Speaking Freely … with Floyd Abrams, Part I

GUEST: Floyd Abrams, Esq.
VTR: 01/12/05

I’m Richard Heffner, your host on The Open Mind.

And my guest today has joined me at this table so many times over the past quarter century that I often refer to our “dog-and-pony routine”, and keep trying to get him to join me in a book made up of our couple of dozen conversations – thus far! – here on The Open Mind.

Well I haven’t succeeded – not yet! – though hope springs eternal. But now my dear friend, renowned Constitutional attorney Floyd Abrams, partner in the prestigious New York law firm of Cahill, Gordon & Reindel, challenges us all with Speaking Freely, the title of his provocative new Viking Press volume, recounting many of his own historic “Trials of the First Amendment” … from the New York Times Pentagon Papers case more than 30 years ago, to the very present.

Most of the times when Floyd Abrams joins me here in recording an Open Mind, he’s in the midst of some immediate major court room defense of “speaking freely” in America, and we just don’t know whether or how his case will have been decided by the time you in the audience actually share our conversation on the air. That’s true today, too, with some of my guest’s journalist clients right now facing big time punishment if they don’t reveal their sources to government investigators.

But I don’t intend to start off there, anyway. Instead, I’m going first to ask Floyd Abrams just what he means by ending Speaking Freely with the singular sentence, “You don’t have to be a First Amendment voluptuary to believe ‘that’ whatever ‘that’ may be.” Floyd?

ABRAMS: Well, early in the book I describe how … when I first called a law school professor of mine, Alexander Bickel, back in 1970, after … years after my graduation from law school, and asked him to work on a brief on behalf of the, the media, in the Supreme Court relating to confidential sources of journalists … I asked him if he would do that for NBC, for the New York Times, for other entities. And the first thing he said to me was, “Well, you remember, Floyd, I’m not exactly a First Amendment voluptuary.”

HEFFNER: Are you, Floyd?

ABRAMS: And … well, I, I suppose I … I, I suppose I am by now. Certainly all that I’ve done, all that is depicted in the book, all the cases I’ve worked on over the three decades and more have been …on the side … certainly as I view it … on the side of “The First Amendment”. I quote in the book from a professor of mine when I was an undergraduate at Cornell, who said that I seemed to have the views of a Liberal and the vocabulary of a Conservative. And a Conservative vocabulary doesn’t always go together with one’s image of a sort of an uninhibited First Amendment defender.

But the vocabulary is just a way of getting out ideas. Words … Justice Holmes said … are the skin of living thought and, and whether we say it in louder terms or softer, we’re saying the same thing when we say that our country is based on the notion of a very expansive view of free speech. More expansive than any country has ever had in the history of the world. And that’s one of the things that makes us what we are … good and bad.

HEFFNER: But you know when you say that, that our country was founded on that … I, I became aware of early in the book … in your introduction … you write “Not until 1925 did the Supreme Court first indicate that the Fourteenth Amendment, adopted in the aftermath of the Civil War, provided protection against state suppression of free speech.”

And elsewhere in the book you seem to indicate that First Amendment “voluptuary-ism” doesn’t quite conform to the judicial history of America until the 20th century. Now how do you reconcile that?

ABRAMS: Well, that’s true. The … certainly broad expansive, sweeping views of the First Amendment and of the Bill of Rights is very much a 20th century creation and that’s particularly so of the First Amendment.

Now one reason for that is that the First Amendment is couched in terms of a limitation on the Federal government. Not state. “Congress shall make no law abridging the freedom of speech or of the press”. And not till after the Civil War when the Fourteenth Amendment was adopted, which was held later on to apply the Bill of Rights to the States … did we become a country in which States and cities, as well as the Federal government were prohibited from doing anything in the free speech area.

So until the Fourteenth Amendment was adopted in 1865 and until it was interpreted and in the free speech area, it took till the 20th century … I mean a state could literally have adopted legislation which established a State religion or barred people from speaking out on one or another political issue.

