Look Who’s Trashing the First Amendment

I’m Richard Heffner, your host on The Open Mind. And I admit that I’d begin to feel more than somewhat intellectually deprived if too much time ever goes by when I’m not joined at this table by today’s guest, renowned constitutional attorney Floyd Abrams, partner in the New York law firm of Cahill, Gordon & Reindell, and William J. Brennan Jr. Visiting Professor at Columbia University’s School of Journalism.

Fortunately, the J School’s distinguished Columbia Journalism Review recently published Floyd Abrams’ provocative, but not unexpected, article entitled “Look Who’s Trashing the First Amendment.” And I’ve been able to get him back here today to tell him just who is, and why.

Well, Floyd, who’s trashing it now?

ABRAMS: Well, my article is an attack, a critique, on what I would call the sort of liberal center. Not the far left wing, but the center left or liberal center of America as it views a lot of the current free-speech issues, many of which are issues in which conservative speech, or speech by conservatives, in one way or another, seems to be at issue. And I’ve been disappointed to see, although not totally surprised, that when the speech involved is the speech of the right, the left doesn’t tend to be very protective of it. Something we’ve seen historically from the right about speech from the left. I think the left should know a little better, if only because it has so often been victimized by censorship in America.

HEFFNER: Yes, but it’s interesting. I mean, I know that this derived from The Nation magazine’s symposium on Speech and Power: Is First Amendment Absolutism Obsolete? in which you participated, and a number of the people you’re talking about participated. But you, yourself, say these aren’t people from the far left.

ABRAMS: No, no.

HEFFNER: They’re moderates.

ABRAMS: Yeah. Look, I was not attacking, in this article, Katherine McKinnon for her views about what sort of speech should be allowed or not. I wasn’t talking about people that are out to suppress hate speech, things like that. I was talking about issues like campaign reform, the Communications Decency Act itself, and a variety of other issues at to which the center or the moderate liberal wing has been, in my view, unsupportive, unresponsive to First Amendment claims.

HEFFNER: But that’s why I would ask, Floyd… I know you to be a reasonable person, except sometimes when you and I disagree.

ABRAMS: True.

HEFFNER: But you are reasonable. Don’t you feel somewhat concerned about the fact that these equally reasonable, not far-out people are taking this position? Doesn’t it indicate something to you about a changed society?

ABRAMS: Oh, it does. It does. It indicates two things. First, in some situations it indicates there’s a real social problem which these people want to address. I think they shouldn’t address it by dealing with speech, but in other ways, if it should be addressed at all. I think that’s one of the general First Amendment lessons that we learn: that if you want to deal with excesses of American corporations, say, you don’t limit what they can say about it; you go after the problem. If you want to ban cigarettes, ban them. If you want to punish people for fraud, punish them. But don’t go after speech which is not deceptive and not fraudulent by its nature just because it comes from corporations.

In my view, maybe the most important, sort of throbbing current issue is campaign reform, campaign-regulation, if you will, issue. I think many of my liberal friends, because of a deeply felt sense that money has become too important in campaigns, simply aren’t recognizing anymore that the sort of speech we protect the most — not the least; the most — is speech about politics. And that the sort of legislation we should be most nervous about, most jittery about is legislation which keeps people from participating fully, to the most active nature that they can with respect to who to vote for. And I think that the sort of liberal center, if you will, has come round to the view that the wrong people have the money, they spend it too much, they influence too much. Those are bad First Amendment reasons.

HEFFNER: Floyd, do you think they’re trying to silence those people?

ABRAMS: I think that what they’re trying to do is to further their egalitarian aims. And the price tag of that is the First Amendment. That what they’re doing is saying, “Not enough people get to speak enough, and the wrong people are speaking too much. How shall we deal with this? Well, let’s cut back on all speech of people who have to spend money, you know, to buy the billboards, to buy the television time. After they spend X-amount of dollars, let’s cut that back, because too much of it’s on one side, or too much of it gives the people who say it too much power.” I understand those reasons. I’m sometimes even sympathetic with those reasons. But the answer is public financing, or there are other answers; not laws which say Steve Forbes can’t spent his own money, as much as he wants of it, his own money setting forth his ideas as to why he should be president.

HEFFNER: But I note that you modify that. First you say they are saying, “He can’t spend his money.”

ABRAMS: Right.

HEFFNER: And then you add, “He can’t spend his money beyond a certain amount.”

ABRAMS: That’s right.

HEFFNER: So I go back to the question: They’re not trying to prevent their political opponents from speaking, are they?

ABRAMS: Well, I think they are. I mean, I think that when they say you can’t speak more than X, you can speak X plus one, but not X plus three, yes, what they’re saying is we are going to prevent people who have more money than we feel comfortable with from spending it on campaign issues.

