Floyd Abrams on Free Expression, Broadcast Regulation, WikiLeaks, Citizens United and SOPA

This is the sixth in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment.  Follow me @jonathanwpeters on Twitter. 

Floyd Abrams is a senior partner at Cahill Gordon & Reindel in New York City.  He has a national trial and appellate practice, and he specializes in First Amendment, intellectual property, insurance, public policy and regulatory issues.  Abrams has argued numerous times in the U.S. Supreme Court.  Among his cases are: New York Times Co. v. United States, Landmark Communications v. Virginia, Nebraska Press Association v. Stuart, and Citizens United v. Federal Election Commission, in which he appeared on behalf of Senator Mitch McConnell as amicus curiae.  He has taught at the Columbia Journalism School and the Yale Law School, where he helped to found the Floyd Abrams Institute for Freedom of Expression.  He is a member of the Academy of Arts and Sciences, and he has written widely for popular media, including The New York Times, The Wall Street Journal, and The Washington Post.  Abrams is the author of “Speaking Freely: Trials of the First Amendment.” 

What’s the most serious threat today to free expression?

I would say, to begin, that First Amendment law is in good shape, that there is a high level of protection for freedom of expression with the current Supreme Court. Although there are some cases with which I disagree, the Court has been highly solicitous of First Amendment interests. That said, there’s too much legislation and regulation adopted on the basis of content. One example would be the rights of broadcasters. They are relegated to a second level of protection, to being judged by standards that couldn’t survive First Amendment scrutiny if applied to newspapers, the Internet or other outlets.

One thing that troubles me is the willingness of too many people to be selective in their support for First Amendment norms, because of their political or ideological views. The First Amendment doesn’t work that way—its protections don’t vary according to whether the left or right will benefit from a particular case. The Nation magazine invited me to a forum in the late 1990s or early 2000s. Someone at the forum said, “The wrong people are winning First Amendment cases. What can we do about it?” My answer was, “Maybe you ought to change your political views to conform with your First Amendment views, rather than the other way around, trying to change the First Amendment to conform with your political views.

The Supreme Court this term will decide the case FCC v. Fox Television Stations, which examines the constitutionality of broadcast indecency regulation. What’s your take on that case? Have new media eroded the main bases of Pacifica?

I never thought the Pacifica case was correctly decided. But the one saving grace was that the FCC had made representations to the Court about how narrowly it would read a victory in that case. And the Commission kept its promise. Recently, however, it has deviated considerably in certain areas, including fleeting expletives and language that’s nowhere near “obscene.” My view is that even if Pacifica was defensible at the time it was decided, the explosion of new technology should cause it to be overturned. People have so many choices now—what to watch, what to listen to—that it seems unsustainable to relegate one medium to second-class status under the First Amendment. Even if you look at the purported basis of Pacifica, the pervasive nature of broadcasting, I find it hard to articulate a principled justification for picking out one medium and saying it’s much more pervasive in its nature and impact than all of the others.

How has your perspective on free expression changed over time?

It depends on how far back you go in my life. When I was in college, I wrote a senior thesis at Cornell urging the adoption of something like the English system, in which journalists and editors would be jailed for publishing potentially prejudicial information, like confessions and prior criminal records—unless they were introduced in court. I’ve come a long way since then. My legal views have remained generally consistent since I began representing the press, and certainly I favor the strengthening of protections for freedom of expression. I’ve had to address, from an ideological-jurisprudential point of view, cases that I consider very difficult: Protesters taking over a park, for example, don’t seem to me to be protected by the First Amendment, as opposed to demonstrating, marching, protesting, writing or speaking. I don’t think sleeping in a park is speech. There are areas where I make distinctions that other people might not make. Otherwise, my views of the First Amendment—its scope—have been relatively consistent.

Where I’ve a moved a bit is the potential of protected speech to harm people. I’m less inclined today to dismiss out-of-hand the potential dangers of speech. I’m more inclined to acknowledge the dangers, and generally I’ve concluded that they’re the price the First Amendment asks us to pay. So when WikiLeaks publishes a classified document identifying the 50 or 100 places around the world that the United States has deemed the most susceptible to terrorist attacks, ranging from a hospital in Denmark that creates anti-smallpox vaccines to a place where cable is laid for sensitive installations, my view is that the publication is dangerous and reckless and irresponsible. Of course, if that issue went to court, the government might well fail to prove that the harm caused by the publication is so real and imminent that it justifies a speech limitation. But I’m more inclined today to criticize the speaker in those circumstances, even though I think the speaker has the right to publish information like that.

Military prosecutors suggested in Manning’s preliminary hearing that Manning and Assange collaborated. What would that mean for Assange in terms of his First Amendment defenses if he were charged in the U.S.?

