasion of Grenada was justified, the idea that the public shouldn’t have as much information as possible about, say, a prospective invasion of Nicaragua, is, so far as I’m concerned, inconsistent with what makes us what we are. The idea, for example, that the administration wouldn’t give visas to Sandanista leaders whom members of Congress wanted to listen to is absolutely insupportable. I understand why they’re doing it; they think it’s a bad thing for them to come up here and maybe persuade some congressmen to vote against them, maybe persuade the public that our policies vis-à-vis Nicaragua are insupportable. That shouldn’t be their business. They’re not entitled to make those decisions.

HEFFNER: What do you mean?

ABRAMS: And they’re making them all the time.

HEFFNER: Why do you say, “It shouldn’t be their business; they’re not entitled to it?”

ABRAMS: Because I think that our country is based on the notion that we should have the freest possible access to the most diverse views. It may be that not only are Sandanista leaders wrong, but that if they come here they will persuade congressmen to vote the wrong way. Those are opinions. We don’t allow our administrations to make those type decisions for us. They can go do things, but they can’t keep us from thinking things and learning things and trying to affect policy. By keeping out people from the country – and this is only one example of what my article is about – by keeping Americans from learning the views of foreigners about what’s going on out there in the world, they deprive us all of a chance to pass judgment on them. And my view is that’s inconsistent with our history, something they’re not entitled to do.

HEFFNER: For we’ve had one president talk about the moral equivalent of war, in something other than James had, and now we have another president who is acting in terms of the moral equivalent of war.

ABRAMS: Yeah, but Orwell would have understood though, we have to be careful not to let language overcome us. “The moral equivalent of war” is a phrase. It has an allegorical value to it. It helps us to understand how important what that president thought he was saying was. That’s different from saying, “Let’s act as if we are so imperiled that we just can’t take the chance of information getting out to the public. That we won’t let former government officials comment without being censored by the government itself on the actions of the government.” I would agree – I think I would agree – that if this country were, you know, a day or two away from the nuclear holocaust, of course I would agree that the government should have much more power than it ordinarily does, even in areas touching on First Amendment freedoms. But what this administration has done is to keep information from the public which has no bearing on that, on one level. And to the extent it does have a bearing on it, is being stopped not because we are imminently at peril of extinction or anything, but because they think it’s sort of nasty business, that it’s unattractive speech that may persuade people the wrong way. That is, to coin a phrase, an unamerican way to view that issue.

HEFFNER: But wait a minute. You say, “Unamerican.” It’s a very American way of viewing that issue in terms of some substantial parts of America, and some historically too. Is that unfair?

ABRAMS: There are people who are in favor of it, yes. And we have had …

HEFFNER: You think more or fewer? Tell me right now.

ABRAMS: I think fewer. I’m not talking about Grenada now, and I don’t … the public seems … I’m not so sure now what the public thinks about the treatment of the press vis-à-vis Grenada. A few days ago it seemed very clear that they were all with the administration on that. I’m not so sure now. But I think on issues like the secrecy order or the lifetime secrecy order, that the public is not badly represented by the Congress. And the Congress has suspended for six months, or it seems about to, the imposition of that secrecy order. Now, I understand this is not the most exciting of issues to a lot of people in the public, not an issue which most people would decide whether to cast a vote on. That doesn’t make it any less important or any less an issue with which the public comes to care about. And so I do think that if you look back at our history, and if you look at the mood of America today and in past years, I think totality of these actions, unknown in the Nixon administration, in the Ford administration, let alone in the Carter administration and Johnson administration, say, is quite at odds with what we’re used to, with the way we have come to live with each other. And I think that if it were better known that the public would be even more against it.

HEFFNER: You say that, that you want to dismiss what you would concede was, from the polls that were taken, a different point of view right after Grenada, right? But the public did not seem concerned that the press was prohibited.

ABRAMS: That’s correct.

HEFFNER: You’re saying now …

ABRAMS: But the public, it seemed, while it was not concerned, indeed it seemed, at least for a time, that the public fully supported the administration’s views.

