Floyd Abrams & the First Amendment: Nuance & Absolutism

Prior to Nuanced Absolutism I had known Floyd Abrams for years, but largely in a professional capacity as a colleague in the First Amendment community. When my book The Fundamental Holmes: A Free Speech Chronicle and Reader. (Cambridge University Press, 2010) came out, I sent him a copy. He read it and replied with a kind e-mail. He thanked me for noting his involvement in arguing Landmark Communications v. Virginia (1978), an important First Amendment press case. He then asked if I had seen his brief and had read the transcript of the oral arguments in the case. I had not, though soon enough that changed.

Hence, Nuanced Absolutism began accidentally. Originally, it was no more than an exchange of ideas (about Justice Holmes, free speech, and related matters) between two colleagues who had a little spare time on their hands. What evolved and took shape did so in so many unexpected ways. It started with e-mails, and then more and more of them, and then telephone conversations, and then Floyd began to share yet more of his unpublished works, which were quite numerous and thought-provoking.

At the outset it was just that, two of us exploring ideas about free speech and other things that matter. As the e-mails piled up, it occurred to me that I might use them and related ideas to do a sort of sketch of Floyd and his remarkable career in First Amendment law. The more we communicated, the larger and more detailed that sketch became.

Soon enough a small book emerged. To his credit, Floyd never once interfered with the integrity of the process of the work. (A few months ago, at Yale Law School, we spoke about how Nuanced Absolutism emerged.) So, I started by reading Floyd’s briefs and oral arguments in the Landmark Communications case. That’s where the idea for “nuanced absolutism” came from.

In course of oral arguments in the Landmark case, Justice Stevens asked Abrams: “What is your test? I am puzzled, as Justice Rehnquist is, by your saying we should not look at clear and present danger.” Indeed, Abrams was quite skeptical of Schenck v. United States (1919) case and its progeny. He wanted more First Amendment protection, though nuanced. He replied: “Now, what we urge to you at the outset is that at least with respect to truthful speech about public officials, in the course of their public functions, that there is no area, none, for imposition of criminal sanctions for publication.” Note the qualifiers I have italicized. That is the nuanced part, and the “none” is the absolutist part.

Twenty-eight years later, Floyd Abrams returned to and elaborated upon some of the arguments he tendered in Landmark Communications. He did so in connection with his book Speaking Freely: Trials of the First Amendment (2006). Here is part of what he wrote: “[During oral arguments in Landmark Communications] I responded that rather than utilize a loose and unpredictable clear-and-present-danger test, the Court should, so far as possible, consider speech categorically, asking whether this was ‘the kind of area in which there can be any limits’ on free expression at all. If the answer was no, the question was resolved. Here, I said, ‘at least with respect to truthful speech about public officials,’ there was no room for criminal sanctions at all.”

That kind of absolutism, or a variation of it, can be found in some of the Supreme Court cases in which the Justices have fashioned a First Amendment test that is so demanding as to be near-absolute in its protection. In 1988, Abrams said so much in a speech he gave at Harvard Law School. Here is a snippet from that unpublished speech, which he kindly shared with me while I was writing Nuanced Absolutism: “Are there really any absolutist First Amendment rights? Has the Supreme Court really gone so far as to say that, in any area at all, the ‘no law’ language of the First Amendment quixotically means no law? The surprising answer is that now and then, at least, ‘no law’ means just that.”

If you doubt the Abrams proposition, just consider the tests formulated and applied in cases such as New York Times v. Sullivan (1964), New York Times Co. v. United States (1971), Texas v. Johnson (1989), Reno v. ACLU (1997), United States v. Playboy Entertainment Group (2000), United States v. Stevens (2010) and Brown v. Entertainment Merchants Association (2011), to list but a handful of cases.

Against that conceptual backdrop, Abrams closed on a cautionary but nonetheless candid note: “There are risks in this. We would be surrendering the potential safety valve current law affords us. We would feel a bit less in control of our destiny if the now unthinkable hypothetical actually were to become real. But we would, at the same time, be gaining the sureness and certainty that current law cannot provide us with until theory becomes consistent with practice. And we would be far more faithful to the language of the First Amendment – ‘Congress shall make no law . . .’ — than we have ever been.”

Until theory becomes practice: Indeed! And that is the point of Nuanced Absolutism, namely, to show how lawyers such as Floyd Abrams have helped move theory from the law office and into courtroom and then into the Supreme law of the land. I will say more about all of that in my next post.