At Yale: The Floyd Abrams Institute for Freedom of Expression

GUEST: Floyd Abrams
AIR DATE: 01/07/2012
VTR: 11/04/2011

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

And I’m particularly pleased and proud to welcome back today for what over the years must be three dozen times by now … my old friend and often intellectual adversary, the distinguished First Amendment Attorney Floyd Abrams, just honored by Yale Law School’s formation of The Floyd Abrams Institute for Freedom of Expression.

Now Yale describes the mission of the Abrams Institute as both practical and scholarly.

“It will include a clinic for Yale Law students to engage in litigation, draft model legislation, and give advice to lawmakers and policy makers on issues of media freedom and informational access.

“It will promote scholarship and law reform on emerging questions concerning both traditional and new media.

“And it will hold scholarly conferences and events at Yale on First Amendment issues and on related issues of access to information, Internet and media law, telecommunications, privacy, and intellectual property.”

Well, my guest, well known as a senior partner in the law firm of Cahill Gordon & Reindel, first rose to national prominence 40 years ago when he was co-counsel with Yale Law School’s Alexander Bickel in their successful defense before the Supreme Court of the New York Times resistance to the Nixon Administration’s attempts to suppress the publication of the Pentagon Papers.

In the four decades since then, Floyd Abrams has time and again argued First Amendment cases before the high court.

Most recently and certainly quite controversially, he
successfully represented Republican Senate Minority Leader Mitch McConnell in the Citizens United case defending the right of corporations and unions to participate in election campaigns with literally unlimited sums of money … a “win” for my guest that those of us who do NOT equate money with speech dread beyond words.

Now, for the last near three decades, of course, Floyd has again and again joined me on The Open Mind for conversations on such varied issues as “Campus protest: what is permissible?”, “Libel law: protecting the individual”, “The adversarial system: an ethical concern”, “Personal privacy vs. public security”, “Taking the Fifth”, “If Jefferson were here”, “Why lawyers lie”, “Look who’s trashing the First Amendment”, “Media violence: is there “reasonable ground” to consider it a “serious evil?”, “Money talks, but must it enjoy free speech?”, “Loosening lawyers’ lips”, “Should the press be privileged?”, “Free speech/bad press”, and “The law: what Americans can learn from those who learned from us”.

Now, that’s quite a list, isn’t it?

And I want to begin our conversation today by asking Floyd Abrams if there are any of these topics and themes on which he’s likely to have changed his mind since we first started parrying and thrusting at one another when the world was so much younger. Floyd?

ABRAMS: Well, first I wish I remember what I had said …

HEFFNER: (Laugh)

ABRAMS: … but, you know, I don’t think I’ve changed my mind on broad legal issues in the sense of giving the press a lot of leeway, assuring that freedom of expression is the rule, not the exception, etc., etc.

I … I’ve probably become … I, I hate to think of it … just with age … but I’ve probably become less assured that speakers, journalists, users of the First Amendment serve the public as often as I once thought they did.

Remember I came of age, in a sense at the sort of “glory time” for the American press, of the 1970s … Pentagon Papers and Watergate and other events where the press was performing what I think, even in retrospect, can be viewed as “heroic” acts.

Now we have a situation where we not only are talking about entities beyond the press, who must, in my view, and I’m sure the court’s view, have all the same protections.

HEFFNER: The New Media …

ABRAMS: The New Media … and cable television … no longer new media, but, but, you know, entities that sometimes comport themselves in a way less attractive and certainly less fulfilling, I think, in terms of public information … then I have …

HEFFNER: You don’t want to regret anything you say now …

ABRAMS: Than I, I once thought … well I, I … you know a time comes when you can tell a little more truth.

So, I, I … as I said … so I, I think where I’m at is, is not so much changing my mind about the level of freedom, but I have to be prepared to deal with, with a Wikileaks world now. When I think about freedom of expression, and I think Wikileaks has been a … has been and has behaved in a deeply reckless manner.

So I am re-thinking not whether there ought to be broad protection for freedom of expression, but I guess I’m re-thinking more the consequences of affording the level of protection that I think ought to exist.

HEFFNER: Is that because we live in a terrorist-ridden world?

ABRAMS: I think it’s partly a terrorist-ridden world, partly it’s a world where … and this is good and bad … you know, we don’t have sort of an elitist … and I don’t mean it in that … especially in a pejorative sense … but we don’t have a, a singularly set out entity of great newspapers that are the great providers of information to the public.