HEFFNER: So that fits in … Well, that sort of fits into – I don’t want to put words in your mouth – but it seemed to me a few moments ago, you were saying, with a sort of smile on your face – no, not a smile – something that after all, if we were just two days away or two hours or whatever from nuclear holocaust or the threat of it, you might bend your First Amendment concerns, your free press concerns.

ABRAMS: Right.

HEFFNER: Who in the world, though – and I hate to ask you this question, because I happen to share your opinions, but I know that one has to ask – who better than the President of the United States can say we are at that moral equivalent of two days away, two hours away.

ABRAMS: That’s very clear, the president has not said that. I mean, it is not his position that we are there. They’ve not said that. They have said there are a lot of leaks out of Washington, and we really ought to do something about it. And then when you ask them, “Well now, what is it that you’re talking about? How many times has this happened?” When you ask lawyer questions, if I may, the answer is, “Well, not very many.” And it’s not especially high in this administration; it’s just always been a problem. We want to deal with it. I think they’re telling the truth. I think that they have decided to address problems that they think are of longstanding, not of immediate interest. They can wait for six months. I think their concern is that they think these are intolerable things. They don’t want Mrs. Allende to come into America to speak. They don’t want former foreign service officers or former defense people to write critical articles about them based on the knowledge that they have about what the government is doing. They think that that is unacceptable. And they would defend it, I believe, to themselves on the ground that it is harmful to the national interest, but not on the ground that the speech itself immediately imperils us. Even they can’t believe that, and they haven’t said it.

HEFFNER: But, you know, you do make that concession to them.

ABRAMS: I make the concession that they think of the world in a sense, and America’s position in the world as being imperiled. I don’t, I think, make the concession – I don’t, in fact, make the concession – that they think that the speech is of a sort which will cause immediate or imminent harm. It’s an impossible argument to make. How could they say, for example, that it is necessary to delete from the classification guidelines a provision which President Carter had inserted saying that people who classify information should at least consider the public right to know information? How could they possibly think that the deletion of that – which is what they’ve done – is something that is immediately necessary for the preservation of the safety and security of the country? I don’t think they think that. I just think they think that doesn’t belong there at all, that that’s a misallocation of thought processes. And they’re wrong.

HEFFNER: You know, I have to ask you then: What damage does it do?

ABRAMS: Well, the damage is both long-term and short-term. And part I don’t know, because I don’t know what information we’re not getting. Things like the secrecy order haven’t really taken effect. I know that when we talk about public issues, we need information. When we talk particularly now about, sort of, scientific issues, about technical issues, about defense issues, about intelligence issues, the people we want to go to first are the people that have served in government in the past. And that will be so when President Reagan is long out of office and there are people going back to former Secretary Schultz and former Secretary Weinberger for their views. I want them free, as well as other people, to express them without having to clear their views with their successors. And it may be, I hope, that their successors will revoke these guidelines immediately, “with a stroke of the pen,” as President Kennedy used to say. But if they don’t, we will lose something.

HEFFNER: Are you satisfied with what the condition was of the freedom of speech in this country before the present assault?

ABRAMS: No, I certainly am not, although then and now, I must say, I mean, our condition is spectacular compared with the rest of the world. But compared to what it could be here and what it has been in certain areas here, it has been significantly declining. But it’s perfectly clear, they’re not putting people in jail because of what they’re saying. They don’t have thought police out in the street like 1984. What they’re doing is something quiet and surreptitious and in good faith. They’re depriving us of the data from which we can make up our minds about things.

HEFFNER: When you talk about declining, you talk about a trend, you talk about a movement. You say, in the rest of the world, forget it.

ABRAMS: Yes.

HEFFNER: We are paragons of eighteenth century concern for freedom of speech by contrast.

ABRAMS: We are.

HEFFNER: But you talk about a decline in that. Therefore, without reference to a Reagan administration, a Carter administration, the next administration, what do you think must happen, given the dynamics of our civilization? As you see it, what’s your prophecy, what’s your guess as what will happen in the freedom of speech area? No wishful thinking.

