Floyd Abrams: Friend of the First Amendment
A few weeks ago, I visited a restaurant where an employee acted very rudely towards me. Fuming, I went home and wrote a scathing Yelp review about the establishment. Satisfied that justice had been served and that the entire online community could be made aware of the horrible service I received, I triumphantly hit the “submit” button with a simple click of my mouse.
Then fear suddenly plagued me. What if I ruined the business? Could they sue me for libel? I wracked my brain frantically for fragments of court cases from a Journalism law course I took a few years ago.
Then I began to relax. These review sites allow people to exercise their First Amendment right: freedom of speech. If I was angry or unsatisfied about the service I received, I could vocalize my opinion without fear of retribution.
On a much larger scale than my amateur restaurant reviews, Floyd Abrams provides an inspiring and controversial collection of his writings addressing key First Amendment issues of the past four decades in his new book, Friend of the Court: On the Front Lines with the First Amendment. Abrams raises an important question for First Amendment defenders: Can you stand in favor of free speech even when that speech pains you ideologically?
The owners of the restaurant I reviled probably wish I weren’t able to make public the offenses of their staff, but I have the right to state my opinion of their establishment. Sometimes, however, published opinion can distort the public’s perception of the truth. Abrams dedicates a large part of his book to the controversial Citizens United case, which dealt with unfavorable speech in conflict with national elections. The court ruled that a documentary bashing leading Democratic candidate Hillary Clinton could be aired right before the 2008 primary, going against previous legislature that prohibited outside parties from running ads referring to a candidate up to sixty days before an election. The former law was designed to prevent corporations from spending money to potentially corrupt elections. Abrams, whom Kirkus Reviews refers to as a “First Amendment absolutist”, supported the Citizens United ruling, arguing that it protected the documentary producers’ freedom of speech. In a recent Los Angeles Times interview with Patt Morrison, Abrams called the First Amendment “counterintuitive,” saying that the reason many Americans feel uncertain about what constitutes free speech is because “it’s tough to accept that we should let people say things that are dangerous or harmful.”
Thanks to the many dissemination possibilities provided by the Internet and outlets such as WikiLeaks, dangerous or harmful speech can enter the public arena much easier than ever before. Sometimes published content can threaten individual or national security, a problem that began before the rise of the Internet with the precedential Pentagon Papers case. Daniel Ellsberg, a former government employee, made classified documents relating to the Vietnam War available to the New York Times, who published the information. The Justice Department obtained a court injunction against further publication on grounds of national security; however, the Supreme Court ruled that the constitutional guarantee of a free press overrode the injunction.
Friend of the Court arrives at an important time for First Amendment issues; on July 31, 2013, the Obama Administration released formerly classified documents outlining the NSA’s program of collecting domestic phone calls. Such programs were previously leaked by former NSA contractor Edward Snowden to The Guardian. Snowden has often been compared to Ellsberg of the Pentagon Papers case. Abrams, who defended The Times in the infamous 1971 trial, has been consulted for his opinion on the modern-day Ellsberg situation. In the aforementioned LA Times interview, Abrams condemns people like Snowden and Julian Assange of WikiLeaks, who “release so much information that could do harm to national security that I think they shouldn’t be viewed as heroic but as, often, reckless.” Despite his stringent advocating of First Amendment rights, he warns against those who take the risks of disclosure too lightly. As former Yale Law professor Alexander Bickel opines in the introduction to Abrams’ book: “Not everything is fit to print.”
Friend of the Court will be an important read as the NSA debate continues to roil and as we continue to exist in the age of the internet, where virtually everyone can become a publisher. From average citizens like me who rant over bad restaurant service, to major newspapers exploiting government secrets, Abrams’ experiences from his legal career will make any American question what exactly the First Amendment guarantees, and how far we should go to uphold it.
Olivia Gall recently graduated from Fordham University with a degree in English and Communication & Media Studies. She is a summer intern in the Yale University Press Sales Department.