HEFFNER: Beyond a certain amount.

ABRAMS: Beyond a certain amount. But I translate, as the Supreme Court has, “beyond a certain amount of money” into “beyond a certain amount of speech.” Because I think in this area it really is the same thing.

HEFFNER: Has money always been equated with speech in our history?

ABRAMS: No. No. And it really wasn’t until the Buckley vs. Vallejo case in 1976 that the Supreme Court had to even address the issue of the relationship between money and speech, particularly in this context. I mean, for example, we can have progressive taxation, which takes more money away from wealthy people, on a percentage basis, than it does from poorer people. That doesn’t implicate the First Amendment at all. But it seems to me that if you say that no one can make a contribution more than $5,000, and I want to make a contribution to the ACLU or the National Rifle Association for an ad and spend more than $5,000, what you’re really telling me is, “Your speech is too dangerous.”

HEFFNER: Floyd, again, am I really telling you that your speech is too dangerous? Or am I saying that any speech that is carried beyond a certain point makes the whole political equation in this country a very difficult thing to maintain?

ABRAMS: Well, that’s the very reasonable way to say it. And that, indeed, is a prime motivation of proponents of legislation of this sort. But what they are doing, and one, underlined, ideological reason that they’re doing it is saying it can skew the result, it can skew democratic dialog if certain people — the people who have money — talk too much. And how are they dealing with that? They’re going to the government, and they’re saying to the government that the very entity the First Amendment is supposed to protect us against keep them from talking too much. Not from talking at all, but from talking so much that it drowns other people out. I don’t feel at all comfortable with empowering the Congress to make that sort of fine-tuning-like decision about how much speech about elections is enough.

HEFFNER: Now, if the high court had not fixed its canon in the direction of declaring speech or money to be speech, what would your point of view be?

ABRAMS: The same as it is. I would’ve said then the high court was wrong. I would be of the same view regardless of whether the Supreme Court happened to agree or not. I think in this area the Supreme Court was basically right. Now, that decision they wrote was a complex decision, and internally difficult, sometimes painful in distinguishing between expenditures and contributions, and allowing more limits on one than on the other. But while that’s important, that’s not the most important thing to me. The most important thing to me is: Where do we start? What is our sort of opening gambit as we look at this issue? And mine is: We’ve got to be very careful about empowering government to limit the amount of speech people engage in about elections.

HEFFNER: Floyd, you say we’ve got to be very careful.

ABRAMS: Right.

HEFFNER: I don’t think any of these other people are urging that we not be careful.

ABRAMS: Well…

HEFFNER: You’re saying we mustn’t do it at all.

ABRAMS: Right.

HEFFNER: You’re not saying we must be very careful about it. They say we must be very careful about it.

ABRAMS: Yeah. And then they promiscuously do it.

HEFFNER: Promiscuously?

ABRAMS: Yes, yes. They don’t require… What do they require? What is their test? I mean, why are they doing it? They are weighing the First Amendment and the balance, and finding it wanting against other social interests which they consider, at least in this area, more important: progressive values, egalitarianism. In other areas that I deal with in passing in my article: the avoiding of hate speech. In other areas, you know: assuring that women can get abortions. Well, I’m in favor of women having a chance to get abortions, but I think Justice Scalia makes a good case in his dissenting opinions that we have to be very careful about limiting the efforts of anti-abortion protesters to be very near abortion clinics and to really be heard as they are crying out against what they consider to be murder.

HEFFNER: You see, it is that very careful business again that, when I go back to The Nation magazine’s Forum, I don’t know whether the title pleases me that much: “Is First Amendment Absolutism…”

ABRAMS: No, it doesn’t please me. It doesn’t please me because I think probably everyone in the panel would probably agree, either for tactical reasons or because they believe it, that First Amendment absolutism is not something that they favor. But I think that a better-titled session would’ve been the lead speech in power, or, you know, what should trump the First Amendment. How great a showing do you have to make to overcome First Amendment interests?

HEFFNER: Well, you say, “What should?” You really mean “What could” trump the First Amendment, right?

ABRAMS: Given the law, yes.

HEFFNER: I don’t understand.

ABRAMS: What I mean is: What ought to be enough — I say, “Not much” — to overcome First Amendment interests, values in these areas?

HEFFNER: Well, of course, I’m at a disadvantage: I’m not an attorney; you are. You’re a distinguished constitutional authority. I’m, by training, a historian, an American historian. And I think, as I go back historically, reading my Madison, reading my Constitutional Convention, rereading what I know about The Founders, I think of their devotion to, oh, John Milton, and his question, “Who ever knew truth put to the worst in a free and open encounter?” And I know that many of the people who paneled here with you were concerned about that “free and open encounter,” wanting to create it or maintain it.

