Speaking Freely … with Floyd Abrams, Part II

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

I’m Richard Heffner, your host on The Open Mind.
And this is the second of two conversations with renowned Constitutional attorney Floyd Abrams, partner in the prestigious New York law firm of Cahill, Gordon & Reindel, whose provocative new Viking Press volume, Speaking Freely, recounts many of his own historic “Trials of the First Amendment”, ranging from The New York Times Pentagon Papers case more than 30 years ago, to the very present.

Let’s just move on now with our conversation … which in one way or another has been going on for the last quarter century in the two dozen and more Open Minds that Floyd Abrams and I have done together.

And Floyd I, I want to go back to the very beginning of the book, which is a funny way to put it … you quote Judge Murray Gurfein, who I gather was the first of the jurists involved in the Pentagon Papers …

ABRAMS: Yes.

HEFFNER: Okay. And you respect so much what he says … writes here, and you refer to that in the book itself, “The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions; a cantankerous press; an obstinate press; a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”

Now, you quote this and you quote it very carefully because nowhere here does Judge Gurfein speak about an unfair press, or an imbalanced press. And if he had, if you hadn’t put up these straw men … “a cantankerous press” … well, of course, our viewers now, they’re not going to get too upset about a cantankerous press or an obstinate press, or a ubiquitous press … but what about an “unfair”, “imbalanced” press?

ABRAMS: Well, first of all, here and abroad our history is that people do get very upset with a press at its best, as well as at its worst. People get angry. Presidents get angry and the rest of us very often get angry at the press even when all it’s doing is serving the public good, because there are always pests … they’re always getting in the way, they’re always attacking, they never sound constructive and a lot of those qualities are some of the qualities that make the press unattractive.

At the same time, there are other qualities that the press … that lead it to public lack of sympathy. An unfair press. The press is sometimes unfair. What shall we do about it? The basic bet that we’ve made, as a people, with the First Amendment is that, in general, that we lean heavily in the direction of … as Ed Gurfein said, “Suffering the, the harm caused by the press when it’s unfair for the benefits of the press being free.” That’s a decision which is very rare in the world, very, very rare in the world.

And there are other ways to strike a balance, as we used to in this country, for example, in libel law. Before 1964 we used to have essentially English libel law. And English libel law meant that if you said something you had to prove it was true. And if you said something that was false, however hard you tried to get the story, you were responsible for it.

That’s not ridiculous. That’s not the language of oppressors speaking, but it is language, and this used to be our law until living … at least for me and you … living memory … it used to be the language of cases which did quote “chill” unquote the press. Again, when it does its best work as well as it’s worst. And one of the things that I think we’ve done under the First Amendment and in First Amendment law is to, is to very clearly make a choice … not to let “anything goes” … you know however false, whatever the motivation … but, but to understand that we are imposing a burden, the burden of listening to untrue speech; the burden on someone falsely accused of having to endure that. And if the person sues, making it hard … not impossible … but hard for him to recover.

Why? Because we, we were more afraid of what was happening at the time of New York Times against Sullivan. In that case it was a Southern white juries essentially taking steps, which would have put the national press out of business, if it kept reporting about the civil rights revolution in the South.

And we found that we couldn’t trust juries, we couldn’t trust the courts to deal with that problem. And the only way to deal with it is to have broad protections saying “No liability against the press when it writes about public officials, at least … unless it either knows what it’s saying isn’t true, or suspects it isn’t true.”

Now that’s not, that’s not the only way a free country could go. And it’s not the only way a democratic country could go. Canada hasn’t adopted that. England hasn’t adopted that. I mean a lot of free peoples structure their governments and structure their legal systems in different ways. And so we’ve made a very important decision not to allow government, including courts and juries to get involved with unfairness of coverage. Certain untruths can lead to legal damages. But unfairness we view as a matter for listeners and viewers and readers to decide for themselves.

HEFFNER: So that anything does go when it comes to fairness.

ABRAMS: Comes to fairness, yeah. Generally so. And, actually, in recent years we, we’ve had more of a balance, if you will being struck. One of the advantages, I think, of the Internet … one of the public services performed by the “bloggers” …

HEFFNER: Yeah?

ABRAMS: … is, is to serve as a constant critical force assessing what the … what I’ll call the “institutional press” has to say. Now, some of that is rooted in partisanship, or ideological views. But that’s fine. It seems to me that … one … one of the many great contributions of the Internet is that we have, in place, citizen critics … not just of the government, but of the press, something the press itself has not done very well, in terms of criticizing itself.

And that, that is a check … another check on the press because it sends a message to the public. And the message does get out. So, if anything I would be less worried now about the quote “unfairness” unquote of the press because there are more people out there every day, all the time. And as I say, out of very mixed motives, but for whatever motives … checking, re-checking, accusing and, and in that way, serving the public in a way deeply consistent with First Amendment values.

HEFFNER: Do you think we are a better informed nation because of this interpretation?

ABRAMS: I pause …

HEFFNER: Significantly.

ABRAMS: Yeah. Yeah. Because I don’t think we’re a very well informed nation.

