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Speaking Freely by Floyd Abrams (Viking, 336 pages, $25.95) Outside their specialty, First Amendment lawyers tend to be anonymous. Hayden Covington is not exactly a household name, yet he argued 18 free speech cases in the U.S. Supreme Court between 1939 and 1953, mostly for the Jehovah’s Witnesses, with six cases decided in 1943 alone. Stanley Fleishman argued nine First Amendment cases before the Court from the late 1950s through the mid-1970s, all involving the law of obscenity, while Robert Carter argued seven civil rights cases from 1958 through the mid-1960s. In the 1980s and ’90s, the great Bruce Ennis argued seven Supreme Court cases on a diverse range of free speech issues, including the landmark Reno v. ACLU, which extended full First Amendment protection to the Internet. But among all of these luminaries, Floyd Abrams stands apart in the field of First Amendment law. This is not because he is the only practitioner in this particular specialty. Far from it. But he easily is the best-known First Amendment lawyer in America. If you asked most people who have some familiarity with the profession to come up with the name of a First Amendment lawyer, they probably would mention Abrams. But if you asked for a second name, most would be stuck for an answer. Without the whiff of self-aggrandizement that infects many memoirs, Abrams’ Speaking Freely makes clear why this is so. It traces a remarkable career in First Amendment law beginning with a chapter on the Pentagon Papers case and concluding with a discussion of controversies “ripped from the headlines,” including Abrams’ current defense of journalists seeking to preserve the confidentiality of their sources. “As I conclude this book in late 2004,” Abrams writes, “two clients of mine � Judith Miller of the New York Times and Matt Cooper of Time magazine � have been ordered jailed in Washington, D.C. because they refused to reveal the identities of government officials who provided them with information in confidence.” In this regard, the book comes full circle, for Abrams notes that his representation of the Times in the Pentagon Papers case arose from an amicus brief he was writing at the time with his former teacher, professor Alexander Bickel of Yale Law School, for a group of media organizations in Branzburg v. Hayes, the Supreme Court’s previous decision on source confidentiality. Written for an intelligent lay audience and not necessarily for free speech specialists or other lawyers, the book provides a very readable account of some of Abrams’ most famous First Amendment cases. The eight cases chronicled in Speaking Freely include not just matters he argued in the Supreme Court or cases in which he prevailed. Rather, the book covers those cases the author believes best illustrate problems presented by the First Amendment and are the most interesting. A quick perusal of the table of contents supports this judgment. The nine chapters address the issue of national security versus freedom of expression ( United States v. New York Times Co.), other prior restraint cases ( Landmark Communications Inc. v. Virginia and Smith v. Daily Mail Publishing Co.), defamation ( Newton v. National Broadcasting Co., Karaduman v. Newsday Inc., and Lasky v. American Broadcasting Co.), censorship of the arts ( Brooklyn Institute of the Arts and Sciences v. City of New York), and political campaign regulation ( McConnell v. Federal Election Commission). Other of his cases might profitably have been included. Abrams’ account succeeds on several levels. It is in part the story of an intellectual journey by a student who wrote a senior thesis proposing that U.S. law should outlaw publication of information that could interfere with a defendant’s right to a fair trial, to a full-fledged “First Amendment voluptuary” (in his words). It also is a description of historic cases from inside the advocate’s mind, often providing blow-by-blow accounts of oral arguments and cross-examinations. And it is a book of ideas, outlining the importance of free expression to the democratic scheme and illustrating the challenges involved in preserving it. RIGHT PLACE, RIGHT TIME One aspect of the book may be of particular interest to young lawyers who wonder how they might emulate such a lustrous career. In this regard, Abrams’ account of how he came to represent The New York Times in the Pentagon Papers case explains that such life-changing developments can arise from being in the right place at the right time in combination with talent, hard work, and, yes, a little luck. In this case, the Times’ report of the leaked Pentagon Papers was published on June 13, 1971 � the day before a luncheon in which Abrams and Bickel presented their draft amicus brief in Branzburg to their assembled media clients (which included the Times). Conversation naturally gravitated toward the Times’ publication, with Abrams and Bickel offering their opinions of a potential confrontation with the government “[s]upremely confident of our views, as only lawyers without clients are.” Abrams, at this point, did not yet represent the Times separately. But that quickly changed. He was awakened after one o’clock the next morning by a call from James Goodale, the Times’ general counsel, informing him that the Justice Department had demanded that the newspaper cease publication of the Pentagon Papers and that Lord, Day & Lord, the Times’ outside counsel since 1929, was refusing to represent it in the matter. Would Abrams take the case? (Is this a trick question?) Abrams quickly phoned Bickel at his hotel, waking him, and the two went immediately to Cahill Gordon’s offices to work through the night. The rest, as they say, is history, with the Supreme Court ultimately voting 6-3 to