Free Speech/Bad Press

GUEST: Floyd Abrams, Esq.
VTR: 12/6/87

Heffner: I’m Richard Heffner, your host on THE OPEN MIND. I have such great respect and personal affection for my guest today, the distinguished and extraordinarily highly regarded First Amendment attorney Floyd Abrams, that at times I’ve been quite concerned whether our friendship might not be damaged by my sometimes very real, but sometimes merely designed-to-needle-and-provoke-him disagreements over the role that quite absolutist free speech considerations legitimately can play in what may of us would view as the necessary mix and balance of competing considerations that must inform the nurturing of a good society: those having to do with freedom, of course, but others, too, having to do with the norms of social responsibility, morality, appropriate and honest reportage, fairness, privacy, even good taste.

Indeed, it’s precisely because we’ve differed so – on this program and elsewhere in the public arena, as well as in our respective living rooms — that I was delighted recently to see my favorite First Amendment attorney on my favorite television talk show, Ted Koppel’s “Nightline”, just beginning to discuss that day’s hearing before the U. S. Supreme Court of a bitter free speech battle between the Reverend Jerry Falwell and Larry Flynt’s sex magazine, “Hustler”.

For, miracle of miracles, I actually found myself agreeing with my legal friend and advisor. Not so fast and not so far. However Miracles don’t really happen. And I’ve begun to have second thoughts. So, best that we talk about the issues involved…though first, to bring us all up to speed on this matter, let me read the New York Times account of that Falwell/Hustler day in court, our highest court. The Times said, “The Supreme Court took up an important free speech battle between the Reverend Jerry Falwell and the sex magazine, “Hustler” today in the liveliest argument the court has heard in recent memory. Seven of the eight Justices engaged in crackling exchanges with the opposing lawyers on whether the court should overturn a $200,000 jury award to Mr. Falwell for his, quote, ‘emotional distress’ end quote, at “Hustler’s” publication of a savage parody describing him and his mother as engaged in a drunken, incestuous encounter in an outhouse. The packed courtroom”, continued the Times, “erupted in laughter, though not at the parody, at several points in the sixty minute argument…” sixty minute argument, let me skip a bit now and then go on to quote further, “The courtroom amusement notwithstanding, the case turns on serious and novel issues of great concern to press groups, many of which filed briefs on “Hustler’s” side, warning that the verdict against it threatens cartoonists, columnists and others who do sharp, satiric commentary. It is also of concern to public figures who seek protection from press abuse. Several Justices suggested they were grappling with a conflict between the freedom of the press to carry on a long tradition of biting satire and what Justice Antonin Scalia called, ‘The concern that good people should be able to enter public life without being exposed to wanton abuse in print’ “. I didn’t get enough of a chance, Floyd Abrams, to hear you further on the subject, but what’s your own fix on this conflict?

Abrams: Well, it’s a hard case, first of all, I think for the Court for a lot of reasons. Larry Flynt is not the most endearing champion of First Amendment, and if people think of this case as a Larry Flynt case and as a case which is limited to his sort of very offensive, very, very nasty, not terribly socially justifiable commentary, criticism, whatever, that Flynt did, he might well lose, if that’s the way the Court views it. I think he might win and I think he should win because I am very troubled about how in the world we can start drawing lines about material which is either true, but still so outrageous and meant so badly and that hurts so much that we can’t say it, which is one part of what was going on there. I don’t mean this particular cartoon was true. But one of the problems with this legal claim is that it has nothing to do with truth. And that it has nothing to do with notions such as parody, such as cartoons. You can wind up with this sort of tort and you could weed out a good body of the most effective, most important, most probing and funniest criticism of our public figures that we have. And when Jerry Falwell says, “I don’t mean to do that”, I believe him. And when his lawyer says, “We don’t have to do that”, I know he’s trying to come up with some sort of line to draw, but it’s very, very hard to draw a legal line which would say, “Look, this is really outrageous, so we won’t let you do it. And that isn’t, so we will”. Notions of outrage, reprehensibility, just awfulness aren’t legal words. That’s the way you and I would talk to each other. That’s the way people should talk to each other. It bears on morality, it bears on ethics. But it better not bear too much on law because there’s not much lawyers can do with that. I can’t tell our client what someone else is going to think of as being outrageous or offensive. And so long as I can’t, so long as my colleagues who do what I do can’t, then I don’t think that we really want to start down the road of saying, “Look, we know you’re kidding and we know no one really believes…and this jury didn’t believe, that it or anyone else thought that this had really happened. But it’s just so nasty we’re not going to allow it”. I don’t think that’s the way law ought to speak. That’s the way you and I ought to talk maybe about Larry Flynt. We ought to condemn him if we think he deserves condemnation, but not the law.