Most people get information from other places now than newspapers and indeed, more and more other than radio or television, too. On computer, online … there is a coarseness, a brutishness to, to the discussion I think now … which did not exist, at all, as much then.

And there is much more … now … a willingness to, to put almost anything out to the public … not talking about fabrications … but I’m talking about rumors … so-and-so said, or sort of said or suggested … is immediately “viral”, as they say.

And, and so the consequences of speech are often more troubling to me because there is far less effort even at responsibility amongst the, the speakers.

HEFFNER: Now, now some time ago, perhaps 30 years ago or whenever our first program was … if I had said something about coarseness …

ABRAMS: Yes.

HEFFNER: … unattractiveness … you would have said to me … immediately … “Well, but that’s the speech we … through the First Amendment, want to protect” …

ABRAMS: Well, I’m still saythat, Dick.

HEFFNER: … not the speech we embrace.

ABRAMS: I’m still saying that, Dick … I’m still saying that, that we should protect it …

HEFFNER: But?

ABRAMS: … I think there’s more of it and it’s … it affects society in a, a more … what should I say … in a manner that, that does positive harm to society …to a greater degree than I had thought. I’m still in favor of, of letting people say it … I think the consequences of suppression of speech are just as bad as I always thought … but I thought the benefits of, of a sort of totally free landscape involved more pain, more misleading qualities to them and maybe less of a … sort of a predominantly beneficent one than I had once thought.

HEFFNER: Well, I, I … you worry me … I’m beginning to think that “My God, I’m not going to last another … what … this program …

ABRAMS: (Laugh)

HEFFNER: … 56 years to …

ABRAMS: Yeah.

HEFFNER: … get you to come back, but if I did …

ABRAMS: It sounds like you …

HEFFNER: … you would almost sound like me …

ABRAMS: (Laugh)

HEFFNER: … you’d be …

ABRAMS: … but the difference, I think …

HEFFNER: Yeah.

ABRAMS: … Dick, is that you have always been more ready to act on those concerns, by being more willing to limit, what I consider to be, the full range of freedom of expression.

HEFFNER: But, Floyd, don’t you think the movement that you’ve made intellectually must, at some point, become a willingness on your part to be limiting, as I am?

ABRAMS: Well, I think of it … I think of it sometimes …

HEFFNER: You worry about it?

ABRAMS: I worry about myself thinking about …

HEFFNER: Yeah.

ABRAMS: … no, no … no, no … again Wikileaks is, is …

HEFFNER: Yeah.

ABRAMS: … really a very good example. Because I’m frequently asked about the talk of an espionage act … prosecution against it …

HEFFNER: Right.

ABRAMS: … and I sort of retreat … I find myself … into saying that if there were such a prosecution, it would … certainly could, but very well might have a very damaging effect on the press and the other free speech users that I think are … serve the public a lot better, than Wikileaks. But what I don’t do is answer the question. Ah, ah …

HEFFNER: Let’s see, somewhere here in the notes that I made … I’m looking through the scads of transcripts of programs we’ve done … had to do with my questioning you about … would you take any case? And you said then “No, I wouldn’t take any case”. Would you feel constrained not to take that position now, particularly in terms of Wikileaks?

ABRAMS: No, I think I’d probably … you know … it’s a great case … you know (laugh) … for one thing you like to have a great case now and then.

HEFFNER: (Laugh)

ABRAMS: But the truth is that I couldn’t do that case really well. One of the changes, since we started talking … is that lawyers more and more are playing a PR role, as well as a legal role … out on the steps of the courthouse, on television programs … writing things … and that I couldn’t do … wouldn’t do …

HEFFNER: Yeah.

ABRAMS: … if, if the situation was what it was in the sense that what a lawyer would do … and there are still some lawyers that, that simply, you know, go to court, do their work and say, “I don’t talk out of court”.

In my view that’s not serving the client … anymore … in many types of situations. I, I think client needs now require more and more the lawyer to be willing to, to speak up … outside the courtroom as well as inside. And if you’re not prepared to do that in a high publicity situation, you probably shouldn’t start down the road. And so, to, to that degree, you know, I wouldn’t … because there are things I wouldn’t say … supportive of say, Wikileaks … and by the way, they’ve done some good stuff. But, but that aside, there, there is a lot of stuff that Mr. Assange of Wikileaks would want and have a right to want his lawyer to say about how he was serving the public and that it wasn’t true … what I just said … wasn’t true … when I called him reckless … and so, in a situation like that … the short answer is …someone like me the way I am now, shouldn’t represent someone like him.

