Serious Evil, Serious Injury and Citizens United

GUEST: Floyd Abrams
AIR DATE: 10/20/2012
VTR: 07/26/2012

 I’m Richard Heffner, your host on the Open Mind.  And my Open Mind guest, for what must by now be the three dozenth time or so, is the distinguished New York Attorney Floyd Abrams, the American legal profession’s great First Amendment advocate.

  Now, back in the 1990’s, in one of our many television conversations in which – always unsuccessfully, to be sure – I try and then try again to move my guest just an inch away from what I consider and of course he denies is his free speech absolutism, I quoted from my guest’s brilliant Ralph Gregory Elliott Lecture, “Serious Injury, Serious Evil, and the First Amendment”.

  In it, Floyd had in turn quoted Supreme Court Justice Louis D. Brandeis, to the effect that … quote: “It is the function of speech to free men from the bondage of irrational fears. 

“To justify suppression of free speech,” – wrote Brandeis – “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 now, with so many, many presumably reasonable political scientists, press people, pundits and pollsters having reported that the larger danger posed to our political system by his Citizens United victory in the Supreme Court is not only imminent … but right here and right now…isn’t it time, I would ask my guest … I know his answer – but isn’t it time in the name of the “general welfare” of our nation as set forth in the very Preamble to our Constitution – isn’t it time for something of an about face on the matter of tolerating totally unlimited and ever greater partisan political spending by any and all giant interests? You knew that would be my question, Floyd.

ABRAMS: You know, I never thought of it that way.

HEFFNER: (Laugh)

ABRAMS: Maybe I should change my mind.

HEFFNER: Go ahead. Change it.

ABRAMS: But I can’t, I can’t. Look … for me, ahh, and I must say I’m still surprised how few of my friends who have cared deeply about the First Amendment, share this sense … for me this is by no means the hardest or even a very hard First Amendment issue.

We’re talking here about participating in a political process, advocating the election or defeat of candidates for public office and, in fact, in, in the very case itself, advocating the defeat of someone who is seeking to be President.

By my lights, there’s nothing more protected under the First Amendment than that. So, as I view it, the notion of rationing speech, if you will, by saying “only up to a certain amount” or of barring speech by saying “no corporation can engage in it except a media corporation”. So Mr. Murdoch can do it, but other people who aren’t in the media can’t. It’s just off limits. And so notwithstanding therefore your … I know … genuinely held views and those of your friends … sometimes my friends …

HEFFNER: And your friends.

ABRAMS: … I’m really sorry to see so many people who are prepared to support the rights of Nazis and pornographers and people who film the torture of animals … for those people to say … “Well, when it comes to speech about who to elect President … oh, in that case … we’re going to say ‘no’ you really can’t do that” … if you’re a corporation or if you’re spending too much money and engaging in too much speech … I don’t think there is such a thing as too much speech.

HEFFNER: Oh, Floyd, you know every time we talk together I wish so much that I had gone to law school and even just begun to learn the ways of the advocate.

I know that you’re a particularly brilliant advocate, but there is a way of taking an argument and putting up front here … as you do … those vicious ones who aim at limiting speech … when I think the people you’re talking about and I are … addressing ourselves to the other side of the equation … we’re more concerned because of the realities of the situation with the expenditures of larger and larger and larger sums. It’s that end of the equation that … gets us …

ABRAMS: Yes, but my translation of that …

HEFFNER: MmmHmm.

ABRAMS: … my translation is you’re more concerned with more and more and more speech in political campaigns. You don’t want these ads on or too many of them or the wrong people funding them or funding too many of them … and all of that, as far as I’m concerned is verboten under the First Amendment.

HEFFNER: Yes, but Floyd, what we’re … we are talking about as well … is not just more and more, but less and less comparatively speaking, we’re talking about voices that will become buried by those very, very, very worthy voices that you want to protect … no?

ABRAMS: That’s the sort of issue that comes up all the time; it came up with newspapers … when people would say “it’s a one newspaper town” and so Alabama passed a law saying … in the whole state … on election day … just on election day, you can’t have any new charges against a candidate, because if you do they won’t have a chance to answer. Just to be fair, just to make the political system better.

And the Supreme Court unanimously … a different Supreme Court, one you would like … unanimously said, “That’s alien to the First Amendment.” The, the idea of saying, even for this, gee, interesting … pretty good reason, maybe … disparity of power, too much overwhelming power … in that case … by the newspapers … often the only newspaper in town and very often the only serious speaker in the state.

