ABFFE Pick! August 2013

 

FRIEND OF THE COURT

Floyd Abrams

 

Yale University Press, $32.50, 488 pages 978-0-300-19087-8

 

 

 

 

Floyd Abrams has participated in many important First Amendment cases during the past half-century.  FRIEND OF THE COURT is a collection of Abrams’ speeches, essays and articles since 1978. Highlights include the Pentagon Papers, Citizens United and Brooklyn Museum cases.  

FLOYD ABRAMS is a Senior Partner in Cahill Gordon & Reindel LLP and has litigated high-profile First Amendment cases for more than 40 years.  He has taught law at Columbia School of Journalism, Yale Law School and Columbia Law School.  In addition to FRIEND OF THE COURT,  Mr. Abrams has written several other books, including SPEAKING FREELY, TRIALS OF THE FIRST AMENDMENT.                                             

 

Q&A with Floyd Abrams

ABFFE: Your first chapter includes a debate with Catherine A. MacKinnon, a strong advocate of legal measures to curb "pornography” as a way of enhancing the civil liberties of women.  What was wrong with her approach?

Floyd: I don’t believe that civil liberties are advanced by limiting civil liberties, especially those rights protected by the First Amendment. The legislation that Professor MacKinnon had drafted was so sweepingly overbroad in scope that the federal court of appeals that held it violated the First Amendment observed that it could apply to anything from hard core films to the collected works of James Joyce or D.H. Lawrence. That was not a drafting problem; it stems from the inherent impossibility of drafting legislation that would sanction ”bad” speech while leaving "good” speech untouched. And from our likely disagreement about what speech should be on the list of imperiled expression and what not. My bottom line is this: let’s punish bad behavior, not speech of which we disapprove.

ABFFE:  Who do you think were some of the best and worst presidents when it comes to respect for the First Amendment??

 

Floyd: Bad First Amendment Presidents include some great men—John Adams for supporting and enforcing the Alien and Sedition Acts and Theodore Roosevelt for trying to use the courts to jail the celebrated publisher Joseph Pulitzer for publishing articles about the construction of the Panama Canal that Roosevelt thought were out of bounds. Some less than great figures—Richard Nixon, for one—would also make any list of First Amendment transgressors. The most difficult President to pass judgment on was our greatest—Abraham Lincoln, who, in the most threatening days in our nation’s history, caused journalists to be jailed in northern and border states, who were viewed as troublingly unsupportive of the civil war. That’s worth a book in itself!

 

 

 

Floyd: When national security is threatened, civil liberties routinely are as well and it is all the more important that sources who wish to speak but are fearful of disclosing their identities feel free to speak with journalists. That does not mean that all potential revealers of secrets serve the national interest by doing so. It does mean that it is vital that we keep lines of communication open between those who dissent and those who can publicize the views of and information known by dissenters. This is a delicate area but it is one that leads me to conclude that only if journalists can promise confidential sources that their identities will be kept secret will the nation remain both informed and free.

 

 

Floyd: I believe the current Supreme Court has played a critical role in protecting speech and that it deserves more praise than it has thus far received  for doing so. To offer two examples, in the past few years, and by overwhelming majorities, the Court has protected the free speech rights of protesters who have stood within sight of churches in which the deaths of American soldiers were being mourned with despicable signs denouncing them and the rights of individuals who filmed, for profit, horrible (and illegal) acts of animal torture. Such speech is appalling. That the Supreme Court has concluded that such speech deserves First Amendment protection seems to me magnificent.