Look Who’s Trashing the First Amendment … Redux

GUEST: Floyd Abrams, Esq.
VTR: 12/10/03

I’m Richard HEFFNER, your host on The Open Mind. And the reason I call today’s program, “Look Who’s Trashing the First Amendment … Redux”, is because today’s guest and I did a program on that subject right here just precisely a half dozen years ago.

Partner in the prestigious New York law firm of Cahill, Gordon & Reindel, renowned Constitutional attorney Floyd Abrams had then, in fact, just used the title for a Columbia Journalism Review article after attending a symposium on “Speech and Power, Is First Amendment Absolutism Obsolete?”.

It was organized by the historically Liberal center/left magazine, The Nation. And who, indeed, had been trashing the First Amendment? Well, lots of its old Liberal center/left friends leading Floyd Abrams to write, “there is news about the First Amendment, it is indeed under attack again, but this time, it’s most consistent attackers are on the Left and many of its most powerful defenders are on the Right”.

So that I want to ask my guest whether in the past half dozen years since then, things have gone up or gone down? Do they look better or worse, Floyd?

ABRAMS: I think that it’s gone more in the direction that I was writing about six years ago than not. That is to say, I think we’ve had a number of situations in which the more Conservative members of the Court have been the First Amendment defenders and the more Liberal ones have been the ones opting in favor of more regulation by the government, even if there’s some payment to be made in loss of speech.

So I think it’s …I think I was prescient. No, I really do believe that, that, that has been the direction for a few reasons, but not least that the cases that the Court has had, have often been ones in which Conservatives happen to have an attachment to the First Amendment and Liberals happen not to.

Unfortunately there aren’t many people in my view who care enough about the First Amendment … whatever the issue is … I don’t mean the First Amendment has to win all the time. But, but it is distressingly predictable that in certain types of areas, Liberals alone care about the First Amendment. Sexually oriented speech, for example, where the equivalent of book burnings. Mayor Giuliani’s mis-behavior with the Brooklyn Museum. And there are other ones in which Conservatives are, are eloquent defenders of the First Amendment. And I mentioned a few in my article, and there have been more cases since then in the areas of abortion protests, for example.

Very recently, of course, in the area of campaign finance legislation. Where the 5 to 4 vote on the Supreme Court had the five members of the Court who were basically sustaining the McCain/Feingold law, essentially treating the problem as a serious and important regulatory issue. But not a big First Amendment issue. And the dissenting Justices, the more Conservative members in the main, treating it as essentially a Constitutional issue. One relating to the core of the First Amendment. And that was precisely what troubled me six years ago and it troubles me even more now.

HEFFNER: You say the more Conservative members treating it as a Constitutional …

ABRAMS: Yes.

HEFFNER: … issue. Why do you not give that to the more Liberal members of the Court, who in the recent five to four decision did uphold campaign finance?

ABRAMS: Basically because the more Liberal members essentially treated the problem as a problem of fixing an electoral problem.

HEFFNER: MmmHmm.

ABRAMS: That is to say, there was a problem, too much money, too much potential for corruption, too much suspicion of corruption, too much possibility of corruption … so the next issue was essentially, “well, surely Congress can play a major role in solving that?”. And the only question left was, “well, is this the sort of thing … is this in the realm of what Congress can do?” And the answer was asserted, “Why not? It’s within the realm”.

Whereas the, what I call the more Conservative members of the Court were saying, “We start with speech. There is speech here. Hard core First Amendment speech occurring around election time and the, the Government and the Congress and the bill signed by the President is taking action which will have significant impact on that speech.” Can we possibly permit that?

What sort of showing would we need to permit that sort of direct impact on speech? In my view the … again … this is an oversimplification … but the more Liberal members of the Court didn’t really take the speech issues terribly seriously.

HEFFNER: Floyd, we’ve talked about this, or something like this many, many times here.

ABRAMS: Yes.

HEFFNER: And I’ve always been puzzled why, when you say “Constitutional” issue, you don’t include that part of the Constitution … its Preamble, for instance. That made important reference to the general welfare. Isn’t that as much a Constitutional issue as what we find further down in the document?

