If Jefferson Were Here

THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: “If Jefferson Were Here”
VTR: 1/17/88

I’m Richard Heffner, your host on THE OPEN MIND. You know, I owe a good deal to today’s guest. After all: admiration, respect, and affection – all these are hard to come by. Yet he enables me to feel them all toward him in great abundance…and that’s no small blessing these days, particularly when I think of the points on which we disagree. More than that, the enormously accomplished and universally highly regarded First Amendment attorney Floyd Abrams so stretches my own abilities as a television producer/moderator that now Mr. Abrams has enabled THE OPEN MIND to achieve a distinction I have wished for it ever since I began the series in May, 1956: The New York State Bar Association has awarded the coveted First Prize in its Media Awards Competition to THE OPEN MIND for a program in which Attorney Abrams and I had as our theme: “The Adversarial System – An Ethical Concern”.

I think the Bar Association, am reminded that I opened the program now honored by sharing with you my realization – as an erstwhile historian – of how large a legal ingredient there is to American life, of what an enormous role lawyers play in what we do, who we are, what we think as a people. I publicly regretted not having become one of them, delighted in having a son who did, and is an Assistant District Attorney, and settled for the ability every once in a while to talk here on THE OPEN MIND about legal issues that touch us all.

In fact, the last time I did so was also with Mr. Abrams, shortly after the oral argument before the Supreme Court of the United States of a free speech case involving the Reverend Jerry Falwell and Larry Flynt’s Hustler magazine. Toward the end of our program I referred to an enormously thought-provoking speech my guest had made at UCLA that ultimately touched on the original free speech intent of our Founding Fathers, and feigning dismay at Mr. Abrams’ First Amendment absolutism, I asked him this question: “Just between us, if we really could go back to old Tom Jefferson and Madison and the others, do you think they’d be embracing what it is you’re doing now? They, not the First Amendment, not the document, but they as individuals?” And I think that’s where we ought to pick up. Floyd, what’s the answer?

Abrams: Oh, who knows? I think they would be very, very firm advocates of very strong First Amendment protection, surely as against the Federal government, and very likely as well against the states. But of course we’ve had so much constitutional development since their death…it’s hard to say. But they cared about things like this. And they also thought that they, at least when they were out of power, Jefferson, of course, was very harsh on the press while he was President, but at least when he was out of power, Jefferson was very clear, very firm and quite militant in his defense of freedom of expression and so was Madison.

Heffner: Of course, when you were here last time and we were talking about the Falwell/Flynt case I had asked you that question at the very end and that’s why I read from the transcript. We had been talking about he abuses that had taken place and you were being…well, I wouldn’t say very un-Floyd Abrams-like, but you were conceding all along about how reprehensible, how awful all of that printed material was. You said, “Of course, we shouldn’t do anything about it in terms of the feelings that those things provoked. But at the end you didn’t quite answer the way you did now. You said, in answer to my question, “I guess I think if they were here today, I mean if they could stop in”, and then you said “spend a month in America and then answer the question, I think they’d be on my side. I think that if all you could do was make a telephone call to them and say, ‘Look, here’s a quick decision, just answer me yes or no’, then I’m not so sure”. You’re saying that if you could have their ear for a month or so…

Abrams: I think if we could have their ear…I think if American society could have their ear…But what I meant is that if you were to ask Jefferson a sort of a short answer question which included the sort of thing that Larry Flynt publishes and ask him if that’s what he had in mind when he wrote the First Amendment, when Madison wrote it, when Jefferson worked on the Declaration of Independence, is that what they had in mind by liberty? I think they’d say, “No”. But if you were to ask them, “Look”, we’re talking about law now, “What law shall we make here? What law did you make here when you wrote the First Amendment?” I think after sitting down and thinking about it and looking at American society and American life and the law that’s developed, that they would be pretty much where the law is and probably somewhat more militant in defense of First Amendment rights than our law even is today.

Heffner: When I…when we wrote up the transcript and I re-read it and I looked at the program, watched it on the air, I thought to myself, “Gee, Floyd is wrong, it goes the other way. If you’d asked them on the telephone, ‘Are we going to let your Constitution and your Bill of Rights be damaged in this way, will you accept it?’ “I thought, on the telephone, quick call, quick guess, they’d say, “Not for a minute”. But if you showed them around contemporary American life, then they might have…be more squeamish about it.