And the answer was “Come on, let me stop thinking like that … in America we allow freedom of speech and freedom of the press and so if you tell me you have some good reason for saying that so and so, or ‘these’ people are talking too much or too powerfully … my answer is, ‘Deal with it economically’.”

You want redistribution of wealth to make life fairer in America. Do it through taxes. You, you want an … a way to assure that, that the people whose voices you think will be marginalized … try to have some public financing. But don’t limit speech and that’s exactly what you’re doing.

HEFFNER: Floyd, you’ve used the phrase, the expression “Look who’s not protecting the First Amendment now, look who’s attacking the First Amendment now” at various times we’ve done programs with that notion at our fingertips.

How do you feel about so many people you respect, so many people with whom you have been associated in many battles …

ABRAMS: Mmmmm.

HEFFNER: … taking the position that this time in this situation, reasonable persons will fear the unlimited political power of money more than the limitation on free …

ABRAMS: Mmmm.

HEFFNER: … on free speech.

ABRAMS: I’m deeply saddened. Deeply saddened.

HEFFNER: You don’t look it.

ABRAMS: … that I see people and institutions …

HEFFNER: Yeah.

ABRAMS: … that I care about being so willing to abandon speech of the most important sort … speech about elections no less … speech about who to choose for President. That’s the area they’ve chosen to say, “Well, there too much is too much. It just … we, we just don’t think we can stand to have people out there talking so much if it’s either the wrong people, or they’re too wealthy, or they have too much power …”

And my answer to that is, is … that, for me those answers are so … my answers are so fundamental in the First Amendment … that is too say I take from the First Amendment more about the protection of this speech, political speech … who to vote for speech than anything else.

If you, if you had said to me … in the examples I gave earlier … you know why … I mean why do we protect the right of, of some creep to go take pictures of animals being tortured and, and killed … I would say, “Oh, you know, that’s the price we pay for the First Amendment, because we don’t want the courts to get involved and the legislatures to get involved in the content of … but I would never say “What a terrible loss there would be … if we were to say “that’s not to be permitted”. Here, I think it’s a real loss.

HEFFNER: Well, let me ask you … you know the arguments of those who now oppose your point of view, you know them very well, because you’ve heard them so often, you’ve read them so often. How would you deal … seriously just in terms …

ABRAMS: Yes.

HEFFNER: … of saying, public financing. Because I don’t think any of us begin wanting to limit speech … I think we do, as you say, want to encourage speech, but we know that in this real world, with reasonable people … we see that more and more speech is being paid for by those who can afford it, comparatively so much more than those who can’t.

ABRAMS: Well, that’s always been the case. I mean it’s always been the case that, that people who have means … whether because they have money that they could spend now in campaigns, or they owned newspapers, or they, you know, Mr. Potter in Pottersville … I mean those aren’t made up stories.

We want to deal with equalization … there are ways, and it’s very difficult and I’m not suggesting that the votes are there to do the sorts of things I’m talking about. I’m just saying that, that the way we generally, at least, approach situations in which there’s a, a very high important speech interest on one side and there’s another serious interest is to see if there’s some way to accommodate both.

And the usual way to accommodate both of economic inequality is to deal with it economically.

HEFFNER: We’re not doing that and I turn back to your friend Mr. Justice Cardozo … Brandeis, I should say, but maybe Cardozo would have been in the same position … maybe Oliver Wendell Holmes … not wanting us to cry “Fire” when there isn’t a fire … in a crowded theater.

There have been, and that’s why I use that quote … so many instances in which we’ve said … it’s reasonable to put the greater weight on this concern than on that concern. There are concerns that you have, too, along with your concern with free speech.

ABRAMS: Oh, sure, there are other, other social interests … but, but the area in which we are most vigilant and in which I think we should be in protecting the speech element is political … politics.

The area in which we should trust Congress least in legislating is political. Politics. We don’t … I, I think that the notion of relying on legislatures to … I’m trying not to be pejorative … but to, but to make the decisions about how much speech should be allowed from different elements or groups or whatever in our society is, is contrary to the core …

HEFFNER: Well, maybe that’s why …

ABRAMS: … of the First Amendment …

HEFFNER: … I’ve waited quite so long to get you back here, Floyd, because we’ve certainly gone over this before. Now there is such a backlog of expression of concern at what Citizens United hath wrought … that I wonder if you don’t feel constrained …

ABRAMS: No, I just feel saddened that people ….