HEFFNER: Well, it, it was in …

ABRAMS: You seem like a cross-examining lawyer … with all my transcripts in front of you …

HEFFNER: I’ve always … I’ve always wanted to be …

ABRAMS: … not fair (laugh)

HEFFNER: … a lawyer, Floyd. That’s just the point … (laugh) in January ’95 we did a program on “Why lawyers lie”, which I thought was one of the most fascinating and …

ABRAMS: Yeah.

HEFFNER: … you were talking then about the idiocy of reporters, of newspaper people asking a lawyer …

ABRAMS: Yeah.

HEFFNER: … what do you think?

ABRAMS: Yeah, yeah.

HEFFNER: … because a lawyer is supposed to think what represents the client’s interests.

ABRAMS: Yeah. In, in my view it’s a violation of the lawyers obligation to the client for the lawyer to answer “Do you believe your client’s guilty”. Let’s say he’s acquitted … do, do you really think guilty … what, what are you supposed to say? “Look, I know … (laugh) I know he really did it …

HEFFNER: (Laugh)

ABRAMS: … OJ told me privately … you know you can’t … you’re not allowed to … ought not to be allowed to do that. But what it means then is that you either have to say “No comment”, or you have to be prepared to engage in a level … depending on your tolerance for it … of advocacy divorced from your own reality.

HEFFNER: And you’re talking about public relations, really.

ABRAMS: Yeah. Yeah.

HEFFNER: Yeah.

ABRAMS: And, and … I mean this is not a problem for me, this is where we have come to be as a society I think. But one of the consequences I think that people haven’t thought much about is that if we’re going to ask lawyers to play this role out of court as well as in … then you may have difficulty getting lawyers to take some very unpleasant, difficult cases representing probably guilty people who deserve a full fledged defense if part of that representation now means I’m supposed to get up in front of the camera and then say “What an outrage”.

HEFFNER: Well …

ABRAMS: Ahh …

HEFFNER: … this second great court we’ve created … the court of public opinion.

ABRAMS: Yeah, yeah. No, that’s, that’s one of the things that’s, that’s happened. And I think it’s more likely to persist and expand as time goes on.

HEFFNER: Floyd, one of the ways I always knew that I could annoy the hell out of you was by using the phrase “First Amendment voluptuary” …

ABRAMS: Yeah.

HEFFNER: You know, saying “Here’s Floyd Abrams, my friend, the First Amendment voluptuary”. Why did that bother you so much and does it still?

ABRAMS: Oh, no. It never really bothered me …

HEFFNER: You were just making believe?

ABRAMS: The phrase comes from the telephone call I had with Professor Bickel …

HEFFNER: MmmHmm.

ABRAMS: … who, who you mentioned in your introduction when we first asked him to work on a case involving confidential sources of journalists for the press.

And he said, lightly, but more seriously than that … “You understand I’m not a First Amendment voluptuary”.

The truth is, I’ve never thought I was. I, I … people think of me that way and that’s, that’s all right … but, but … I’ve always thought there was a place for libel law in, in American society … I think the press ought to be given, you know, broad boundaries. But boundaries.

I’ve always thought there was room for privacy law and, and, I mean a whole flock of other limitations. I don’t think the espionage law is, is unconstitutional just because it makes the publication of certain types of information a crime.

I mean the hard calls come, I think, when you get beyond those generalities and, and you’re really addressing the question sort on a quantitative basis … well, yeah, but how often do you really think that speech ought to lead to or, or, or be constitutionally … lead to punishment or restraint.

And yes, for someone like me, given my views … it would be very, very rarely. Much more rarely than, than for most people. But it’s not because of a, an absolute belief that every sort of speech had or indeed, ought to, be protected. And it’s not because of a view that, that every sort of speech serves the public.

HEFFNER: Well, the, the program, of course, and the point of view expressed that I thought “Aha, I’ve got Floyd Abrams”, because I couldn’t believe that you would take a position …

ABRAMS: (Laugh)

HEFFNER: … in opposition … was when we were talking about the media … and violence in particular. And you said the first nice thing you ever said … and the last nice thing you every said about what I was addressing … to you … talking about Constitutional protections … and I said to you, “You seem to be saying as you follow Holmes and Brandeis … that if there is, indeed, demonstration of … proof of serious injury … serious evil, then the First Amendment may have to be re-considered, not as an entity, but in terms of its appropriateness to bring into play”.

And you quote Brandeis. You say, quoting him, “It is the function of speech to free men from the bondage of irrational fears. To justify supposition of free speech … suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent”.