ABRAMS: No. We had an Amendment. We had the Bill of Rights as Amendments to avoid simply relying on the text of the Constitution as it had been written. If mere reference to “general welfare” could carry the day, it would carry it all the time. I mean Congress really rarely acts in a sort of lunatic way. There’s always some basis, some potential justification for what it does. And, and taking Congress at its best, is because Congress thinks it’s doing the right thing.

The right thing being to serve the public. To serve the general welfare. But that would leave no protection at all for interests as important as free speech interests; because for one thing they sometimes conflict with what the Congress, at least, thinks the general welfare is. And for another, even if they don’t conflict, Congress is not the body that routinely spends much time factoring in Constitutional norms unless it absolutely has to.

Now there’s another part, Dick, to what you’re asking me, and I … you and I in a way have talked about it in the past and I’ve been thinking about it a lot, recently and that is the, the issue of whether you could say, as Justice Breyer has, both sides have the First Amendment. It’s not just the First Amendment that I’m talking to you about. Justice Breyer and other people, very serious scholars are of the view that the way one should view a lot of issues is to say, “the purpose of the First Amendment is to establish a democratic society. An egalitarian society.” That’s, that’s all First Amendment, too, they say.

And … I’m sorry if this is a monologue, but, but, but I say to myself, when they say that … “you’re missing the point of it. One of the effects of the First Amendment is to lead us to a more democratic society. But the core of the First Amendment is a protection against the government getting involved with respect to speech issues. And literally who can say what, what can be said, when it can be said. Things like that.

HEFFNER: Well you were kind enough, good enough to refer me to Justice Breyer’s NYU speech …

ABRAMS: Yes.

HEFFNER: …and I read it last night.

ABRAMS: I bet you agreed with it.

HEFFNER: You bet right.

ABRAMS: [Laughter]

HEFFNER: … you bet … you bet right. You have no room for that, Floyd? So many times I’ve said here, “if only you …”

ABRAMS: Right.

HEFFNER: … “My dear friend would take that brilliant mind and find some way of finding what Congress has so frequently said is in the general welfare, as not contradicting the First Amendment. Not contradicting the Bill of Rights”.

ABRAMS: Yes.

HEFFNER: I’m sure you could. And in a sense …

ABRAMS: Well, sometimes …

HEFFNER: … Justice Breyer has.

ABRAMS: Sure, there are … I don’t think Justice Breyer has.

HEFFNER: You don’t.

ABRAMS: I don’t. I think it’s one thing for me to say to you, say in the campaign finance area, “Well, yeah, I think it would be Constitutional to have a system like the New York City system, where if somebody spends money, the government advances certain amounts of money to the other side”. So we have a lot of speech on both sides. That doesn’t raise any First Amendment issues to me.

But where what Justice Breyer is really saying, as I’ve suggested earlier, is that the First Amendment should properly be viewed, not as a negative limitation on the government, but as a binding legal articulation of a commitment to a democratic society and therefore that anything which will lead … this is me … not him, now … anything which will lead to a more democratic society is therefore First Amendment protected.

That to me is what … a different Justice … Justice Potter Stewart once said … was, was pursuing the values of the First Amendment at the expense of the First Amendment itself.

HEFFNER: And you can’t do that?

ABRAMS: I can’t do that.

HEFFNER: You don’t want to do that.

ABRAMS: I don’t want to do that. I think the Court occasionally does it, wrongly. So from my perspective just sort of opening it up and saying, “Gee, why can’t Congress do things in the general welfare?”

HEFFNER: MmmHmmm.

ABRAMS: Or, as Justice Breyer would say, “Gee, why can’t … ah … Congress take steps which are for the purpose of … a First Amendment like purpose of, of making us a more democratic, egalitarian state. And I say to myself, “I don’t’ even want to start down the road …”

HEFFNER: [Laughter[

ABRAMS: I don’t even … I don’t even want to let congress, and the courts, near the business of saying, “you know, it’s so important that this be done or that be done, that even if we do restrict speech, it’s for a good cause.”

HEFFNER: Well, Breyer would say it is for it’s own sake …

ABRAMS: He would say it … he would say it …

HEFFNER: Yeah.