Now remember all of our States have Constitutions of their own. And that’s what the framers were counting on when they drafted the Constitution. And when they drafted the Bill of Rights. Jefferson wasn’t concerned that his Virginia wouldn’t protect freedom of speech, he was concerned that the United States, “the” Congress, “the” new Federal government would sweep in and engage in what he later called, about John Adams, “a reign of witches”. And, and that, that was the concern that led to the adoption of the Bill of Rights.

So … not till the 20th century did the First Amendment apply to the States. Not till the 20th century did we start to have “case” law dealing with the scope of the First Amendment. And very much not till the end of the 20th century, the second half, did we start to have most of the cases that have shaped our country in terms of the degree to which we protect freedom of expression … freedom of speech, freedom of the press … I mean the, the big cases, while there were a few in the first half of the 20th century … in the early part most of those were dissenting opinions, losing opinions of Justice Brandeis and Justice Holmes.

Then there a few … very few in the thirties and forties and then it was after that, that the First Amendment really started to be litigated in court. And, and so I was fortunate enough to be in some of those cases and certainly to be around when the rest of them happened.

HEFFNER: But doesn’t that analysis, to some extent, strip from your First Amendment position some of its historical rationale; some of the notion that this, after all, is the essence of the American experience.

ABRAMS: Mmmmm. Well, yes and no. To some extent it’s true. Look, we had the Alien and Sedition Act within just a few years of the adoption of the Constitution. The same people …

HEFFNER: Mmmhmm.

ABRAMS: … that passed the Constitution … once the government was running … the majority of people in power … Federalists … adopted the most, the single most repressive piece of legislation the Federal government has ever done … which made it a crime to say critical things about the President. So, that’s true.

At the same time, what our cases have done is to examine and re-examine the intentions of the framers viewed somewhat more broadly than that, the philosophic intention of the framers, what they meant on a broad level by, by protecting freedom of speech and freedom of the press. So 1941, for example, we had this great case, Bridges vs. California, in which a California newspaper had been very critical of a judge and had said, in so many words to the judge … “send Harry Bridges (the Labor leader at the time) to jail.” Send him to a jute mill (they said).

Well under English law that would be a crime, that would be contempt of court; the editor would go to jail … today, for saying that during a trial.

The US Supreme Court called upon for the first time in 1941 to address the question … was the First Amendment supposed to make us “different” from England? Or to embody English law? Answered that question and answered it in a very sweeping way, by saying in effect nothing was clearer, which is probably not true, but, but they said nothing was clearer than that the purpose of the Bill of Rights was to afford Americans far more protection to engage in free speech, free press, freedom of assembly, freedom of religion than had ever been the case in England. And the way the Supreme Court works, once they say something … it is so.

HEFFNER: Unless they un-say it.

ABRAMS: Unless they un-say it. And historians have disagreed about just what the framers thought or the degree to which they were thinking specifically about, about the real shape of the country. It’s so hard to do when you form a country … is to think ahead as to what the country will be like and the parameters of the future challenges to the country.

But, but with that, that opinion in the Harry Bridges case, that, that really great case, we were really set then on a road on which we are still and with Liberal and Conservative members of the Court of interpreting the First Amendment itself and other provisions of the Bill of Rights, but particularly the First Amendment, very broadly and giving really an extraordinary level of legal protection and you know, if you ask me, is it … is it arguable that as an historical matter, they’re wrong … well, it is arguable because we don’t know very well what, what the framers meant. What we know is what they said; what we know is where they’re coming from. They disagreed with each other.

I mean that’s the problem, one of the problems with “originalism” … which Judge Bork and number of other very serious thinkers … Justice Scalia, have proposed … is to go back into the minds of the framers. It’s hard to do that. And where the framers disagreed, as they did … at the time of the adoption of the First Amendment, as we saw they did, as we know they did, by the different behavior of the Federalists and the Republicans in the early days of the Republic … it’s very hard then to put that into law today.

And yet, as Justice Scalia rightly says, if you don’t do that, then you are at risk of simply having judges pour whatever ideas they have into Constitutional interpretation.