ABRAMS: Sure. Look, they’re good folks. They mean well. I hope they think I mean well. I think they’re wrong though. That’s all I’m saying. I think that when it comes down to the balancing process, the weighing process, that they’re not starting out with the First Amendment being given enough value. I think that they’re engaged in a sort of, what we used to call “ad hoc balancing.” What they’re saying is, “This piece just doesn’t matter that much.”

HEFFNER: These people? Arguing that way?

ABRAMS: Thinking that way.

HEFFNER: Thinking that?

ABRAMS: Yeah. What they’re arguing… What are they arguing? They’re arguing, some of them: We shouldn’t protect commercial speech, because, that is to say about products, because it doesn’t much matter. I think we in New York City see a wonderful example in front of us right now of how commercial speech is sometimes delicious: the attack on Mayor Giuliani in the effort to sell New York magazine. It’s a marvelous example of why we should protect commercial speech. We’re arguing about, again, our cries, as it were, outside abortion clinics. I don’t suggest for a moment that’s an easy issue, and my article does not say that that’s an easy issue. And women have got to have a right to get into an abortion clinic to have a constitutionally protected abortion. But it matters, it’s a serious First Amendment interest that opponents have a chance to be heard, particularly on a subject in which they genuinely believe that abortion is tantamount to murder. That’s all the more reason to give them their voice, their throat, their chance to be heard, even if it makes some of the women walking in feel a little less comfortable.

I mean, so the line that I draw in that area is a line between really suppressing conduct of the women getting in… I mean, obviously you can’t have everybody crowded around, you can’t have a blockade, you can’t make it impossible or so hard to get in that you won’t get in. But this speech is just as important speech as speech of the sort of reasonable, moderate, centrist, liberal folks that you and I spend a lot of our time with…

HEFFNER: And are.

ABRAMS: And are. And I’m not prepared to say that the subject matter of this speech or the side these people are on, or their behavior, doesn’t lead a lot of our friends to say, “Ah, come on, come on. Get away. Get away. You’re bothering people.” That’s bad First Amendment stuff.

HEFFNER: But, you know, it’s so interesting. You use the phrase, “Draw the line.”

ABRAMS: Right.

HEFFNER: You say, “I, Floyd Abrams, where do I draw the line? Here.”

ABRAMS: Right.

HEFFNER: So you draw the line somewhere.

ABRAMS: Sure.

HEFFNER: Isn’t that pretty bad First Amendment thinking?

ABRAMS: No, not at all.

HEFFNER: Why not? Draw the line?

ABRAMS: In favor of a line drawn.

HEFFNER: Doesn’t it mean, when it says, “No law,” doesn’t it mean no law?

ABRAMS: But that’s why I’m not an absolutist. I mean, that’s why I think we have a need. Libel law does some positive good. It’s not all bad. It’s not all speech-suppression. It’s not just threatening. My First Amendment view, like Justice Brennan’s, about libel law, is to make it hard for a libel plaintiff to win, but not impossible. To load the dice, as it were, on the First Amendment side.

HEFFNER: Okay, but let’s go back to this drawing-the-line business, and you disavow any absolutist tendencies.

ABRAMS: Why are you snickering at me as you say that?

HEFFNER: First time on this program, Floyd.

ABRAMS: Not so.

HEFFNER: Not so?

ABRAMS: I have never held myself out to be an absolutist.

HEFFNER: Well, okay, I won’t argue; I’ll just go back tonight and look at all of our transcripts.

ABRAMS: Right.

HEFFNER: Whatever, Floyd, very seriously about this, what you disagree with these people on seems to be where they draw the line.

ABRAMS: Sure, sure.

HEFFNER: Not a question of drawing the line.

ABRAMS: Oh, yeah. It is. It’s not a question of whether to draw a line.

HEFFNER: Right.

ABRAMS: That’s correct. That’s correct.

HEFFNER: Okay.

ABRAMS: But that doesn’t minimize what we’re talking about. I mean, the fact that everyone’s involved in line-drawing doesn’t mean that we’re all doing more or less the same thing and that, you know, we’re all just sort of in the same ballpark and, you know, one degree or two degrees off. I mean, I think the question we have to keep asking is: What’s the rule, and what’s the exception? Where are we starting? What is the focus that we’re taking? How are we approaching the answers to sometimes hard questions like these?

I don’t deny, Dick, for a moment, that money in politics causes problems. But what I’m saying is that, when what’s going on is speech about politics, we ought to start out with a very strong presumption in favor of government being out of the picture.

HEFFNER: You know, it’s wonderful. I love you dearly for what you can do with thoughts, ideas, words, because you say it’s not as though we were talking about money; we’re talking about ideas, speech. When, indeed, you’ve already made the jump from a court decision that money is speech. So you are talking about money.