Abrams: You see, I think they’d have to know how the legal system has come to work. The development of precedent, the change of law from year to year, decade to decade, how important it is that a case that’s decided about Larry Flynt which can have an enormous impact on all sorts of other cases involving people less unattractive than Larry Flynt. They’d have to know that. Because if all they were doing was answering the question “Is this what you had in mind”, then I suppose they’d say, “Well surely that wasn’t what we were thinking a lot about”. And I think, in truth, that they would find unimaginable the fact that what Larry Flynt is routinely…what Larry Flynt writes is routinely sold on newsstands. But that doesn’t mean that they would say, “You can’t do it, you can’t sell it. Or that we meant for you not to be able to say things like that”. That’s the problem with original intent…is that we can’t just say, “What would Jefferson and Madison say if we asked them?” It has to be a Jefferson and Madison, if this is what one wants to focus on, if Jefferson and Madison, with some knowledge of what America has become and that the development of law and the development of life and the power of government and the risks of press abuse…all those things, and then I think if you were to give them a quick course, shocking though it might be to them, that they would be very militant in defense of freedom of expression.

Heffner: You know, I was thinking of another phrase, another Jeffersonian phrase “that…pure Jefferson”, decent respect for the opinions of mankind, opening the Declaration of Independence. And I was aware, after we did our last program of how many people, I don’t mean millions, I don’t mean hundreds of thousands, I mean the people who call and meet you on the street and say, “Hey, I saw that program”, how many people were so delighted with what you had to say here? Because they saw someone, I don’t think I’m speaking out of turn and I don’t think I’m misrepresenting them, somebody who had mellowed, somebody who also shared with them that great distaste for what Hustler printed, not just in that issue, and I wonder whether that decent respect for the opinions of mankind doesn’t command some modification of those protections that you are so devoted to.

Abrams: I hope not. I really hope not. It seems to me that if one starts saying that we should change law or apply law in such a way as to say that we only protect material which, what – you and I? – think deserves the decent respect of mankind, or juries think deserves the decent respect of mankind…We’re just going to have routine plebiscites in front of the jury about what is worthy and what is virtuous. I do believe that one of the things the First Amendment was most designed to avoid was that, and so it would just be appalling to me to re-write, as I would view it at least, to re-write our law so as to protect only the sort of material which the good and the righteous and the virtuous people, like you and I, would think should be protected, I find attractive or the like. We just can’t live like that.

Heffner: Well, I know, of course, and you’d say…and sometimes I wonder about you, if you and I were the only ones to do it. But, look, we have a glass on the table. It doesn’t happen to accommodate my interest in being…it’s a little more than half full. But the old half-full, half-empty question I think has to come up there because when I was referring to decent respect, I was referring to Jefferson’s statement that “We must have a decent respect for the opinions of mankind”. What do you do, what do you, not just as a lawyer, but as a citizen, do with the qualms and the uneasiness, the more than qualms and uneasiness of so very many Americans at this time at what First Amendment permits?

Abrams: Well, for one thing, I share them. What do I do about them? I try to explain to the people that they should not confuse their qualms and their distaste for the sort of thing that passes as literature or magazines occasionally in American life, for law. And I try to say to them, “Look, this is the sort of thing we have to leave alone if we really want liberty to be preserved”. As you asked the question, I was thinking of something else I would have Jefferson do. I’d take him not just to this country, I would take him abroad. I would try to show him what happens in the rest of the world where they don’t have a First Amendment and where they do decide about what is virtuous or tasteful or decent, as defined usually by the dictatorship that runs the country there, but just as often by the public as a whole. And I think that if he could see the loss of freedom that comes from saying, “That which you print has to be worthy or virtuous”, that he’d be even more persuaded that we just have to be unhappy, have qualms, be distressed occasionally about what we see, but still allow it. Jefferson, as President said once, “Nothing can now be believed which is printed in a newspaper”. I don’t know what he’d think if he came back today about the quality, even of our, say “middle-brow” newspapers. But I don’t think he would say, “Let’s get rid of it” or “Let’s make sure that the best people in this society find it acceptable before we allow it to be brought out to all the people”.

Heffner: Floyd, as long ago as the Joe McCarthy period, when someone put together the Declaration of Independence and the first ten amendments, the Bill of Rights, in the form of a petition and distributed them in certain states in this nation, he couldn’t get very many people to sign that and that was a long time ago, that was presumably before there had been quite so much disaffection with the press. What do you see as happening to the protective concerns you have for First Amendment liberties in this nation?

Abrams: I think the public is really more supportive of freedom of the press than you might think, than a lot of people might think. I think the public really can distinguish between material that they don’t like and material that they don’t think should be allowed. And I think they do it all the time. If the public really weren’t able to do that, the Congress which has occasionally gotten its head on topics like this, probably would have passed some law. It would have been unconstitutional, but they probably would have tried to pass some law limiting press freedom. Some state legislature would have tried. And I mean a broad law, not just the occasional law which all our courts have held violates the First Amendment. But some sort of law imposing taste limitations or some effort at making sure that what the public gets is worthy of the public. The only people I hear talking like are occasional law professors, and then more often of the left than of the right.