HEFFNER: I thought you’d say that.

ABRAMS: And so, that obviously informs my answer to the question. I think that they, the layers of freedom that we have, that are, that are afforded because of the First Amendment allow us to be as well informed as we’re willing to be. That is to say …

HEFFNER: Well, what in the world does that mean?

ABRAMS: It means …

HEFFNER: Please.

ABRAMS: It means a lot of people aren’t watching us …

HEFFNER: Mmm … set that aside.

ABRAMS: No, no. No, no. There are a lot of people who aren’t interested in public affairs. There are a lot of people who don’t read great works, and don’t even read good journalism. And that’s not all the fault of journalists. The First Amendment simply allows us … doesn’t require us to become better educated and better informed.

And if the public isn’t interested, and I read a recent article arguing that they’re not … if, if the public doesn’t want to take advantage of the chance to read what it’s free to read; to learn what it’s able to learn, I wouldn’t blame the First Amendment or our interpretation of the First Amendment for that. I, I … I mean I wouldn’t argue for a moment, or at least I wouldn’t accept the argument for a moment, that because we allow so much speech, that’s why people are so poorly informed. I don’t think so. I, I think in good part people have made a choice about what they find interesting and what they find informative in their own, and that they have a democratic right to do that, but I’m, I’m certainly not encouraged about the level of public education. About what’s going on in this country, not to say what’s going on abroad.

HEFFNER: You know I wish I could figure out some way of posing a question for you to answer and I, I know you would … that would get you to evaluate the multiplicity of inputs. You’re talking about the Internet, etc. and the “bloggers”, etc. Are we becoming in a sense … the question is, Floyd, are we becoming a safer and by that I mean in terms of survival … are we becoming a safer people because of this “anything goes” approach.

I don’t know anything that could be more important …you’re a grandparent now, I’m a grandparent, have been a long time … thinking of the future, their future. Are we safer for this …

ABRAMS: Well we’re safer …

HEFFNER: … enthusiasm …

ABRAMS: … we’re safer from the one thing the First Amendment is about … we’re safer from governmental compulsion. We’re not necessarily smarter, we’re not necessarily wiser, we don’t by any means necessarily behave better because of that, that freedom.

HEFFNER: Are we better informed by the informers … the press that you defend?

ABRAMS: Yeah. Yeah. Yeah. Yes, I think we’re … I think we are better informed as a result of the greater freedom the press has to inform …

HEFFNER: Or to misinform.

ABRAMS: But … and to misinform. And to misinform. But I’m certainly not in a very optimistic mood about the level of public education. I mean take, take Iraq. We’re speaking long … post election now, so we can say this without election motives … now we see polling data indicating that … what … 85% of the people who voted for President Bush were of the view that Al Qaeda and Saddam Hussein were in league together before our involvement … invasion of Iraq … and 75% of the public was of the view that Saddam Hussein had something to do with 9/11.

Now we have every reason to think that both of those assertions are false and, and the President has said so, in substance, at least.

HEFFNER: He said the opposite, too.

ABRAMS: He previously had hinted at the opposite.

HEFFNER: Oh.

ABRAMS: Yes. And sometimes said the opposite. But I’m saying even now, even now we’re at a time when for whatever reason and I’m … I have some thoughts, but, but a large segment of the public is, in my view, deeply misinformed as, as to a central fact or two central facts which bear upon our behavior as a country and our response as a country to what goes on abroad. Now I don’t blame the press for that, I think that, that would be a bum rap.

HEFFNER: Why? Who informs us?

ABRAMS: Our leaders. I think the press was discounted by the public, not just the voters for President Bush. I think the press has a lot of major problems; whatever those problems are it has led to a great deal of public rejection of truths, even when they’re voiced in a clear way in the press.

I mean suppose it to be, as I think it is … suppose it to be a fact, not an opinion that Saddam Hussein had nothing to do with 9/11. I think that’s a fact. And, and on that one there’s no one left saying the opposite. Why do people think that it’s so? That’s not the press. That’s not because of the press. I think because … I, I think people who supported the President in the election were engaged in a sort of subliminal, if you will reasoning which went something like, “Why would we be in Iraq if he had nothing to do with it. He must have.” And I’ve heard, in substance, certainly the President indicate that he must have had something to do with it.

But, whatever the reason is, I don’t think that it is because you read in the press … there are some press entities that have argued that in the past, but again, no one’s arguing it now … and, and I remain stunned by the fact that in the face of uniformity, in what is written now and what you hear on television now, in the face of that you still have an enormous amount of people who hold to the opposite view, and …

HEFFNER: You don’t think that the Big Lie was spoken and repeated and repeated?

ABRAMS: I don’t think that the press has had almost anything to do with that. I think it is true that, that … I mean a lot of things were said … say to take the beit noir of American Liberals on, on Fox, which at one point were very suggestive if not fully supportive of the notion that Saddam Hussein was involved with 9/11. But you won’t find that there either now. You won’t find it anywhere and still it persists.

HEFFNER: The power of an idea, huh?