ABRAMS: But I just think that opens it up to a series of ad-hoc judgments by Congress and by the Court which throw out what, to me, is the core of the First Amendment. For example, as I read the recent opinion of the court which … my side lost … in the campaign finance case, one would barely know that speech was involved at all. You would know that an election was involved; you would know money was involved; you would know that the misuse of money in the past, or the threat of misuse of money to get favors or at least the impression of favors, was involved. But you wouldn’t have any sense that what was happening was the a law was being passed saying that neither IBM nor the ACLU nor the AFofL could put an ad-on within 60 days of a Federal election which mentioned the name of the President of the United States. That’s the law that’s now been held to be Constitutional …

HEFFNER: Constitutional.

ABRAMS: Yeah.

HEFFNER: If wishes …

ABRAMS: If wishes … if wishes …

HEFFNER: Floyd, the notion that the First Amendment is designed to lead to, to protect, to give sustenance to a concept of a Good Society, I think that ultimately is what those of us who reject your absolutism say that indeed, there’s a purpose to the First Amendment. It is secondary, it is a device, it is a means that free speech, which you protect so wonderfully well, is a means of getting somewhere and when we are at that point, you say, “no, because a real reading of the First Amendment says, ‘No law. Congress shall make no law’.”

ABRAMS: Well, I mean it’s true that I think a sort of an orthodox reading …

HEFFNER: Oh, absolutist.

ABRAMS: Absolutist, I think not. But I wrote an introduction to a book a few years ago, the book was called “Political Censorship”. It was a collection of New York Times articles throughout the 20th century about censorship throughout the world … 536 pages. Filled with newspaper articles about censorship. And you know the justifications that they always used for censorship?

HEFFNER: The general …

ABRAMS: The general welfare. And the justifications were … “it’s really good for speech. We’ll have more speech.” We’ll have to decide, of course, the governments have always said, and we’ll decide and we’ll take a count of things, like honor and national defense and secrecy and a whole lot of different things. And of course, we’ll take account of those things. But trust us because at the end of the day, it’s all for the general welfare, and indeed, they often say, it’s really good for speech, itself. And my reaction is “that’s, that’s the Orewellian nightmare that we want to prevent. We want to avoid having Congressmen … Congressmen? … pass laws? …

HEFFNER: Those people?

ABRAMS: Those people. Saying, “you can’t say that, because we think the effect of you’re saying that is really more harmful than beneficial”. To me, that’s no First Amendment at all.

HEFFNER: Okay. I get nowhere in trying …

ABRAMS: I understand.

HEFFNER: … to move you …

ABRAMS: I know.

HEFFNER: … but I must say that you get somewhere in what you say in terms of its impact upon me, because there are too many times in the middle of the night when I have to say to myself, “damn it, Floyd is right. The only way to protect that key factor in our lives of free speech, is to protect it no matter what.” But let’s let that part go and let me ask you, in the half dozen years since we last spoke about this in particular, not the court, but our friends … the title, “Who’s Trashing The First Amendment Now”, more and more of our friends?

ABRAMS: Sure. They think they’re doing the right thing. They don’t think they’re trashing the First Amendment. But, you know, they think that the way to be consistent with the First Amendment is to pass laws. Congress shall make no law …”

HEFFNER: But still you’re back there …

ABRAMS: No, no, I know I’m back to text … my, my Biblical side … I’m reading to you from, from the secular Bible. But, but it’s … you know, I don’t know how else to protect. I understand saying, “Look even though it reads in a rather absolute like way, you can’t really mean that you can say ‘I’m going to shoot you’ and say, ‘well, that’s protected by the First Amendment because its words.” We don’t protect that. And we don’t protect, you know, some other speech as well. But the thing that really sort of got me on the, on the campaign finance reform statute is the deliberateness with which the authors of the legislation … you know, John McCain and Russell Feingold who go around the country picking up honorary degrees for their bravery in getting this through Congress, the deliberateness with which they suppressed speech. They thought it was the right thing to do. They didn’t think it was suppression, but, but it was a deliberate effort to avoid what they thought was “bad”, “socially harmful” speech. And, and my reaction is, I barely want to hear their reasons, but all right I’ll listen to their reasons, but I start out strongly with the notion that, that the presumption, the overwhelming presumption is certainly that speech about elections ought to be protected.