HEFFNER: But isn’t that in sense what we’ve done … in, in Speaking Freely there is … I was going to say “so many places”, but not so many places … but key places, in the key cases with which you have been involved in First Amendment concerns in your own career, as young as you are … if you think, and I couldn’t help but think of Brown vs. Board of Education in another area … reversing a very fundamental Supreme Court position of 60 years before. Aren’t we in a position, and it’s a position that in a sense you are applauding …that 60 years from now, maybe sooner … the defenses of your posture on First Amendment may go out the window with different kind of appointees to the Court.

ABRAMS: Sure. I mean that’s inherent in a system where you appoint nine people to a court and give them not only philosophic interpretative power, but legal ones. I mean, remember, the First Amendment is law. Not just poetry. And …

HEFFNER: I thought you thought it was poetry.

ABRAMS: [Laughter] …

HEFFNER: The way you have spoken so beautifully about it.

ABRAMS: It’s important that it’s law. It is not … you know … it is not … these are not just a series of admonitions to Congress or Judges or the juries of our country. They are binding law. And yes, it’s true that members of the Supreme Court have within their power, and indeed, only their power, the determination of what the Constitution means. That’s why it’s so important who’s on the Supreme Court.

That’s also why it’s so important to have a body of law established which will stand up to future scrutiny so that if a later Justice on the court wants to say, “You know, I never believed any of that stuff,” he’ll have to throw out fifty cases, which is hard and they don’t like to do that. It’s one thing for them to say, “You know, come to think of it, this case, that case, after all, really was wrong, when it was done.”

But to say that a whole body of law upon which we’ve relied and upon which the country has, has based its development was wrong, is, is increasingly unlikely.

I mean, look, this is a Supreme Court where even … when it’s disagreed … and clearly disagreed with prior rulings like the Miranda ruling, for example, has said, “Even if all of us wouldn’t have voted for it, and it’s clear that a majority of this court, today, would not, it’s been around, everyone has lived with it, everyone has relied on it. Generations have grown up understanding that a policeman is supposed to say ‘You have a right to remain silent. You have a right to have a lawyer. Anything you say maybe held against you.’ That we’re not going to reverse it; we’re not going to reverse it because it has become so much a part of, of American cultural, as well as legal life …

HEFFNER: You keep seeing it on television.

ABRAMS: Yes. And so, with even more, I would say, with the First Amendment. For a later Supreme Court to come along and say, “Well, you know, come to think of it, when I read the history of this, I think, after all, all the framers really meant was that we ought to have the same rights that the English do.

HEFFNER: Floyd are you betting on this? Seriously, that we won’t experience … that’s it’s really so difficult to contemplate experiencing a turn-around?

ABRAMS: Well, there will be First Amendment losses, but what you’re asking me, I think, is, is much broader …

HEFFNER: Yup.

ABRAMS: … is more important than that. Yeah, I’m certainly betting on the proposition that there won’t be, you know, major structural changes in interpretation of the First Amendment.

I mean there is an interesting debate going on where jurists on the, on the Left of the Supreme Court are taking a position … some of them, at least … which is quite out of line … as I view it … with, with the historical interpretation by the Court and by scholars of the First Amendment. I mean certainly Justice Breyer’s views are at odds with a more rigid view of the First Amendment that people like me have. I mean his view is that the First Amendment should be interpreted in terms of more general principles of democracy. And, and of equality, which when I say it so nicely sounds very attractive, doesn’t it?

HEFFNER: Oh, I find it very attractive anyway, Floyd.

ABRAMS: But, but what that does, in my view, is to move away from a First Amendment which is steady and predictable and rock-hard …

HEFFNER: Absolute.