Heffner: What do you mean?

Abrams: That there are some professors of constitutional law, not too many, but there are some who are so disaffected from American life and so miserable at what they view as the perversion of freedom of the press, by the press, what they’d go a long way in saying, “Look, that’s not what Jefferson had in mind at all”. Now they don’t mean sexually oriented material…

Heffner: Okay.

Abrams: …they tend to mean “Dallas” or even more overheated broadcasts, dramas, so-called dramas and particularly with a lot of violence, and some of them would say, “Look, this has nothing to do with what freedom of the press was meant to mean or should mean. Let’s do something about it”. Well you don’t hear much of that from the public. There are some groups, generally on the right, in American political terms, but rather small and so far, at least, not too powerful. And there are some law professors, as I said, generally on the left, and fortunately, not too powerful. But I think the public as a whole really accepts the proposition. Obscenity, you see, is something else, or sexually-oriented materials are very hard for people to take and a lot of people really think that that just shouldn’t be allowed. But if you extend that and if you extrapolate from that and you say, “Look, put that sort of material aside. Do you think people ought to be able to say really outrageous things about the government that you think are just awful and even harmful?” I think you’d be surprised at the amount of people that would say “Yes”.

Heffner: But that was a question that we could have asked more appropriately some years ago, a generation ago. Today, given the massness of the media, given sexuality or violence, what you will, whether it disturbs the left or the right, don’t you think we’re in more danger?…Because we’re not talking about political opinions, we’re not talking about what would be called “seditious” speech, we’re talking about other things that have to do with the quality of our lives. And there I wonder whether there isn’t a greater likelihood that there’ll be a movement away, toward the rest of the world.

Abrams: Who’s to say? It’s possible. I don’t think we’ve seen a major trend in that direction. It’s stunning to me sometimes what happens in obscenity cases, if prosecuted. And that is that an awful lot of defendants get off. There are a lot of acquittals. Now, intuitively I would have said if you bring up any of these people, they’d be convicted. And I would have thought that it was just a prosecutorial decision not to bother to put precious resources in the service of these cases. But no, we’ve tried people for putting out what would have been unthinkable motion pictures and books, what…ten years ago, you try them today and they very often are acquitted. Now that says something about a public movement. Is it toward a greater sense of civil libertarian devotion or is it simply a recognition that this sort of thing is all around us? I don’t know. I think maybe some of both. But I just don’t sense in the public a desire to do away with, sort of, serious First Amendment protections. And I see in court, even in cases where the press loses, the jury comes up and they say, at least, that we really care about press freedom, just not here. I think they mean it.

Heffner: What about the rest of the world? You’ve traveled very widely and you’re always interested in these concerns. Is there a movement further and further away from this Jeffersonian tradition?

Abrams: I would say so. I think if you look around the world, you really see a world which is wholly at odds with what we might call the Jeffersonian tradition. In Singapore today, for example, the amount of copies of the Wall Street Journal that may enter has been cut down to, I think, fifty copies because the Singapore government, not at all the most repressive in the world, but the Singapore government found articles distasteful to it. In the United Kingdom today…

Heffner: I was thinking about that…cradle of liberty.

Abrams: Well, this absurd and laughable and sad effort of Prime Minister Thatcher to go and try to prevent this book Spycatcher, which all of us can buy and all of the Russians can buy, who care about it, on our newsstands, at least KGB can buy on our newsstands, to try to prevent for absolutely inexplicable reasons, except pride and preening, I think, that…it is all so unthinkable there to say, “There’s a book which has been published. Everybody can buy it. It’s by a British agent. Maybe it shouldn’t have been published, maybe it’s a bad thing, but it’s out”. To start with that and then say, “Let’s try to keep more people from reading it”, is just so absurd, as well as contrary to First Amendment principles, that it is profoundly un-American.

Heffner: The British don’t mind being profoundly un-American.

Abrams: They certainly don’t. And, indeed, one of the law lords in the Spycatcher case referred, in his opinion, to “the dubious benefits of the First Amendment”.

Heffner: You mean cast an eye at the United States?

Abrams: That’s right, that’s right.

Heffner: I remember, about fifteen years ago, researching a paper on Soviet attitudes toward direct satellite to home broadcasting. The soviets had introduced a measure in the General…in the Security…no, in the General Assembly, calling for prior censorship of direct satellite to home broadcasts. And the vote was a hundred and one to one. We were the only ones who cast that vote, but in the arguments over at 42nd Street there, in the United Nations, had to do with, “Look at this nation and what has happened to it with First Amendment considerations”.

Abrams: They all think we’re crazy. You don‘t have to be a Communist or totalitarian system to think that our system is crazy. It’s just great that we know we’re right! (Laughter)

Heffner: What about the Israelis?