ABRAMS: Yes. Yes. The power of a false idea and, and I think it’s important for us to sort of separate out, as we talk about the sort of the dark side of the press … what are the consequences when the press errs, or misleads us, or doesn’t inform us about something, all of which happens. That there are major things that … which lie in the minds of our public thoughts, ideas which are simply wrong and that we ought to be careful not, not to blame the quote “press” unquote for, for planting that.

HEFFNER: Well, you know I still will, but …

ABRAMS: I do know that. But I thought on this show I could educate you.

HEFFNER: [Laughter] Floyd, I don’t want to pretend that Speaking Freely has not in it germs of other, very important issues then the question of First Amendment free speech, though they all, all these issues do surface within the context of your fascinating reports on the major cases that you’ve dealt with in your career. But there are a couple of things … there’s, there’s something here about juries … and I want to ask in a, thus far, lifetime of involvement with the law … what do you … what’s your conclusion when someone holds up the words “jury system”?

ABRAMS: I think juries work pretty well in, in criminal cases, in particular. I think where the question is “What happened? Tell me what happened?” I think juries are really very good. I think there are cases, and my cases are among them [laughter] …

HEFFNER: Yes, indeed.

ABRAMS: In which juries have a lot of trouble … sometimes understanding, but more often I think, being willing to follow the law. The law is, in the First Amendment area sometimes counter-intuitive. The law, many jurors think at a subliminal level, is unfair. So when a juror sees someone come into court in a libel case and say, “This newspaper, this broadcaster said something about me that’s not true”, the judge can give instructions …

HEFFNER: That that’s okay.

ABRAMS: That it’s, yeah, that that’s protected unless they meant it to be untrue or suspected it was untrue. But a juror wanting to do the right thing, wanting to do a sort of rough justice … might well, and often do say … no, no … or latch on to ways to get around the law … so I, I will ask prospective jurors often, you know, “if Judge so and so tells you that unless this newspaper meant to be lying or suspected what it was saying was false, you have to vote for us. You promise that you’ll do that?” And the juror says, “Oh, yes, sure, whatever the judge says, I’ll do.”

But then when they hear a case, and I had one, in which a simple mistake led to the loss of a lot of money and, and led to a lot of harm. But it was just a mistake and it was about a public figure as defined in our law, so it’s hard for him to win. But jurors want him to win and so, to that extent, even in this civil, non-criminal area where the questions are supposed to be factual … what happened … what’s true, what’s not true … about this or that … juries don’t work very well.

And that’s one of the reasons we have an extraordinary development in American law, and that is, in Federal courts in America, we have … on appeals … a reversal rate generally of about 18%, 18%, 19%. So, you know, when you look at all the appeals in the US, in civil cases, not involving the United States, about 18% or 19% are reversed and the rest are sustained. In First Amendment sorts of cases, there’s a 65% reversal.

HEFFNER: 65%?

ABRAMS: 65%. In cases involving the press, libel cases involving the press and public figures, 65% of the cases which go against the press are reversed. Now, the legal reason is easy enough. The Supreme Court has imposed a very strict test that, that plaintiffs, people that sue, have to meet before they can win. And they often haven’t met it. But that doesn’t answer the question, why are the juries so wrong … why do the Appellate Courts have to play such an enormous role. And it certainly doesn’t answer the question, what sort of system of law do we have which requires a two-thirds reversal rate?

And, and the only broad answer I can give to that is that jurors recoil at the, at the idea that, you know, someone who comes into court and has been harmed by something said about him, can’t recover.

HEFFNER: You think there’s some folk wisdom there?

ABRAMS: [Laughter]

HEFFNER: And I’m serious.

ABRAMS: Yes, there is some folk wisdom there. And more. It sends, it should send, I think it does, a message to the defendants in these cases … I mean … I … as a lawyer on the line in court, I get the chance to see up close the reactions of the American public to what is published. Now …

HEFFNER: Ain’t good.

ABRAMS: … well, I do it in, your know, obviously, a small sub-set of cases … usually ones where there’s at least something to be said against the broadcast. I mean, it’s, you know … a pure broadcast or article, you know, very often doesn’t result in a lawsuit. But that said, isn’t it interesting that, that jurors have the reactions that they do. And not just jurors. Now I would say judges do.

I mean I think the problems the press has with America come from a variety of sources. You got a lot of reasons. I mean the fact that people under 40 are reading newspapers less and less and less may just come from the nature of our changing society. And not because of failures of the press.

But the, the anger of a lot of people towards the press and the reaction of a lot of people, lot of jurors that I see, many of whom are not angry at the press, but angry at big corporations and view the press as nothing but that … is something that ought to send a message to my clients.

HEFFNER: We’ll talk about that …

ABRAMS: [Laughter]

HEFFNER: … when we do another program, Floyd …

ABRAMS: Okay.

HEFFNER: … and we will soon. Thanks so much for joining me again today, Floyd Abrams.

ABRAMS: Thank you.

HEFFNER: And I hope everybody reads Speaking Freely and of course I hope they don’t all agree with it. But that’s between us. 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.” And go out and buy Speaking Freely.

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.