ABRAMS: Right. I think in the courts that we will have a regression in the future, based on my sense of the personnel likely to be on the courts in the next ten or 20 years.

HEFFNER: You say the courts generally, not just the Supreme Court?

ABRAMS: Well, I really mean the Supreme Court most of all. I think that in terms of the general body of legal protection that we as citizens have against our government or our governments, that we will be looking back to the 1970s and trying to preserve, so far as we can, the hard-won gains in cases decided by the Supreme Court in those years. I think that the hope that exists, therefore, is less in the courts than in the Congress; and if anything, even less in the Congress than in the people. I really do believe that on this issue the public generally is of the view that it wants and is entitled to and ought to have as much information as is possible. That leaves leeway of course. It doesn’t mean certain secrets, it doesn’t mean certain things which can’t be revealed. Reasonable people can argue about what those categories of information are. But I think that the public generally has come to accept as a given, in an almost eighteenth century fashion, as a given, their right to information about the workings of their government. And I think that that gets transmitted to the Congress. And so, even in an administration, this one or a successor one, which really doesn’t come easily to the notion of widespread distribution of information, that the Congress is there and the public is there. I think there’s reason for some real hope there.

HEFFNER: “The public.” Defined how?

ABRAMS: I really mean the public defined in the broadest, most amorphous sense. The people as one meets them on the street. The people as one polls them. The people that write letters. One of the remarkable things, I think, about this administration, in this area, is that I don’t think they’re doing it for political reasons at all. If anything, they’re paying some political price for it. They’re doing it because they think it’s right, at some cost to them. And again, my sense, as you know, is that what they’re doing in good faith is very, very harmful. And so I think that, on a long-range basis, the public will continue to think what I think they think, which is that they have certain rights. It’s not “a” government out there; it’s their government. And that that’s not just rhetoric; that they at least have a genuine personal right to information about what’s going on.

Now, a part of that is … A part of what I’m saying is affected by my view of the press. I think the press has got to do a lot of leading, and a lot more than it has, actually, in this area, in terms of caring.

HEFFNER: Why do you say, “A lot more than it has?”

ABRAMS: I think the press has been pretty flabby on this issue. I think the press is pretty good, indeed, quite good, in reporting about losses of press freedom. The administration has not done an awful lot directed at the press itself. What it’s done is more long-range and more circuitous. It’s cut off the sources – it’s trying to – of information for the press and for the public. And the press just hasn’t been awfully good, I think, in reporting to the public about the totality of actions taken by the administration in this area.

HEFFNER: Now, if you see the problem here and you drag me kicking and screaming so that I see the problem, why doesn’t the press? Or does it see it, and for other reasons not report?

ABRAMS: I don’t know the answer to that. I think that a part of the answer is that some of the areas in which the administration has cracked down on information, the press has traditionally not reported about much. The question of visas for example is not exactly a hot issue in this country. And the press just doesn’t cover it much. I think as well that the press has an undue reluctance to be thought of as being sort of political about this, as if they’re picking on the administration. And even more of a reluctance to seem to be self-serving. And so a combination of these factors, I think, has led to a real underreporting, a diminution of discussion below what it should be, in this quite important area.

HEFFNER: You know, I was thinking recently, in following, reading your article and then realizing later when the president kept the … when the administration (that’s the only fair thing to say) kept the press out of Grenada initially, I couldn’t help but think of Lyndon Johnson, March 31, 1968, he withdrew from the race for the presidential nomination of his party. The next day, went up to Chicago and addressed the National Association of Broadcasters and said, basically, put it on the line, if in World War II there had been the kind of press we have today – and he was thinking largely about the electronic press – bringing all this horror story on the home screen night after night after night, we would not have been able to have pursued to the ultimate conclusion our efforts in World War II. Do you think perhaps sometime about that and feel, “Well, there’s some truth to it, and we’d better watch out?”