Heffner: And yet you raise the question as to what these judges on the Supreme Court, given what it was that Flynt and “Hustler” produced here, how they may feel. Do you think there is some real possibility, going back to that discussion of possibility/probability, that they may decide, “This has gone too far”?

Abrams: Oh, yes. Oh, yes, I think so. And I think there’s a real, a real chance of that. I don’t think Justice Scalia was speaking only for himself and I don’t think that that particular sentiment ought particularly to be viewed as a right wing sentiment. Most people think that Larry Flynt goes too far all the time. The question is, do we mean “too far” as the law defines too far or do we mean it as the way you and I would talk about it and say, “Look this is just awful, it’s terrible”. The question here is not that. It’s “Should we allow it?” Should we allow the jury to say, “Look, it wasn’t libelous, it didn’t invade his privacy, but we’re still going to allow $200,000 because it’s really outrageous. It was meant to hurt him and it really made him feel awful”. I am very uncomfortable with those notions making up a tort, a legal claim.

Heffner: I know that you’re very uncomfortable with them. The real question in my mind is, how uncomfortable are you with a continuing, not restrained, not punished, not eliminated production of the kind of material that went into the ”Hustler” story, or picture?

Abrams: Well, first, I don’t think it’s a real major problem. I don’t think it’s “Hustler” that keeps anyone out of public service. If you want to blame the press or if one wants to argue about whether certain types of press coverage keeps people from getting involved in public affairs, it’s not the scabrous magazine, skin trade, which I think keeps anybody out. If the press keeps anybody out, it’s the Washington Post and it’s Time and it’s CBS and it’s the New York Times and I would argue that people that are kept out by them maybe ought to be out, or maybe ought to be in and in ought to re-think whether they go in or out. But I think it’s a false issue, really, to think that people don’t get involved because of this way-out, terribly offensive fringe of which “Hustler is a part.

Heffner: That argument again that there is something protective in being way-out, even further out because no one is going to take it all that seriously, is that what you mean?

Abrams: I mean that it’s a small part of American publications. I mean that the sort of people who public figures tend to care about most, don’t read…I don’t think…read “Hustler”. I mean that I just don’t believe that as any of the candidates thought about running for President, or Senator or Mayor, they said you know, “What is ‘Hustler’ going to say about me, or make fun of me or ridicule me? Well, what is ‘Screw’ going to say? That’s a genre which is so small, the sort of thing Larry Flynt engages in, is engaged in by such a tiny element of American magazines that I don’t think it has any impact on public behavior at all. I do think the more establishment press has an impact. But as to them I think what they do is much more defensible.

Heffner: Well you say, “No impact on public behavior” and you’re picking up there the quote that I read from Justice Scalia about not keeping good people out of public life. But what about private concerns? Now we say that Reverend Falwell is not a private person in the Sullivan definition. But he is a private person. He hasn’t chosen yet to run for office. Do we have any additional concern there?

Abrams: Well, I think Reverend Falwell, as everyone else, is entitled to some degree of private life, even though he’s a public figure. I think that of people even more famous, well-known, maybe even powerful than Reverend Falwell. Some but not a whole lot, as a legal matter. I don’t think that it will keep Reverend Falwell from doing anything or becoming anything or saying anything or representing anything if we allow disagreeable material like this to continue to come out. What I think you’re focusing on though is something which has nothing to do with whether it will have any impact on behavior. It’s “what shall we do about his feelings”?

Heffner: As the jury felt.

Abrams: Indeed. And that’s where I get off the boat which the jury was on. I can understand being offended by this. Certainly most people if they had this said about them would be very offended by it. And if their friends say, “Look, don’t worry about it. It’s just ‘Hustler’ “, I understand that they wouldn’t be entirely satisfied just to hear that. But my answer is that if you balance the sort of private need, the psychic need of a Jerry Falwell for some sort of jury vindication, legal vindication and money, against the public advisability of not cutting down on really robust and uninhibited commentary, on making sure that all of us can really go and beat up on Reverend Falwell or Teddy Kennedy or anybody who’s a public figure, freely and in a really full fledged, tough manner. I think that’s really important. And I’m not willing to sacrifice that or risk sacrificing that by saying, “Alright, let’s throw Larry Flynt over the side because you know…Larry Flynt, come on”. I hear that in the air and I understand it when people say, “What’s the good? What’s the use of having a Larry Flynt out there publishing stuff like this?” And I’ve got two answers. First, you can’t have law which is everyone but Larry Flynt. We can’t draft law like that, for all sorts of good reasons. And the second is, even Larry Flynt has something to say, on occasion which is interesting enough or worthwhile enough for some people that we ought not start down the road of saying, “Too much. Too much for you. I’ll be reasonable. You can’t be unreasonable”. Because Justice Harlan, great conservative Judge, phrased it once in an opinion. He said, “One man’s vulgarity is another man’s music”. That’s the way it is. I think that what Larry Flynt said was vulgar and worse. But there are people who laughed. And there are people who learned something. And I’m not prepared to start cutting down on his speech for some psychic benefit that it might give Jerry Falwell.