HEFFNER: Yeah. Floyd, you say, you listen to them, you don’t hear them, do you? You shut it off. You say so yourself. Once you start talking about First Amendment issues, speech issues … that’s it.

ABRAMS: No. I mean if you would tell me …

HEFFNER: Yeah, I know …

ABRAMS: …national security … no, not just that … I mean national security, we have exceptions, or, you know, “fighting words”, if I say something which in the natural course would lead you to hit me, because I’m so insulting to someone in your family … we don’t protect that either.

There are things we don’t protect. I mean we don’t have a crazy First Amendment body of law. But we do have one which is alone in the world in protecting even some speech which does more … which we know does more harm than good. We protect racist speech … only in America. Only here. We don’t do it because we think it serves some great social purpose to have this speech out, some people make that argument, but not me. But because we want to have one body of law with a level of clarity and predictability and to keep the government against whom the Bill of Rights was written, basically to protect us, to keep the government from stepping into this area.

HEFFNER: Floyd you must have taken some solace in the fact that this was a five to four decision.

ABRAMS: I take some solace from it. Part of it is just ego, that, that, you know, it would be embarrassing to lose nine to nothing. I take some solace because, you know, five to four means that the issues are still in play. And that, you know, maybe not with one appointment … two appointments, you know times change.

HEFFNER: But, indeed, with one appointment.

ABRAMS: Well, maybe.
HEFFNER: With the right resignation or retirement … one appointment …

ABRAMS: Could be. Yes. Yes. I mean this is sort of odd because, of course, the sort of appointment would likely be, or might well be someone that I would disagree with on everything else. But …

HEFFNER: Doesn’t it make you stop and think even more?

ABRAMS: Yes. It makes me feel a bit awkward. Maybe even that I’m wrong?

HEFFNER: Ah.

ABRAMS: Aha. But, you know, one of the things that troubles me is that I think so many of my Liberal friends have minds that are too closed about issues like this. That is to say because they “know” the bad things money can do in politics. Or they know that the certain types of speech around an abortion center will lead people not to have an abortion or scare them, perhaps, into not. That they sort of stop thinking after they say that.

HEFFNER: But you see that’s what I’m really asking you in just the few minutes that we have left … are there more of your, my Liberal friends who are not thinking in your definition. More now than a half dozen years ago? More now than a generation ago? Are we heading …

ABRAMS: I think so.

HEFFNER: … in that direction?

ABRAMS: I think in part it’s because we’re more polarized as a country. Maybe about everything. The First Amendment in particular is a very … how shall I say …non-ideological speech protecting … but it doesn’t matter whose speech … protecting part of the Constitution. You could make an argument that Conservatives should have come to it much earlier, because it is a deeply Conservative amendment in some ways, based on such a level of distrust of Congress and of government that one sees Conservatives have of an economic regulation and have had, for all these years, about economic regulation. But if I talk to my Liberal friends, you know, I think they look and they say, “well, gee, Justice Scalia’s for it and I should be for it? Justice Thomas is for it and I should be for it?” There were opinions again in the recent campaign finance case, one of Scalia … the first line was “this is a sad day for the First Amendment.”

HEFFNER: He’s had many sad days, hasn’t he?

ABRAMS: He has. He has. But he is not always wrong. And in the area of Constitutional rights, he’s sometimes right; even by my more Liberal approach. And in the area of First Amendment … he … you know, he voted in favor of protecting flag burning against a statute which made it criminal. As did Justice Kennedy …in his very early days on the court.

But it’s, it’s telling to me that, you know, when I, when I got up in the court to argue … all the people that were throwing golf balls at me were the, the more Liberal members of the Court. And it was the people whose views I generally don’t share a whole lot who were saying the sort of things with the sort of words; citing the sort of cases, approaching this with the same sort of overview that, that I take, and so it was a really extraordinary experience for me in that respect.

I mean I, I had walked in and I had told one of my Conservative allies on this case, that I just …I wouldn’t believe until it happened to me that, that all the Liberals would vote against what I was talking about and now it’s happened.

HEFFNER: But now it’s happened and now is the time to say thanks so much …

ABRAMS: Yes.

HEFFNER: … for joining me ……today in your misery.

ABRAMS: Thank you.

HEFFNER: Thanks, Floyd Abrams. And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.