If you want to read a book on surgery, would you want one written by an academic who never entered an operating theater? Or a book on how to hit that elusive knuckleball, by one who wrote from the cheap seats and never hit a major league pitch? How about a book on classroom education written by an education philosopher rather than someone who gets her hands dirty in the classroom on a daily basis?
You get the point. If you want to read about the First Amendment, you’d want the book written by a man whose name is virtually synonymous—Floyd Abrams. And that’s not hyperbole. As the great Edward Bennett Williams was “The Man To See” for anyone with high stakes in a criminal forum, Abrams is that “Man” when First Amendment principles are at stake, even on unpopular subjects.
Beginning with the Framers who debated, and carefully authored, the First Amendment, and viewing it through the prism of today, Abrams clearly takes great pride how America’s laws and courts, particularly the Supreme Court, have chosen to deal with those instances when free speech and freedom of the press are at stake. Indeed, Abrams tells us, First Amendment protection in the U.S. is so forceful and unique in the world stage (even Western Europe) that “virtually no foreign judgments [for libel] are now enforceable in the United States” because they do not meet our First Amendment standards.
Now, the flyer authored by the Yale University Press that accompanies a reviewer’s copy of the book refers to it as a “controversial look … at freedom of speech” in America. The succinctly written book, itself however, is not really controversial. The topic, on the other hand, certainly is and Abrams—by carefully tracing the Amendment’s drafting and evolution – provokes thought, especially at a time in history when just about anyone can, and does, tweet anything for the world to see, perhaps at 5:00 a.m. on a whim.
Do we really want editors or, perhaps more to the point, the internet “media” to decide what can be published, regardless of national security considerations? Should people be allowed, without consequence, to aggressively protest within a stone’s throw of a funeral for a Marine who honorably served his country, dying in combat? What about Nazis marching down Main Street in a community containing Holocaust survivors, swastikas raised high? Should journalists get away with publishing false stories about public figures as long as they do so without “actual malice”?
Through the many situations our courts have examined, Abrams explores just why freedom of speech and freedom of the press must permit people to voice their opinions, regardless of whether others find them objectionable, or even reprehensible. And given the unpopularity of many decisions allowing the press or individuals to speak about issues which may adversely affect national security, privacy or even the truth, we certainly want to hear the explanation—or is it the “defense”?—from the best the First Amendment bar has to offer.
Two particularly divisive matters, of which Abrams has intimate knowledge, are addressed at some length. Abrams represented The New York Times, when it decided to publish some, but not all, of what is now known as “The Pentagon Papers,” a 7,000-page “leak” of classified documents. The cache was shocking for its time (1971, if you can believe it), and the documents showed that the U.S. government deceived the public about its involvement in the Vietnam War. The Nixon Administration tried to restrain The Times (and The Washington Post) from continuing to publish the documents, alleging violation of the Espionage Act of 1917. Abrams, on the front lines, makes clear that the decision to publish (and what to withhold in the interest of national security) was fiercely debated within the paper, and was far from an easy call. The paper, and Abrams as its counsel, were called unpatriotic by many, yet the Supreme Court (6-3) set the standard: the government had failed to overcome the heavy presumption against prior restraint of the press ensured by the First Amendment. (Abrams actually gives us some inside baseball of how Judge Murray Gurfein, after ruling for The Times in the District Court, privately summoned Abrams and his partner to his chambers and, speaking “as a private citizen,” encouraged them to advise the Times to not publish certain of the Pentagon Papers as too dangerous to publish).
The other, more recent, highly controversial decision—one which I’m not sure all see as a First Amendment case—is Citizens United v. Federal Election Commission, in which Abrams represented Republican Senator (then Minority Leader) Mitch McConnell.The underlying facts addressed a conservative political group producing a documentary which was, essentially, a feature length advertisement against Secretary Hillary Clinton. Relying on the First Amendment’s promise of the right to free speech, including political expression, the Supreme Court’s 5-4 decision, unpopular in many quarters, held that the First Amendment applies to corporations as well as individuals, and that therefore, its speech could not be suppressed.
The fallout from Citizens United has been tremendous and although many may not agree with it, Abrams presents it within the historical perspective of First Amendment law. Keith Olbermann actually called Abrams a “quisling” for taking on the case, apparently not considering a lawyer’s duty when representing a client. Parenthetically, one not knowledgeable of the duty of one who practices law in the trenches might indeed, on the same basis, challenge any of us when we choose to take on an unpopular client or cause. When, some four decades from now Abrams’ obituary is published, you can count on Citizens United appearing alongside his more admired victories.
Abrams brings his personal insight into the subject he has thought about, and knows about, more than any of us. “The Soul of the First Amendment” is a significant book about one of our most important rights, one which we should never take for granted.