Floyd Abrams & the First Amendment: The Risks of Liberty

Here is the last installment before Mr. Abrams’s post. Thanks to Eugene for having me and thanks to all for the comments (critical ones included) from your readers. RC

“Our approach under the First Amendment has wisely, I think, generally been to risk suffering the harm that speech may do in order to avoid the greater harm that suppression of speech has often caused.” That line is vintage Floyd Abrams. So, too, is the following one: “The oldest reality about the First Amendment is this: Hardly anyone really believes that we should protect the speech of those with whom we differ.” In other words, protecting free speech can be risky and can mean protecting the expression of those who offend us.

As a First Amendment lawyer, Floyd Abrams has time and again urged courts to take risks and tolerate offensive expression. Consider, for example, his views on WikiLeaks and Julian Assange. On the one hand, he has been openly critical of “WikiLeaks’ persistent recklessness” in making public documents that could likely threaten lives or actually impair national security. Hence, he argued, the press should exercise a measure of critical judgment about what to print or not print. That is the judgment call of a responsible press.

Of course, such a press prerogative should not be confused with any carte blanche right of the government to censor speech absent compelling reasons. Or as Abrams put it: “None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should.”

If owing to his brand of absolutism Floyd Abrams is seen in some quarters as a First Amendment voluptuary (to invoke one of Professor Bickel’s favorite jabs), then his hardy criticisms of WikiLeaks may be seen in other quarters as signaling a retreat from such absolutism. But when pressed, Abrams denies this is the case, asserting that “if the government makes the ill-considered decision to charge Mr. Assange with a crime as a result of what he released or published, I would maintain that the First Amendment protected him. His acts were, in my view, reckless to the point of being dangerous but not to the point of depriving him of First Amendment protections.” (There is, to be sure, more to this story and more is told in my account in Nuanced Absolutism.)

By way of a somewhat related point: In 1980 Floyd Abrams and Antonin Scalia (then a Stanford law professor and former assistant attorney general in the Department of Justice’s Office of Legal Counsel) found themselves on different sides in the testimony they offered to Congress concerning the Intelligence Identities Protection Act.

And what about offensive speech? Here, too, Floyd Abrams has stepped on many delicate toes. In this regard, consider what Abrams had to say in a 1994 New York Times exchange with the noted feminist and anti-pornography activist Professor Catharine MacKinnon. “We need a First Amendment most of all to protect people who say very unpopular things, unpopular with government, unpopular with the public at large. We do not permit and should not permit the First Amendment to be overcome on the basis of some sort of continuous balancing, where we simply look at the supposed harm caused by speech as against the supposed value of what is said.”

There was a time when liberals proudly defended a bold measure of First Amendment freedom and conservatives firmly contested such efforts. But times have changed. As Abrams sees it: “I think there is a significant effort to restrict First Amendment values, if not legally defined First Amendment rights, which comes from the liberal community or the left-liberal community. Why is that so? It is human nature. People don’t like to permit speech of which they thoroughly disapprove, and liberals are no more able to disassociate themselves from trying to impose into law what they wish people would say than conservatives are.”

Much of today’s push back comes from the likes of liberal law professors who take stern exception to Floyd Abrams’s defense of First Amendment rights such as those vouchsafed in Citizens United v. Federal Election Commission (2010). Similarly, they voice outrage at his First Amendment defense of tobacco companies in cases such as R.J. Reynolds Tobacco Co. v. United States Food & Drug Administration, 696 F.3d 1205 (D.C. Cir. 2012).

Sometimes loved, sometimes reviled, Floyd Abrams has sought to buttress First Amendment freedoms as he understands them. Of course, in these modern times others have different understandings of the First Amendment and different ideas about freedom. But that does not deter him — he goes on to fight another day, to raise his constitutional lance anew. Abrams, ever amiable, relishes the give-and-take of a good argument. And as you will see in the next post about his new book, Friend of the Court: On the Front Lines with the First Amendment, Mr. Abrams is unlikely to change his calling card — “Have arguments, will travel.”

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