ABRAMS: No. I think that money and speech, in the political arena, become all but the same thing.

HEFFNER: Do you think that’s what the Founders meant? Do you really? Just between us. No one is watching.

ABRAMS: I don’t think they thought of it. [Laughter]

HEFFNER: Come on.

ABRAMS: Come on. The Founders didn’t think about political ads or television. We can’t expect that from them. All we can expect is a general command which sends us in a direction, a beam of light, the beam of light is the beam, if you will, of free expression. That’s what the Founders have left us with. We have to do all the work after that. We can’t lean on them to tell us what to do about speech and money or how to draw some of the hard lines here.

HEFFNER: But now which position are you taking? I thought you were taking the position that they said, “Congress may make no law.” I don’t mean “no law” means no law. But that this is the basis of your thinking: what it is they thought and said. And I’m just asking you whether you think what it is they did think can be equated with this “money is speech.”

ABRAMS: I don’t know what they would’ve said if they had thought about it. I think they would have said, “Most of all, we mean we will not trust the government to make basic decisions about who’s saying what about who to vote for.” Now, if you add on the question, “Well, what if money has an impact on that?” what do I think they would have done? Yeah, I think they would’ve come out pretty close to where our law is today. I think they would’ve said, “In Twentieth Century, in 21st Century America, it costs so much to get on television or to rent a billboard or to buy or rent a megaphone that if we allow the government to regulate that, you know what we’re really doing? We’re letting the government regulate speech. We’d better be careful about that.”

HEFFNER: See, that’s why I say I’m at a disadvantage. Or maybe, Floyd, what I really mean is that I’m at an advantage as a historian, because I think a fair reading, an accurate, obviously, reading of the Founders would indicate that their sense of balance, of measure, their general approach, was such as to try to achieve their objectives not to stand in their own way in achieving their objectives, and the notion of finding the means by which we can say, “Look, we’re looking for the utmost, as much expression, as many people expressing political ideas as possible,” would lead them to think, “Let’s balance the equities here. Let’s not let this go all the way off this scale.”

ABRAMS: But, you see, I’m struck by the fact that in your articulation you left out the word “government.” You left out the concept that what the Founders were most afraid of, seeking most to deal with, was the risk of governmental decision making about speech. That’s the beginning of it. The beginning is not to create a great society of speech and speakers; the beginning is: government has in the past, in the history of the world, abused its power. And in this particular, critically important area, particularly abused its power with respect to speech. We won’t let them do it here.

ABRAMS: Of course, what we do then is, you put your emphasis on government, and I would put my emphasis and your friends’ and our friends’ who spoke with The Nation and wrote for The Nation, or many of them, at any rate, would put their emphasis upon a different kind of power, perhaps just as overwhelming.

ABRAMS: And that’s one of the critical issues in law today, in First Amendment theory today, and in American political theory today. What are we talking about when we talk about the First Amendment? What are the values we really are talking about? Yeah, I do come down very strong on the proposition that the First Amendment is, at its core, a protection against government control over speech.

HEFFNER: And what will protect us against other than government control over speech?

ABRAMS: Not the First Amendment. Don’t look to the First Amendment for that.

HEFFNER: What should we look to, Floyd?

ABRAMS: What can you do that?

HEFFNER: What should we look to? The Fourteenth?

ABRAMS: No. You can look to Congress if you choose to, and an administration to enforce the antitrust laws. If you think corporations are too powerful, you can deal with that without touching speech. Maybe people don’t want to deal with that. Maybe they’re right not to want to deal with that. If you want to deal in the economic sphere, the pure economic sphere, the power of American companies, if you want to deal through taxation, if you want to deal through one or another of laws which we’ve had a lot of play with in our society over the last 50 years, which have to do with who’s got money, how shall we distribute it, to what extent shall we limit the power of certain entities in our society, you can do that, without interfering with the First Amendment. When you get into content, you’re going right for the First Amendment. And when you start saying, “Some people can do this, and other people can’t,” or, “Some people can’t do this anymore, any more than this; we, the government, we’re going to tell you how much money you can spend on politics.”

HEFFNER: But no one has ever suggested “some people” rather than “other people.” It’s “No person can spend more than so and so.”

ABRAMS: Yeah, but we know, don’t we, that the effect of that is that the people who have the money therefore can’t spend it? That’s what it’s all about. That’s why it’s all about, is to limit them from spending because of fear of how they will spend and what the impact will be of their spending.

HEFFNER: The Golden Rule: Who has the gold, rules. And I’m glad I got that in, because our time is up.

Floyd Abrams, thank you so much for joining me again today.

ABRAMS: Thank you.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. Meanwhile, if you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 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.