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 causes he has defended, and the positions he has taken in public. In all of these ways and others, it is a biographical sketch and case study of one man’s life in the law, the law of the First Amendment.
So what is “nuanced absolutism”? It is a term I coined to explain Mr. Abrams’s view of the First Amendment and how he has implemented that view in the various cases he has argued over the years. It is a way of thinking about the First Amendment. Let me emphasize what it is not. It is not the kind of First Amendment absolutism championed by the likes of Justices Hugo Black and William O. Douglas. The problem with that kind of absolutism is that it is too broad and thus lacks nuance.

By contrast, nuanced absolutism posits that there are certain kinds of speech, when said by certain persons, at certain times, and in certain contexts that should be absolutely protected absent a specific, real, and truly overriding governmental interest. And even then, the government must employ a means narrowly tailored to serve that particular interest.

In the book (and in an article I just published in the Albany Law Review), I distinguish between the kind of nuanced absolutism championed by Mr. Abrams and that brand of limited absolutism embraced by the Roberts Court in certain cases. To be sure, they are similar, but they are also different. For my conceptual money, the problem with the so-called contextualists (e.g. Justice Stephen Breyer) is that too often they “balance” away First Amendment rights and thus encourage government disrespect for free speech. By stark contrast, I think Justice William Brennan had it right in Sullivan when he offered up the First Amendment as a robust right.

True, time tends to move all of us along a spectrum. Then again, for decades now the First Amendment has been gaining doctrinal and cultural momentum, thanks in important part to the work of First Amendment lawyers such as Floyd Abrams, Robert Corn-Revere, Lee Levine, Paul Smith, Bruce Johnson, and Patricia Millett, among others. Of course, there are some notable and unfortunate exceptions where the Roberts Court has, I think, been niggardly in its treatment of the First Amendment — cases such as Garcetti v. Ceballos (2006) and Holder v. Humanitarian Law Project (2010).

By way of a taste of the biographical side of Nuanced Absolutism, let me add a few words about one of Mr. Abrams’s undergraduate teachers. During his years at Cornell, which was also the era of McCarthyism, Abrams studied constitutional law under, and took an independent study course from, Professor Robert E. Cushman (1889-1969). Cushman was a famed political scientist who wrote widely on constitutional law and civil liberties. (Ruth Bader Ginsburg, who also attended Cornell, was a student of and research assistant for Cushman.)

Professor Cushman was a particularly strong defender of free expression, even in wartime, as the following quote from a 1941 speech he gave reveals: “The question we face now is whether democratic governments can survive. Can Great Britain and America defeat the forces of Hitlerism? And if they can, will they still be democracies? Or can success in this life and death struggle be won only by policies and methods so brutal and ruthless that democracy as we now know it becomes one of the casualties of war. Can we beat Germany without destroying the civil liberties of our people, which are part of the democratic tradition?”
Those words left a lasting impression on the young student. Soon enough he met another man, Alex Bickel, who likewise helped shape his views on law and free speech in America. Not surprisingly, Floyd Abrams’s next book, Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013), is dedicated to the memory of those two scholars.

I will say more about Nuanced Absolutism and Friend of the Court in my next posts.