Heffner: But if the high court feels otherwise by a majority vote, we will then be in that position…

Abrams: Yes.

Heffner: …at that point, at each step along the way, someone is going to have to make a decision, a Judge or Judges, whether the line has been passed. Don’t you feel that that judgment can be made, that similar judgments have been made in other areas?

Abrams: Well, they have but with great discomfort. One of the reasons I think Flynt may win this case, notwithstanding the discomfort he brings about, is that I think the Supreme Court as an institution and its members are so unhappy with obscenity law, as it is developed, so miserable about the idea that juries sit around looking at dirty pictures an judges sit around giving them charges, instructions, which hardly anyone understands, and then we wind up with a really first rate Supreme court Justice, Potter Stewart, saying that much quoted line, “I can’t define it too well, but I know it when I see it”.

Heffner: And he saw it.

Abrams: He saw it. But the problem is, that’s not law speaking. And one of the reasons I think Flynt may win is that I think even the really conservative members of the Court, even the members of the Court most offended by what Flynt has done, even members of the Court surest that there’s no loss of any significance out there if we say, “Look, you just can’t say things like this”…Is that these members of the Court will also say to themselves, “What are we going to say to the jury? How are we going to judge when it gets up to us? Are we going to use words like ‘outrageous’ or ‘reprehensible’? Are we going to “know it when we see it”? Are we going to have to start down that road again?” The very difficulty of drawing lines in these other areas, which you rightly point to, is an argument and a very powerful one, against starting down a new road with a new tort named “intentional infliction of emotional injury”. And that’s one of the main reasons one of the most powerful arguments that Larry Flynt’s got going for him and one of the realest fears that members of the court of whatever ideological First Amendment whatever have, “How are we going to say this so that we can come out with a consistent and predictable body of law?”

Heffner: I remember when you were here once, Floyd, and you had just written a piece in the New York Times magazine on the failure of our efforts to recover for libel. It sort of works the wrong way. It does the wrong thing. Do you think that in a situation such as the Falwell/Flynt/”Hustler” case, it’s possible to have a different kind of judgment than upholding a jury’s $200,000 verdict so that we can satisfy the public need that I think you share in part an that you feel you understand, and still some maintenance of a maximum of free speech?

Abrams: Well, it’s very hard. I mean one can try to draft something, the court of Appeals for the Fourth Circuit tried it. They said they were taking account of First Amendment interests. If Flynt loses and Falwell wins, I am sure that the Supreme Court will write something which says, “We are taking account…we must and we will take account of First Amendment interests. Cartoonists, don’t worry, satirists, don’t worry. We will really take care of you. Because what we’re saying is…” and then they fill in the blank. The problem is that how do you then tell people what the law is? Well, maybe one way to do it is to say if you’re being explicitly political, that will give you even more leeway. We’ll have a sort of floating, balancing test where the more political you are, the more protection you’ll get, and the more personal you are, the less protection you’ll get. Problem, though. What are we going to do about parodies of Gary Hart? It’s personal, very personal. It has had major political ramifications. It’s going to be tough. Maybe they can just draft an opinion using words like “vulgarity”. The law doesn’t take account of things like that so far. When we talk about what’s obscene, we then go and write a lot afterwards about how to define what we mean by obscenity. And we use words that we try to put meaning into. And it really hasn’t worked very well. I meant the people that want too clean up the streets aren’t happy, the civil libertarians aren’t very happy. It’s a very unsatisfying, unsatisfactory body of law. If Flynt loses, and he may well, they’ll try to draft something and they will say in effect, message to judges and juries, “Look, don’t cut out political or social commentary, but you are entitled to do something about material which is only designed to hurt, maim, give pain to…”…things like that. You can talk like that.

Heffner: See, Floyd, you could write it yourself.

Abrams: I could write it, yeah. I’d be the most dangerous one writing it. But it’s a problem, you see. If you start writing it then you start getting into motivational tests. If you say that if it has no political context, then you’ll wind up with expert witnesses. Someone will ask you to testify and say, “Look, could you come down to South Carolina and testify for me that this particular cartoon has some value, not a whole lot? But some political statement it’s making”. Well that’s what we do in obscenity cases.

