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 […]