ABRAMS: I think there’s some risk to it. I think there’s a lot more game to it. For one thing, not all wars are like World War II. For another, and much more important, I think, it’s a good thing, a necessary thing, for the public to have information from which it can decide what it wants to have happen, even with respect to wars. I understand the argument. George Wills made it, among others, very eloquently, that we can never get the country together to fight another war unless we keep the press out. And, well, the answer to that is, we will get the country together if the country shares common views. It’s not the press which makes them, and it’s not television coverage which keeps them from being in agreement. They are in substantive disagreement about certain matters. Now, if all that’s being said is that war is so gory, so unattractive, so brutal that we won’t fight it if we know what it is, even a justified, a good war like World War II, I think we have to trust to ourselves to do the right thing, but to do it with information instead of without it. In short, we can’t behave like children. We can’t say, “There are some things so terrible I don’t want to hear about it. I don’t want to learn about it. I just want you to go and do that. Go fight these wars, but please don’t show them to me, because they’re very unattractive.” That’s not a grownup way to talk about things.

HEFFNER: But the administration too is saying, in a sense, “We cannot act like children. There are certain things we must do. We must tough it out. Yes, some people’s liberties will be limited, but generally the public will, or the public interest will be best served by this action, that action, unexamined.”

ABRAMS: Well, they do say that …

HEFFNER: I know.

ABRAMS: … or they do think that, at least. And the problem with that is obvious. Sure, they can be right that this course of action or that course of action may be a good idea or a bad idea. What they’re risking is our right to pass on that, and our right to be involved in that decisionmaking process. It’s not my view of how this country works that we simply elect a president and tell him he can go do what he wants, certainly in terms of invasions, in the next four years. That’s not the way it was supposed to work. And if we don’t have information, and if we don’t have it fast, we can’t play the role that we’re entitled to play.

HEFFNER: It’s so interesting, you say, “That’s not the way it was supposed to work.” And then one can reply: Where is it written? And you will say, “In the Constitution and the Bill of Rights, etcetera.” But where is it written that one doesn’t find new views becoming true views? And if indeed the rest of the world, as you asserted before, does not share this point of view, is some respect not to be paid to the opinions of mankind in relation to free press, free thought, and an effective government?

ABRAMS: I prefer to look back to our own history for our guidance on issues such as this. And that’s where it’s written. It’s written in our newspapers and our history books, and in our encyclopedias. The fact is, for example, until the invasion of Grenada, the press was always present when American troops engaged in large-scale combat such as that. That’s what we did. Now that doesn’t …

HEFFNER: And Lyndon Johnson said, “Look what happened.”

ABRAMS: Oh, I understand. That’s what Lyndon Johnson said. There are those who think Lyndon Johnson got what he deserved, and that the country maybe should not have been in Vietnam, and that it was a disaster from the start. That’s a political question. But the question of whether we should be involved in the resolution of that question, the question of whether the public itself should be able to pass on what’s going on in a Vietnam, say, is, I think, a quite different one. Let me pose the question a different way. People talk about Grenada now and ask, as you asked me, “Is there a legal right for the press to be present in Grenada?” And it’s not such an easy question. It seems to me that if the government had dared kick the press out of Vietnam and said, “Look, we’re under combat conditions there. We can’t have you there.” That’s a case, I know, the way people that do things sometimes know the answers to them, I know that would have been won in the courts. Notwithstanding that there are no prior cases quite on point, it simply is unacceptable to say, “We’re going to have half a million men fighting overseas, but we’re not going to have the press there to be a sort of independent monitor, flawed to be sure, but independent at its best, about what they’re doing, how they’re doing, why they’re there, whether we should stay there, and the like.” So I think the question shouldn’t be viewed simply as a Grenada question; it’s a public information question. And if President Johnson had problems with the press being in Vietnam, as I say, the problems may not be those of the press being in Vietnam, but our country being in Vietnam.

HEFFNER: Then you may have to deal at some point with people who feel as President Reagan does about our involvements, even though tangentially perhaps they share your concerns about freedom of speech. You know, the trouble with doing programs with you, Floyd, is that I always end up at the short end of the stick because I’ve got to bait you. And I do appreciate your coming back and making these statements. Thanks so much for joining me today.

ABRAMS: Thanks a lot.

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