Heffner: Yes. And you’re saying the difficulty with obscenity cases is so great that the judges now are likely now not to get into that same pickle.

Abrams: It’s the only reason, by the way, that I think Flynt might win. It is not, I think, that the courts are reluctant to allow a recovery in a case in which things like this are said. If they could find a way, satisfactory to themselves, to make sure that Flynt falls on the wrong side of a line that they are creating, and that they’re not going to have enormous difficulty applying this new body of law in the future, I think there would be a majority in the court for doing it. But I think Flynt’s big chance comes here, as I said, from the enormous difficulty of writing a meaningful document which says who’s on what side of the line.

Heffner: Well, as I read that piece in the Times the other day, the report on the argument before the high court, I couldn’t help but wonder whether the judges have read the hidden absolutes of the First Amendment, the absolutely magnificent speech you gave out at UCLA early in November 1987. When Roger Rosenblatt, our friend, was here I referred, in my first copy to a gracious essay he had written. And he point out to me it was the wrong word…if I wanted to say “graceful”, I could say that. Here I think it’s graceful, but I also think it’s gracious in what it gives to those who want to find a way of holding on to their First Amendment concerns. I’ve always needled you as an absolutist in this, and you have said here, and you’ve said elsewhere that where you stand depends upon where you sit and you sit as a prime attorney in the First Amendment field. The hidden absolutes of the First Amendment, do you think there’s any way of moving away from that posture, and still defending ourselves against the worst incursions? I know that your feeling is essentially “no”…

Abrams: Look, I think there are lots of areas in which we have lived with and ought to live with bodies of law which impinge into an absolutist view of the First Amendment. For example, to take an easy one, libel law. We can argue about how to frame libel law or what we ought to do about libel law, but I think it’s a good thing to have. I think it’s an essential thing to have and I don’t think the First Amendment, Justice Black to the contrary, makes libel law or should be understood to make libel law unconstitutional. There are other areas of law in which it’s even easier. I mean no one would argue, not Justice Black, certainly not me, that espionage laws are unconstitutional because they make it illegal for a spy to tell another spy what he’s learned. But my point in that speech was that what we have been doing in this country legally is saying to ourselves and saying out loud to each other, “We don’t have an absolute First Amendment. It may say ’Congress shall make no law’, but we’re too smart to say that no law means no law”, and so we leave ourselves some leeway. And then when we go and interpret the First Amendment on a case-by-case basis in a lot of areas, certainly not all, but in lots, we then say, “No law does mean no law”. And we just won’t allow anyone, any judge, for example, to say, “Look, you’ve been in court, you’ve listened to what happened in court today. Don’t print that”. But the law’s clear on that, in that area at least.

Heffner: But, Floyd, could that possibly be because our legal institutions haven’t yet caught up with that good sense that leads us to say there can’t be absolutes?

Abrams: I don’t think so. I think what the judges have come to and that that’s a good example, I think, what the judges have come to is the sense that in some areas, although not all, we can answer questions. We can really answer them. We can say, to use my example, “You, a reporter, were in court. You saw something. I, a citizen, was in court. I saw something. The state can’t do anything about it. They might have been able to keep us out, maybe. But once we’re in, once we see it, once we know what happened or think we know what happened, the state has no role at all”. I think those are marvelous affirmations of First Amendment thinking. As Ollie North would say, “It’s a neat idea” that sometimes we can say, “There’s an answer to that problem. We’ve worked it out”. Only in America have we worked it out. And the answer, sometimes, is, “No. No, never. We really mean it”. We can’t say that all the time and we shouldn’t say it all the time. But in some areas we really can.

Heffner: In the very beginning, we have a minute left, the very beginning of this UCLA speech you talk about, in effect, original intent. Just between us, if we rally could go back to old Tom Jefferson and Madison and the others, do you think they’d be embracing what it is that you’re doing now? They, not the First Amendment, not the document, but they as individuals?

Abrams: I guess I think if they were here today, I mean if they could stop in, spend a month in America, and then answer the question, I think they’d be on my side.

Heffner: The same feelings, the same attitudes?

Abrams: I think so. I think if all you could do was make a telephone call to them, and say, “Look, here’s a quick question, just answer me yes or no”, then I’m not so sure.

Heffner: Floyd, you’re not talking about telephone calls…

Abrams: (Laughter)

Heffner: …you’re talking about television.

Abrams: That’s right. For psychic transmission.

Heffner: Floyd Abrams, thank you so much for joining me today on this fascinating, from the point of view of listening to you, discussion. I know you’ll come back and talk about the First Amendment again. And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s themes, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an 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 Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wien; and The New York Times Company Foundation.