... it is really important that we protect First Amendment rights of people no matter what side of the line they are on. First Amendment Attorney Floyd Abrams Talks with CFIF’s Corporate Counsel About Three Decades of Free Speech

Noted lawyer Floyd Abrams recently appeared on "Your Turn — Meeting Nonsense with Common Sense," hosted by the Center for Individual Freedom’s Corporate Counsel, Renee Giachino, to discuss his new book Speaking Freely that recounts his career-long defense of the First Amendment. The program aired on WEBY 1330AM Northwest Florida’s Talk Radio.

What follows are excerpts from the interview…

GIACHINO: I would like to welcome to the program Mr. Floyd Abrams. Mr. Abrams has been on the front line of America’s fight for uncensored expression for more than thirty years. He is a partner at the law firm of Cahill, Gordon & Reindel in New York City. He has been described by Senator Daniel Patrick Moynihan as the "most significant First Amendment lawyer of our age." Mr. Abrams is currently the William J. Brennan Visiting Professor at the Columbia University Graduate School of Journalism.

He joins us today on "Your Turn" to talk about his recently released book, Speaking Freely: Trials of the First Amendment.

Are you there Mr. Abrams?

ABRAMS: I sure am. Thank you very much.

GIACHINO: Thank you very much for joining us. I really enjoyed the book and think it is a wonderful history book about the First Amendment over the last thirty or more years. It seems that you have been involved in just about every big case before the Supreme Court dealing with the First Amendment. It is our pleasure to have you on the program.

ABRAMS: Thank you.

GIACHINO: In the book, you talk about eight of the most significant cases of your career — actually maybe not even the most significant, but you note that you selected them for various reasons. If you had to pick one which you are most proud of, would you be able to do that and which one would it be?

ABRAMS: Well, I think I would say that the Pentagon Papers case of 1971 — in which the government tried to block the The New York Times and The Washington Post and other newspapers from publishing papers that they obtained from a secret study of how we got involved in the war in Vietnam — that is probably the most important case.

My role in it was not as central as it was in some of the later cases considering I was younger then and I was playing a role of co-counsel on the case. But it is probably the most important case because I really do think that if we had lost that case we would really live in a country that would be really quite different because then the government would be able to go to court with respect to newspaper articles, broadcast pieces and the like that they thought were bad or harmful or even against the government and try to block them. And the government understands — every government, every administration, both parties, understands — that that power they just don’t have.

GIACHINO: You have been on the front lines of the fight for the First Amendment for three, and really almost four decades now. Do you think our First Amendment rights are more secure today than when you began?

ABRAMS: You know in some ways they are more secure and, in part, because when I began we did not really have a lot of First Amendment law. It is really surprising to think of it this way, but a lot of the law — most of the law that relates to the First Amendment freedom of the press in America — is really within living memory; it is within the last quarter century or thirty years. And a lot of that law has turned out to be very, very protective of the press and the public’s right to know. I think we have some serious problems now, but, if you look back over the last thirty or forty years that my book deals with, I think we are in better shape now than we would have been if all of those cases had not come down.

GIACHINO: The book, Speaking Freely: Trials of the First Amendment, what was your motivation for writing this book?

ABRAMS: There were a few things. One is that I don’t think people really — and I wrote it, let me say, not primarily for lawyers, but I do hope that lawyers will read it — but I really did try to write it so that an educated public that cares about issues like this doesn’t have to be a lawyer and can read it and understand it. And I thought that one of the things that we were losing sight of is the basic reasons that we do protect free speech and freedom of the press and the essentiality and centrality in our lives of really giving broad protection to freedom of speech and freedom of the press in America. I thought I could do that by telling stories of some of the cases that established those principles on a real life on the ground basis.

GIACHINO: In the book I think you go to great lengths — and I found it very interesting — to divulge information about your strategies as a lawyer arguing some of the most important First Amendment cases before our High Court. I’m sure the book will be a must read for any lawyer coming opposite you in your next case. Did any of your lawyer friends caution you about writing such a tell-all book?

ABRAMS: Well, I did not really ask them. I asked myself, and I decided that these are not secrets in the sense that once you know what the strategy was you’ll be able next time to feed it. It’s not like learning how to hit a curve ball in baseball. It just seemed to me useful and interesting, I hope, in understanding how the legal system works by explaining the thoughts of a lawyer — those that work and those that did not work — the thoughts of a lawyer on the line and in the middle of an argument and trying to answer a question so that you can avoid some questions and trying to win his cases.