HEFFNER: About …

ABRAMS: … who once cared deeply about the First Amendment are quite so willing to give it up.

HEFFNER: You’re concerned about that …

ABRAMS: Yeah.

HEFFNER: … well are all these people unreasonable, do you think? Unreasoning, unreasonable people?

ABRAMS: I think that, that we have found that they are behaving as if the speech interest, when it really comes down to it … just doesn’t really matter so much when it conflicts with what they view as a sense of equity, or an … a too great abundance of power and the like.

And I have to say I think what they are showing … in, in part for political reasons … most of them are on one political side, rather than another, but, but in part because politics aside, they believe that the … their equalitarian impulses are such that, that we have to wipe away this significant element of speech in the service of assuring that there is a greater equality in speech.

That’s what the Supreme Court back in the 1970’s called an idea that is “alien” to the history of this country … alien …

HEFFNER: The equality … a greater equality …

ABRAMS: No, stripping speech in the name of equality. Striking down the ability to talk about political matters because you think some people have too much power. Yes, that’s “alien” to this country.

HEFFNER: Is it alien to say that what we’re faced with now is a … I won’t use the phrase “clear and present danger”, but I would go back to a less evocative series of phrases.

ABRAMS: I, I just think that’s unrealistic. I mean if you want to put aside the First Amendment now or put aside those speech elements and just address what’s happening in the country … you know, you know apart from whether there’s a good argument or a bad argument about the First Amendment, even there … no … I don’t share your view about where we are, or where we’re going.

Am I concerned sometime when Mr. Edelman comes up with another five million dollars? Sure I am. But …

HEFFNER: Why are you concerned … it’s more speech … he’s, he’s …

ABRAMS: No, no, no … I’m not … I’m concerned because I’m concerned when Mr. Murdoch has what I think is an undue impact on our cultural and political life.

But I take it as part of our free society that that’s the way we should be. And, and, you know, I wouldn’t think of cutting back on, on his speech or their speech.

I didn’t complain and you didn’t when George Soros was spending over $20 million dollars a few elections ago to try to get good progressive people elected. And I don’t think that people who weren’t complaining about that should be complaining about this because the wrong people now happen to be spending their money.

HEFFNER: You see you’re making one error. And it’s a factual error … I was concerned about the Soros expenditure. I am concerned with anyone’s …

ABRAMS: Well, I’m glad to hear it, I didn’t read that in the New York Times, at the time. I didn’t hear it from the Democratic Party, I didn’t hear it from the Democratic presidents, I didn’t hear it from the great Progressive friends that both of us have. I didn’t hear any of them saying, “Oh, my heavens, what a terrible thing … Soros is spending money, trying to elect Progressive candidates. That’s harmful to the system.” That all passed me by, if it happened.

HEFFNER: Now, am I to take responsibility for what you read and hear? Or for what others write and say? No. I’m talking about …

ABRAMS: Just you and I speaking? No world out there?

HEFFNER: … well, Floyd, but what are we going to do about this? Honest to God, what are we going to do about a situation in which … who has the gold rules. A different kind of golden rule …

ABRAMS: But they don’t rule. You, you are presupposing that they’re going to win every election. You’re presupposing that, that putting these ads on is going to so significantly change the political process, that all the bad people …who you think they’re supporting are going to be elected. I don’t believe that’s true. It hasn’t been true …

HEFFNER: What, what …

ABRAMS: … in the past.

HEFFNER: What do you think is true? What, what truths can we draw out of this whole business of money and politics?

ABRAMS: I think the, the greatest risk of money and politics is, is a sense of indebtedness by the, by the candidates. I think it is true that certainly access is easily available to large contributors. I don’t think that’s new, but, but it is certainly true.

I don’t think that, that we have corruption in the way I think we would both mean it. Moral corruption, political corruption as a, as a result of Citizens United or, or cases like or stemming from or preceding Citizens United. I don’t think that at all. And I think, in fact, we had a, a more open, longer lasting, more interesting, more competitive Republican primary this year than we would have, but for the activities and the money spent by the large supporters of the candidate.

I mean Newt Gingrich would have been out earlier. Right? That’s a bad thing for me, not a good thing. I think we want him in. Other candidates would have been out earlier … that’s a bad thing. We want more speech and, and I think that the, the money … the bad word … the money that was spent to buy the advertisements, that, that these people were able to put on has served, not disserved the country.