More importantly, perhaps, it would be very dangerous for the press and public if journalists could be held liable for some sort of conspiracy, for simply talking with a prospective source who is acting in a potentially unauthorized way. It’s precisely because WikiLeaks is (understandably enough) such an unattractive defendant that I’m particularly concerned about charges being filed against it and bad law being created. The identity and behavior of a defendant sometimes has an unavoidable impact on the law applied to it, and I fear that a prosecution of WikiLeaks could lead to very bad law, indeed.

Do we have an over-classification problem in the U.S.?

Undoubtedly. We’ve had it for a long time. Different administrations have taken different positions on classification. Clinton’s administration reversed many old classification rules, basically to say that the presumption is that things shouldn’t be classified. George W. Bush’s administration reversed that completely and explicitly. Obama’s administration has a mixed record, but his people are trying to limit the amount of material that’s classified. There’s just no doubt that a vast amount of material is classified because it’s convenient, sometimes to avoid criticism, but in any event, it’s classified with no real justification at all.

First Amendment lawyers often take heat because of the clients they represent—white supremacists, socialists, pornographers, and so on. But you’ve taken heat most recently because some of your clients have advanced corporate interests. You’ve said, for example, you were surprised not only by the critical reaction to Citizens United but also by the critical reaction to your involvement in the case. What do you make of the criticism?

First, it was something of a surprise to me that so much frenzied criticism came from scholars, as opposed to the public at large. The public usually isn’t receptive to the articulation of First Amendment rights. After all, the speech cases that get to court and make headlines are the ones in which someone has decided that the speech is offensive or dangerous, that it’s worthy of restriction or punishment. What surprised me was that an awful lot of academics, responding to Citizens United, have behaved in a manner bordering on frenzy. I was very surprised by criticism of the idea that corporations should receive any First Amendment protection at all, as if the entities I’ve represented through the years—the New York Times, NBC and CBS—weren’t corporations.

I’ve been surprised, too, by the degree to which the Citizens United opinion has been treated as if it had no roots at all, as if no prior cases indicated that the speech at issue should be protected. And most of all, I’ve been shocked at the notion that people who claim to defend the First Amendment would acquiesce in the idea that a politically oriented group might be criminally sanctioned for producing a documentary criticizing a candidate for the presidency of the United States.

You told the Wall Street Journal last year that “the First Amendment for many years played the role, when it triumphed in the courts, of protecting the speech of people who tended to be on the left.” And you said that “what’s changed is that conservatives found some causes which they have used to vindicate genuine First Amendment rights.”

Yes, the First Amendment is counterintuitive. Justice Holmes was right when he said it was “perfectly logical” for people to think that when others say things with which they disagree that they should be shut up. Holmes, of course, then concluded that they should not be shut up, because of the First Amendment. But that kind of thinking lurks in the background when people consider speech that ostensibly does harm. They believe, instinctively, that there must be a way to do something about the speech.

In the Citizens United case, we had a situation that I described online in the Yale Law Journal. I began by quoting Elena Kagan, as solicitor general, who said she thought the government made a strong factual case, in congressional hearings and elsewhere, about the dangers of money and politics. And at the same time, she said there was a very strong First Amendment argument that political speech, such as the speech at issue, should be protected. She put it very well, I thought. But too few scholars approached the case in so thoughtful a manner.

What surprises me are the people, many of whom should know better, advancing First Amendment theories that would put at risk a good amount of political speech as we know it, to the extent the speech was uttered by corporate or union entities. And in turn, to protect the press, those same people hope the Supreme Court will say, “Well, under the Press Clause of the First Amendment, the companies publishing newspapers and operating broadcast outlets should be treated differently.” That’s just not going to happen. The votes aren’t there for that argument, and they never have been. So it’s disturbing that many people seem willing to risk the core of the First Amendment, the defense of political speech.

You represent the Directors Guild, the Motion Picture Association of America and other entertainment unions. You wrote in December in an op-ed for the Washington Post that “the proposition that efforts to enforce the Copyright Act on the Internet amount to some sort of censorship … trivializes the pain inflicted by actual censorship … in repressive states throughout the world.” What would you say, though, to someone like Jack Balkin, who has said of the SOPA: “If you build censorship requirements into the infrastructure of free expression, you shouldn’t be surprised if governments start using them more expansively and more frequently.”  Does that concern you?

I disagree with him. We’ve never used the word censorship to describe the enforcement of copyright law. There are situations—I’ve been involved in some—in which there’s tension between copyright law and the First Amendment (e.g., the ease with which prior restraints have been available under copyright law). But with respect to SOPA, much of the objection to it was rooted in the idea that the Internet is so precious from a free-expression perspective that literally anything goes—that if you start addressing problems that the law otherwise has addressed, you might interfere with the Internet. So I think Balkin is wrong, at least in the level of his concern. And my own view is that although there are technological issues, of which I am by no means an expert, the basic proposition that we should take steps to shut down entities that are nothing but infringing does not threaten the First Amendment. That’s not censorship.

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