And I put that to you and you said, “First, Dick, you have with your unerring eye picked out the one weakness in Justice Brandeis’ opinion. That’s the use of the word “reasonable”.

ABRAMS: Yeah.

HEFFNER: I have the feeling that now you wouldn’t find that a fault … you’d use the word …

ABRAMS: Oh, I would. Oh, no, but I would …

HEFFNER: You wouldn’t?

ABRAMS: No, to import “reasonableness” into a legal standard is, is to, is to risk all that, that we’ve gained in, in protecting the First Amendment through, through the years.

In a lot of speeches … “unreasonable” or some judge could think it and certainly some jury could think it. If we’re going to limit speech, the limitations have to be really narrow … the likelihood of harm has to be very, very great and proved by the government. Not, not … the reasonable possibility.

I mean there, there are people I occasionally watch on television … on Fox, say … do I think they do harm? Of course given my political views. I think they do, they do harm some of them. I think they distort things. The Left does it also, but, but I happen to be focused (laugh) on Fox for the moment.

I wouldn’t think of suppressing their speech. In my view Rush Limbaugh doesn’t serve the American public by what he does. But it would totally distort the First Amendment for anyone to try to take steps and some, some Democrats by talking about imposing … re-imposing the Fairness Doctrine, were aiming at Limbaugh and the Conservative radio talk show people … that’s, that’s directly, flatly contrary to the core of the First Amendment. They have to be given their rights and their way and their ability to persuade people.

But I have a First Amendment right, too, to feel offended and outraged sometimes by what they say.

HEFFNER: You mention the Fairness Doctrine …

ABRAMS: Yeah.

HEFFNER: And you’re going to continue your, your …

ABRAMS: (Laugh) Yeah.

HEFFNER: … errant opinions …

ABRAMS: (Laugh) Yes, yes, yes.

HEFFNER: … about the Fairness Doctrine.

ABRAMS: Yeah.

HEFFNER: Because you think that fits into the category of using word “reasonable”. Reasonable, fairness …

ABRAMS: I think it fits into the category of allowing the government to make content decisions about speech and particularly so in political, social, cultural areas in which government involvement is the most dangerous of all.

HEFFNER: So that’s where we draw the line.

ABRAMS: Well … yeah … I mean that’s, that’s one of the … one of the places that I draw a line.

But I, I think the distinction that I’m making … which I don’t think you are buying … not for the first time …

HEFFNER: You noticed.

ABRAMS: … is between saying there’s a lot of speech out there that not only offends me, but I think does, does some harm. But I, I wouldn’t think of, of limiting it, let alone banning it. And I’d be deeply offended and I am when there are, there are efforts by subterfuge, usually, to cut back on the speech of people … who, with whom we disagree and who we think is harming the public.

HEFFNER: Well, of course, we just have a couple of minutes left and I haven’t persuaded the first question about where you’ve changed your mind. Other things specifically?

ABRAMS: I don’t think I’ve … I, I would say that … as new media, new technological computer driven website media has come to the fore, I’ve had to re-think … I, I can’t say I’ve changed my mind, I’ve had to re-think some areas of the First Amendment where my view was so affected by the fact that the users of these rights would generally have been professional journalists.

HEFFNER: What are you doing with that? How do you figure that one out?

ABRAMS: I figure it out broadly by saying the rules have to be the same. I mean I’ve been confronted in court some times, when I’ve argued for protection for journalists with respect to confidential sources, in those states that don’t have a shield law or in Federal courts … which doesn’t have a shield law … and I would say … and it’s happened more and more recently, you know, I’d say that First Amendment ought to be read in a way to, to afford this right. And now I’m confronted with … “Well, everybody’s now a publisher”.

Are you saying anybody that has a website … anybody …can hide any secret anybody tells them … and it’s a hard question.

I mean, my answer is “No” not everybody, not all the time … they have to behave in a sort of journalistic way … gather information for dissemination to the public. But it takes a lot of re-thinking is all I’m say.

And, and it leaves me with less sureness … you’ll be glad to hear.

HEFFNER: (Laugh)

ABRAMS: About some of the things that I’m saying.

HEFFNER: Glad to see that you’re in the same position I’m in.

ABRAMS: (Laugh)

HEFFNER: Floyd, thank you so much for joining me today. And I’m sure you’re going to join me many, many, many more times.

ABRAMS: Good to see you, Dick.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time and many times. Meanwhile, as another old friend used to say, “Good night and good luck.”

And do visit the Open Mind website at www.theopenmind.tv

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.