invalidate the government’s attempt at prior restraint on June 30, 1971, nine days before Abrams’ 35th birthday. Thus, in just over two weeks’ time, this young lawyer’s career was transformed. Such personal accounts from inside landmark cases bring Speaking Freely to life. Abrams describes the all-nighters, the strategic choices made, and the anxieties that accompany high-stakes litigation. And his account reinforces the ever-present concern among free speech advocates that far more is at stake than their clients’ very important interests. Constitutional principles that go to the core of the American system of government also hang in the balance. Those who wonder what it’s like to argue a case in front of the U.S. Supreme Court will get a good sense of the experience. Abrams describes it as “a strangely transformed sort of baseball game” in which the justices are not just the nine fielders but are all pitchers as well. Each hurls questions at his or her own pace, sometimes one after another, sometimes nearly simultaneously. And here’s the kicker: Each is also an umpire, so that “however wild their pitches may be, they must be treated as strikes.” The lawyer/batter must hit all the pitches cleanly “and if he or she does not, the game may be lost on a single pitch alone.” No pressure there. Abrams quotes from oral argument transcripts in key cases and stops the action to describe what he was thinking before answering particular questions or to explain the strategic choices that anticipated the query (or failed to do so). He uses the same technique in describing depositions and cross-examinations in the accounts of his various trials. It makes his storytelling at once more vivid for the general reader but also useful for lawyers who may be looking to pick up a few pointers. CONFRONTING A BULLY At least two important lessons about freedom of expression emerge from Abrams’ stories. The first is that it often requires great courage to stand on principle when tremendous political pressure and the weight of public opinion are brought to bear. The key illustration of this point is the Brooklyn Museum case, in which New York Mayor Rudolph Giuliani (before he was canonized as a “secular saint” post-9/11) first cut off city funding and then threatened to evict the museum from its premises altogether in retaliation for an exhibit the mayor deemed “blasphemous.” Giuliani, a former U.S. attorney and Harvard Law School graduate, certainly knew better, Abrams notes, but the desire to grandstand won out, and he was joined in his denunciation of the museum by both the U.S. Senate and House of Representatives. The case provided an object lesson of what happens when public officials either forget that the Constitution is the law the government must obey or choose to ignore that inconvenient fact. Nevertheless, despite the intense pressure from both federal and local politicians, the museum board engaged Abrams to file suit in what he called “an impressive act of defiance.” To up the ante, the museum sought punitive damages from Giuliani in his personal capacity for acting “maliciously and with intent to violate or with reckless or callous disregard for plaintiff’s rights.” The claim was not a stretch, given the mayor’s dismal track record on free-expression matters. Various actions by his administration had spawned 35 successful First Amendment suits against the city and led to an unprecedented rebuke from the 2nd Circuit. Giuliani nonetheless was incensed at being sued personally in the Brooklyn Museum case, and an attorney for the city even approached Abrams privately asking him to drop the claim, lest the mayor become even more upset at the museum. “With the greatest of pleasure,” Abrams recalls, “I respectfully declined to do so.” The museum won a complete victory, obtaining a district court order enjoining the city’s actions and threats. In the course of the opinion, the city and the mayor received what Abrams describes as a “verbal spanking.” But Giuliani, in the type of reaction that has become tiresomely familiar among politicians who distrust a constitutional design that includes judicial review, denounced the ruling as “intellectually dishonest” and attacked the judge personally as “totally out of control.” Of course, once you get past the politically charged invective, the moral of the story is that the only way to deal with a bully � either grand or petty � is to stand up to him. Another important lesson from Speaking Freely is that a First Amendment lawyer’s work is never done. Beginning with Abrams’ work on the amicus brief in Branzburg and ending with his current defense of Judith Miller and Matt Cooper, the book reminds us that the price of liberty is eternal vigilance. And it does not shy away from the bumps in the path. While it begins with a high point � the Pentagon Papers victory � it ends with the Supreme Court’s unfortunate decision in McConnell v. FEC, which upheld the McCain-Feingold campaign speech regulation law. One consolation in this is that Abrams, like others in his chosen field, remains a happy warrior. In the end, the book is a love story, detailing the author’s three-and-a-half-decade romance with the First Amendment. Abrams sets forth the background and importance of free expression, then explains by example the hard work and sacrifice involved in putting such ideals into practice. Speaking Freely also conveys the sense of excitement of being involved in such immense issues. He writes of that first late-night call from The New York Times: “It was all like a dream � the most cheering, fulfilling, and delightful dream imaginable.” Amen, brother. Robert Corn-Revere practices First Amendment law and is a partner at Davis Wright Tremaine in Washington, D.C.

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