Author Archive | Prof. Ronald Collins, guest-blogging

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 [...]

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Floyd Abrams & the First Amendment: Enter Alex Bickel

Sometimes Fortuna deals a hand that forever changes the arc of one’s life. And so it was when Floyd Abrams met a remarkable man from Romania.

After graduating from Cornell in 1956, Floyd Abrams ventured to New Haven to study law at Yale Law School, home of many renowned constitutional law scholars. Once there, Abrams was assigned (alphabetically) to a first-term constitutional law course with Professor Alex Bickel, who had just begun to teach at the law school. Abrams also had advanced courses in constitutional law from Thomas Emerson (a prominent First Amendment scholar), and Fred Rodell (a noted proponent of Legal Realism). But the one who left an indelible impression on him was the Romanian man — Alex Bickel.

Alexander Mordecai Bickel (1924-1974) taught at Yale Law School from 1956 until his death. A respected constitutionalist, Bickel had clerked for Justice Felix Frankfurter and had also prepared a historical memorandum in Brown v. Board of Education. Bickel’s immense influence on Abrams extended beyond the classroom and into the courtroom where, in later years, the two worked alongside one another in important First Amendment cases, this though some of their views on the general subject could be quite different. That said, and despite all his liberal and libertarian First Amendment credentials, there is a residue of Bickel moderation in Abrams, a cautious side leery of starry-eyed approaches to constitutional law.

“There are no absolutes that a complex society can live with in its law.” That was Bickel’s mantra. He was nothing if not categorical in his claim that treating “law as language . . . merely obscures the actual process of decision.” Even so, it is well to keep in mind what the Court declared in the Pentagon Papers Case (1971), the case that Professor Bickel argued (with young [...]

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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 [...]

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Floyd Abrams & the First Amendment

Ronald Collins  May 13, 2013

As a longtime reader of this blog I was quite pleased when Eugene invited me to write a few words about my new book and also about Floyd Abrams’s forthcoming book, which will be out very soon. My book is titled Nuanced Absolutism: Floyd Abrams and the First Amendment. Let me say a little about it.

Unlike most books or articles about the First Amendment, Nuanced Absolutism is not about what judges or scholars say about free speech. Rather, it is about what Mr. Abrams has done as a lawyer litigating in this field. To the best of my knowledge, the book’s lawyer-centric focus on the First Amendment is the first of its kind in this field of law.

Incredibly, for all that has been written about the First Amendment, very little attention has been devoted to some of the most notable attorneys who have litigated major free expression cases — lawyers such as Walter Pollak (Gitlow v. New York and (Whitney v. California), Hayden C. Covington (Cantwell v. Connecticut), Ephraim London (Joseph Burstyn, Inc. v. Wilson), Robert L. Carter (NAACP v. Alabama), Stanley Fleishman (Alberts v. California ), and Bruce Ennis (Reno v. ACLU), among others. With Nuanced Absolutism I set out to change that and took as my subject the most noted First Amendment lawyer of our time, Floyd Abrams.

The central aim of Nuanced Absolutism is to inform readers of the role played by lawyers in shaping our law, especially our supreme law. By way of an intellectual history and biographical approach to my subject, I set out to explain how Mr. Abrams’s nuanced absolutism operates in the context of some of the appellate cases he has litigated, the [...]

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