I just had the sense that at least the books that I had read about law just didn’t really have enough of that. I mean they had a lot of lawyers saying how wonderful they were and how they won all their cases, but it seemed to me that a somewhat more candid view — where I really try at least to come back and answer the question as to whether that was really the best way to do that and was I really thinking straight and how did my opponents behave and how did the judges behave — was needed. Most of the books I had read had not done that.

GIACHINO: And I want to make sure that the audience really understands that this is not just you patting yourself on your back for having taken on some of the most important — rather landmark — cases in First Amendment law before our Supreme Court, because you highlight cases as well that you lost.

ABRAMS: I do, I do. I have lost some. I am really impressed by lawyers who write books and tell us that they never lost a case. Most lawyers who have never lost a case have not had enough hard cases. But there are very difficult cases out there. And I really believe that a lawyer — no matter how good — if he or she is really worth their weight in salt, they will lose some cases because, after all, it is not really one of those secretive things that not everything is decided by who your lawyer is. It has something to do with the facts and the law and who the judges are. So I think lawyers sometimes exaggerate their role in winning and losing. Lawyers do have a role, and a major role, but they’re not the only players in this game.

GIACHINO: Along those lines then, have you ever taken a case simply because you felt compelled because it was best for the First Amendment — maybe you didn’t care too much for the party you were representing or the facts of the case, but the First Amendment needed an advocate?

ABRAMS: Yes, I have done that. I can’t — I still owe a duty of loyalty to my clients and former clients, so I cannot specify which clients I did not especially find congenial, but the cause was the same. I think that it is important for people to understand that whether a good-guy or a bad-guy wins a case is less important than what the law is that the case results in. So sometimes the facts are good and sometimes the facts are bad, the important thing from the point of view of a principle as broad and important as freedom of speech is that the courts articulate and set forth in a very protective way what those principles are. And that is done regardless of whether or not a particular client behaved well or badly.

GIACHINO: When we talk about freedom of speech, some argue that the U.S. Constitution guarantees citizens a right to free speech to freely speak their minds no matter the issue or situation. Do you think the First Amendment can and should be read that broadly?

ABRAMS: I don’t think it should be read in the word we lawyers use — that is absolutely. That is to say there are some circumstances in which the First Amendment interest comes up against another interest that is really important and in which we have to make a decision in a particular case as to which is more important. After all, we do allow people who have had false things said about them to bring lawsuits and sometimes win them. But we make sure that freedom of the press and freedom of speech are protected by establishing rules which make it hard for people to win these cases. When a public figure — a mayor or a congressman or union leader — brings a lawsuit, he really has to show that what was said really wasn’t true but also that the publication or person saying it knew or suspected that it was not true. No other country in the world gives protection like that, but it is not absolute protection. People sometimes meet that high burden and win libel suits, and in those cases I think they ought to win.

GIACHINO: Some folks try desperately to pigeon-hole every important issue today into some partisan political cubby. I think it is impossible to do that with the First Amendment, however, and your book proves it. In the book, you highlight the battles you have taken on against adversaries as diverse as Richard Nixon, Wayne Newton, and Rudy Giuliani, and write about allies as unlikely as Kenneth Starr and Senator Mitch McConnell. Don’t you agree that issues of the First Amendment are neither conservative nor liberal?

ABRAMS: Absolutely, and I wish more people would agree. It just seems to be a human trait to want to protect the speech of people with whom we agree. For the First Amendment, that is not good enough. So it is really important that we protect First Amendment rights of people no matter what side of the line they are on.

One of my disappointments in looking at this issue is how often you see liberals defending liberal causes and conservatives defending conservative causes and not enough people just stepping back and saying, "look, it’s important that everybody have the right to speak their mind even if we think the wrong side is winning as a result of it." That is something that we have to teach more. We have to teach it in our schools. I try to do that in this book without preaching — to try to do as you just said that you really have to defend the First Amendment rights of everybody.

GIACHINO: Mr. Abrams, I know that we have gone past the time you committed for the interview and we appreciate it. Can you tell the listeners where they can purchase a copy of your book, Speaking Freely: Trials of the First Amendment?

ABRAMS: Sure, it is available, of course, on Amazon.com and at all major bookstores.

GIACHINO: Thank you very much for coming on the program. I hope you will join us again.

ABRAMS: My pleasure and I’d love to come back. Thank you.

June 15, 2005
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