ABRAMS: And put us into the hands of judges deciding almost what’s good and what’s bad and how democracy is advanced and how it’s hurt. I mean, nothing, for example, it seems to me is more threatening to principals of freedom of the press, than a body of law by which judges made ad hoc case by case decisions about whether the First Amendment interest of a journalist or newspaper in speaking is more important or less important than the … what Justice Breyer would view, perhaps, as the First Amendment interest of somebody about whom they are talking. I mean our greatest First Amendment case may be New York Times against Sullivan, 1964, giving enormous protection to the press in the interest of assuring robust, uninhibited free speech in America.

One could have interpreted the First Amendment in a different way. One could have said “There are two First Amendment interests here. The interest of the newspaper in speaking and the interest of the person being spoken about to have maybe control over what is said about him, maybe a privacy interest, maybe a First Amendment interest.”

It seems to me once you start down that road you are completely then in the hands of judges making ad hoc decisions about what sort of America they think we should be. And what’s more democratic or less democratic rather than saying “We have rules here. The rules are ‘no prior restraints on speech; no requirements that people say things they don’t want to say (of any sort), whether they’re Republican or Democrats or Left Wing or Right Wing, or it’s good for the country, or bad for the country, you can’t make someone say what he doesn’t want to say.” Things like that are rules and, and when you start to move away from them, you start to move much more into danger zones. As is illustrated by the fact that just about every country that has taken away free speech rights has done it in the name of democracy.

HEFFNER: Floyd you talk about “the speaker” and about “the person who is being spoken about”. What about the listener, the viewer? What about this more positive, as it has been called …

ABRAMS: Yes.

HEFFNER: … approach to the First Amendment?

ABRAMS: Yeah.

HEFFNER: You reject that?

ABRAMS: I think it very negative view, as my book urges, of the First Amendment. “Negative” in the sense, not only of language, it does say, after all “Congress shall make no law”, on the other hand we’ve gotten passed the word Congress already to, to read it to mean “the government” and not just the Federal government, but state governments as well. I think that, it is … we are much safer, as a people having a First Amendment that protects us against oppressive government, which I think the core of the First Amendment was that … to protect us against government. Not to make us a great society, even though it does that sometimes; not to be a sort of “new deal” allowing the governmental officials to equalize speech in one way or another, this is the stuff that has gotten one foreign country after another in trouble.

My First Amendment is the First Amendment which, which exists to protect us against government misconduct. And I think that when you go beyond that and you start re-describing the First Amendment so that it is, it is an affirmative grant of rights to be defined by the courts or by the Congress, it, it leads to a situation where as Justice Potter Stewart once said, “We, we are so much in search of First Amendment values that we forget the First Amendment itself. And the First Amendment itself, keeps Congress from tinkering. Keeps courts from tinkering.

Now, we know, we need courts to answer some questions about, you know, how much legal protection does cable receive as compared to television, say. Someone’s got to answer that question and all we have is the courts to do it. But, but that being said, it, it seems to me very troubling indeed, to see some of our greatest scholars and people I really do have a lot of respect for and with whom I often agree, opting in favor of a, of a quote “democratic” First Amendment which starts to move away from the reasonably predictable and firm and steady bars in the First Amendment to government conduct towards trying to, to build a better life through speech. I don’t want courts or Congress making those decisions.

HEFFNER: You know, the objectives of those other people who were thinking about the listener and the viewer and the rights they have … people who saw … who understood that it was government that was the enemy … the potential oppressor when the Constitution was written. There may be others today.

I’ve always wished that you would put that wonderful mind to work helping the rest of us who are concerned with the viewer and the reader and the listener find some way in that First Amendment which has been interpreted now the way you want it, so recently in a more positive way.

ABRAMS: Oh, you see, I think I am protecting … I think … it’s not me, I think the First Amendment law that we basically have does provide the greatest level of meaningful protection to listeners rather than putting in the hands of government or, or courts, the, the authority to decide what’s good for listeners.

HEFFNER: That’s why I have to listen or read the sign that’s says “Say Good-bye”.

ABRAMS: [Laughter]

HEFFNER: But, Floyd, I know you’re going to stay and we’ll do another program. Thanks for joining me today on The Open Mind.

ABRAMS: Thank you.

HEFFNER: 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 another 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.