Tag Archives | Free Speech

A Few Words About “Friend of the Court”

Floyd Abrams was invited to say a few words about his latest book Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013). His comments are set forth below.

When one tries to determine which of his articles, speeches, testimony, letters, reviews and the like over a 45-year period are worth publishing in book form, the choices are not easy. It’s not that there are so many imperishable morsels; passing the ugly question of whether anything is worth publishing, there remains the far more prosaic issue of which issues remain live ones, and which positions are worth rearguing.

I had, for example, been dubious about whether to include my 2005 testimony before the Senate Committee on the Judiciary in favor of adopting a federal shield law for journalists and more dubious still about including a 1979 speech (the oldest offering in the book) about the same subject. But I thought the issue, rather quiescent in the past few years, could well resurface in the years to come — and then came the Department of Justice with its breathtakingly subpoenas to the telephone companies that serve Associated Press. I cannot offer thanks, but I am appreciative.

So, too, with privacy issues. The conflicting claims of disclosure and privacy have led to far less litigation than I had expected. I decided, nonetheless, to include a speech I gave that is quite critical of the most celebrated and cited law review article ever written, the classic Brandeis-Warren paean to privacy published in the Harvard Law Review in 1890. The renewed discussion, after the terrorist explosions at the Boston Marathon this year, about the amount of cameras that film so many of our activities, has led to renewed discussion of various aspects of privacy and I am pleased [...]

Continue Reading 0

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 [...]

Continue Reading 0

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 [...]

Continue Reading 0

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 [...]

Continue Reading 0

Private Religious Colleges and Free Speech

I have been guest blogging this week, and Eugene asked me to reserve some of my posts to respond to reader comments. From the moment that Eugene announced I would be posting, a few commenters have decided that the single most important thing FIRE should actually be fighting is the scourge of censorship-happy Christian colleges. I confess, as I have before, to just being really tired of this argument, as we’ve explained FIRE’s stance on private colleges so many times. (Check out the following link, and most recently my piece in RealClearReligion.)

It’s really pretty simple, and people familiar with law and legal principles should be able to understand our stance. Public colleges and universities are, of course, legally bound by the First Amendment. Private colleges are not. However, private institutions should be held accountable for how they present themselves and for the contractual promises they make to students. The vast majority of private colleges promise free speech in rather glowing language found in student handbooks, codes of conduct, and similar materials. But out of the top few hundred colleges and universities in the country, a small minority do not. FIRE has concluded that it makes little sense in our pluralistic democracy to go after private colleges that have policies making it clear that the institution places other values (for example, their religious or ideological identity) above the value of freedom of speech.

Pepperdine University is an example of a school with a very powerful statement that should serve as a warning to students that its religious identity takes priority. Pepperdine policy states, for instance, that “[i]t is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” The [...]

Continue Reading 0

Only a Few Examples of Censorship on Campus?

A few commenters on my latest post for The Volokh Conspiracy have been riffing on the theme that the Foundation for Individual Rights in Education (FIRE, where I work) is only able to show a few examples of censorship on campus, and therefore it must not be that big of a problem.

Here’s my erudite response: hogwash.

First of all, it takes a very rare brave and/or motivated student to even bother fighting back against his or her college or university administration. Nonetheless, FIRE, which is not exactly a household name, receives about 450 requests for help every year from students or faculty members who believe their free speech or due process rights have been violated. Because of our size, we don’t actually have the capacity to handle all of the case submissions we receive. Some cases we refer to attorneys, while other cases are settled in private. The cases that we talk about publicly are only those about which we have been given permission to speak. But even with all these limitations, here’s a short list of just some of the cases we have fought over the past few years:

Continue Reading 0