HEFFNER: You respect, I’m sure, in, in many ways, to a large degree, you friends and my friends … I’ll leave me out …

ABRAMS: All right.

HEFFNER: … who are complaining about Citizens United. Do you have any practical response to their concerns? And I don’t mean in terms of a political party …this political party or that …

ABRAMS: The most important thing they could do is to read the opinion … that’s a little too much to ask of ….

HEFFNER: Of course.

ABRAMS: … some. Ahemm, or to … really … to get involved with the facts. I did a brief. God save me … but I did a brief recently which led me to study all the money that was spent by the Super PACS, so to speak, in the 2012 Republican campaign. Now … and the question we were addressing …

HEFFNER: You mean the primary.

ABRAMS: The primary, right. The question was, “How much corporate money was spent in the campaign?”. There were over $90 million dollars spent by the Super PACS in advertising. Less than 1% came from public companies. Less than 15% came from companies, as a whole. All the rest came from individuals … the individuals, like Edelson … the individuals who basically funded … there were a lot of … small contributions also … but the big money … all came from individuals. It pains me that when I say this my, my Progressive friends either don’t believe it or think there must be something wrong with it. There’s nothing wrong with it.

Citizens United was a case about corporate money spending …

HEFFNER: Right.

ABRAMS: … and if you will, union money spending … there hasn’t been that much of it. There has not been that much of it (laugh), we have not been overwhelmed by it. The … if there’s a problem here in terms of the impact of the law and, and perpetuating wealth distribution in a way which is potentially harmful in campaigns … it’s because individuals now are participating to a much greater degree than ever before on a large scale.

I mean we’ve never had these $5 million dollar then another $5 million dollar money thrown into a, a … it happens it’s a Super PAC, but, but thrown into a campaign before.

Now, do I think that’s a, a bad thing? No. I don’t think it’s a bad thing (laugh). I hope there’s countervelling money on the other side. For the Presidential race I have no doubt that there will be.

Am I worried? Sure I’m worried sometimes that, that one side will have so much that it’ll overwhelm the other.

HEFFNER: Would you, in the most public and the most important activity that we can engage in as citizens … electing our public officials, would you accept the notion that it is a public function and it should be financed publicly only?

ABRAMS: No. No. I think people ought to be allowed to speak out and have their say without regard to a, a government funding project.

HEFFNER: By “speak out” you mean “pay out”?

ABRAMS: Pay out. Put ads on, publish books, publish pamphlets …

HEFFNER: Spend money.

ABRAMS: Well, yeah, you need … I mean you know … you have lights here, people have to buy them … we have microphones here, there, there are things that money has to be spend on in order for words to be gotten out to the public as a whole.

HEFFNER: Public funding would provide for words gotten out to the public as a whole …

ABRAMS: But on a limited scale, right?

HEFFNER: Well, you say on “a limited scale”. It would be up to you and to me, as taxpayers …

ABRAMS: Yeah.

HEFFNER: … to decide how vast the sums would be.

ABRAMS: Right. Right, and therefore how much we could speak, effectively speak … effectively speak.

HEFFNER: How much we could spend.

ABRAMS: Huh.

HEFFNER: You, you, you’ll keep doing that.

ABRAMS: I, I don’t understand, though … really I don’t understand how you can deny (laugh) that the money buys speech. Do you deny that?

HEFFNER: Do I deny that it buys the time on television, no? Of course not.

ABRAMS: And that the time on television is used for political advocacy … efforts to persuade people who to vote for. The sort of stuff that … there was a time we would have agreed the First Amendment protected.

HEFFNER: There was a time … no, I won’t say that. There was a time when all of your friends, and I think probably this is the time, would feel “Floyd, please, please, please see what the other damage is …

ABRAMS: Yes.

HEFFNER: … yes, you have to do something that negative as the Supreme Court justice I quoted before … because you had quoted him had said, but reasonable, rationale men know that at times …

ABRAMS: And he was talking about nation threatening military risk …

HEFFNER: And I’m getting a sign that I have to risk of our being …

ABRAMS: (laugh)

HEFFNER: … cut off the air …

ABRAMS: All right.

HEFFNER: Thanks for joining me again, Floyd.

ABRAMS: Thank you.

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

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.