Abrams: They now have a mixed system, very free on a world scale, but still not at all as free as we. They have censored some Arab newspapers. They have some remnants of English law, they have some degree of military censorship. As a general proposition, they have an enormous amount of press freedom, as much as Western countries tend to have. And that they have it during a time of what is essentially war, is really an extraordinary tribute to them. But it’s not like our system.

Heffner: I was really asking about direction. Is there a push toward viewing what we do and saying, “We admire that, we want some of it…”?

Abrams: Some of their judges, yes. Some of them embers of their Supreme Court are citing with ever increasing frequency, in fact, I would say all the members of their Supreme Court are citing with ever increasing frequency, our First Amendment decisions. India, too. More and more Indian courts have been taking account of American First Amendment rulings. And it’s been of some help, I think, in countries where the things go bad and where people like Mrs. Gandhi some years ago, go much too far. Our cases are becoming world class and world distributed cases and the American First Amendment is really having enormous impact abroad, at least for that reason.

Heffner: But you see, that was the question I asked. I wondered whether we are having, positively speaking, not in the UN business of “Look at what happens in this society with the First Amendment”, but are we exporting that First Amendment, as we used to export American constitutional…

Abrams: I think so. I think we are. I still would say what I said earlier, and that is that taking us as a whole and they, as a whole, that they think we’re crazy. But First Amendment decisions are being cited more and more and quoted more and more around the world. There is an additional thing going on. And that is that so long as you have a country like ours which allows so much speech, it becomes harder and harder for countries outside this country to suppress speech of the same sort that we allow because it becomes meaningless. As in that Spycatcher case, it becomes foolish. So what they would think of as sort of a lowest common denominator approach, if the Americans allow it, we can’t stop it. Not because we shouldn’t, but we can’t stop it from getting out and what we would view, I hope, as a recognition of proper First Amendment interests. We don’t stop speech except in the most extraordinary circumstances, putting it together, it means that I think we’re seeing more speech abroad as well as at home. And I think that’s all to the good.

Heffner: Because I am Chairman of this rating system, the movie rating system in our country when I’ve gone to…a couple of times to international conferences, I’ve been just about hissed and booed off the stage because we are the ones who permit anything. We may classify it, but anything goes. That’s a very, very difficult thing for people to take. Well, we just have a couple of minutes left. I want to ask you, although this program won’t appear for some time after this discussion takes place, the case that just was ruled on in the Supreme Court of the United States, concerning a school newspaper. How do you feel that stacks up with you? You’re not exactly sanguine, but you’re more hopeful about First Amendment concerns.

Abrams: Well, I think it’s a very troubling…sort of a sad opinion. We’ll survive, kids will survive, but I think it will make for a lot more suppression for a lot of speech that really ought to be allowed in the High School context. It’s not easy to draw lines, and kids are different than adults. But the line that the Supreme Court drew I think is so unprotective and gives the school boards so much leeway that I would find it unacceptably unprotective.

Heffner: But The New York Times said, “The court made a practical decision about responsibility and control of student expression at the High School level. It is of enormous importance, however, that this power not be exercised to prevent students from investigating matters of high interest”, etcetera, etcetera. Why are you so…

Abrams: My friends on The Times, I think, would not talk like that if this were an opinion about something that they took more seriously than the speech of High School students. But it is not the usual position of the American press not to say The Times, that we can just sort of make a practical decision about how much speech seems to be alright under the circumstance, and admonish the people who have the power to limit speech, to exercise their power in a responsible way. I found that editorial sort of chilling in its own way. But that’s just a way of saying that I disagree with it. I really think that the Supreme Court opinion just gave less than lip service to First Amendment values, even if you say, as I would say, that High School students are not entitled to all the protections, and that they will be when they grow up. I think the specific lesson that was taught was really the wrong one.

Heffner: Justice Brennan’s…

Abrams: I think he’s right.

Heffner: …point.

Abrams: Yeah.

Heffner: Floyd Abrams, it’s always a pleasure to talk about these things. I’ll admit that at the end of our programs, I never come away thinking, “Now I know”…

Abrams: I thought you were persuaded.

Heffner: Persuaded?

Abrams: (Laughter)

Heffner: Floyd, thank you so much for joining me today.

Abrams: Thank you.

Heffner: Thanks, too, to you in the audience. I hope you’ll join us again next week. And if you’d care to share your thoughts about today’s guest, today’s theme, today’s program, please write The Open Mind, P.O. Box 7977, F.D.R. Station, New York, NY 10150. For transcripts, send $2.00 in check or money order.

Meanwhile, as another old friend used to say, “Good night, and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wien; and the New York Times Company Foundation.