The 80 year old Abrams, Senior Counsel at Cahill Gordon & Reindel in Lower Manhattan, was kind and generous with his time. And I don’t think he caught on that I can only answer Con Law questions presented as multiple choice.
Abrams was also very thoughtful with his answers. Indeed, he went silent for 23 seconds while pondering what the Founding Founders would say about the First Amendment’s protection of flag burning. And my question whether Citizens United will be overruled at some point led to fourteen seconds of quiet deliberation. Abrams also shared with me what he sees in his First Amendment crystal ball. And he was a very good sport to play along when I asked him if it is constitutionally protected to yell inside a move theater: “Citizens United is a terrible decision and should be set on fire.”
Floyd Abrams Trivia
I told Abrams that I wanted to start off with Floyd Abrams Trivia. He let out a curious-sounding laugh. I informed him that a Lexis search revealed a staggering 569 cases in which his name appears as counsel. Can he tell me the first one? Abrams pondered the question. But then gave up.
It was Great Atlantic and Pacific Tea Co. v. New York World’s Fair, a 1964 decision from the New York County Supreme Court. Abrams, then a first year Associate at Cahill Gordon – along with John Cahill -- represented Great Atlantic and Pacific. A&P had a sign with its name on it that was 250 feet long and had 10 feet high letters. It sat 110 feet above the ground. The New York World’s Fair was taking place nearby and was none too pleased with A&P’s sign. The World’s Fair, concerned that the bright red neon of the gargantuan sign would interfere with the beauty of the Fair’s fountain show, planned to erect a screen of artificial shrubbery to block the sign. A&P saw the screen as a “spite fence,” erected by the Fair in retaliation for A&P’s decision not to be a participant.
To Abrams’s credit, once he heard the name A&P, it all came rushing back and he had a remarkable recall of the facts, issues and people involved. I told him that earned him half credit. In the end, A&P did not succeed in its effort to enjoin the Fair’s construction of the screen. Abrams’s career was off to a slow start. But better days were ahead.
The Soul of the First Amendment
In The Soul of the First Amendment, Abrams takes an unusual approach to the subject. The obvious one, of course, would be to rattle off cases, one after another, where the Supreme Court upheld free speech protection, especially in extreme situations. Look at this, the First Amendment allows people to burn the American flag. And its guarantee is so far reaching that it even protects speech that most would find reprehensible, such as offensive statements made by protestors, in the vicinity of a military funeral, that the soldier’s death was deserved. And to take a case in which Abrams recently served as counsel for an amici curiae – the Supreme Court just ruled that the U.S. Patent and Trademark Office violated the First Amendment when it denied trademark protection to an Asian-American band on the basis that its name, The Slants, was disparaging.
But Abrams didn’t write a hurray for the First Amendment laundry list. Instead he took a different tack. At its heart, he explores the First Amendment by comparing its free speech protections to those offered by other democratic countries. For example, and Abrams provides many, the Canadian equivalent of the First Amendment did not prevent the criminal conviction of an individual who distributed flyers, containing crude language, protesting the decision by high schools in Saskatchewan to teach about homosexuality. American law, Abrams says, “could hardly be more inconsistent.”
Abrams’s comparative approach to free speech also includes a discussion of Europeans’ legally enforceable “right to be forgotten.” Thanks to a 2014 decision from the European Court of Justice, search engines can be forced to remove links to previously published content, including in newspapers, that reveals information that is now determined to be “inadequate, irrelevant or no longer relevant.” “But Americans,” Abrams assures readers, “can take both comfort and pride that no American court would or, under the First Amendment, could require [search engines] to do so.
Speech-protecting judicial decisions are the body of the First Amendment. But for Floyd Abrams that’s just half its being. The other is its “soul.” And that is its uniqueness.
I asked Abrams what made him take this comparative approach. I had a feeling that it didn’t come to him one day last year when he was standing in line at the post office.
Sure enough, to answer my question, Abrams takes me back many years. Shortly after the Pentagon Papers case, Abrams tells me, he and his wife took a trip to England and Israel. In this landmark of landmark Supreme Court decisions, Abrams represented The New York Times, winning the paper the right to publish, during the Vietnam War, top secret Department of Defense documents that assessed how the United States became involved in the war.
Abrams explained that, while visiting those two countries, he was “stunned by the fact that the English and Israeli journalists were all shocked at the result. They had enormous difficulty fathoming how, during the time of war, when the government was saying that publication would irreparably harm the national interest, and perhaps even interfere with the release of American prisoners of war, that the Times could be permitted to publish the Pentagon Papers.” He went on to add: “What struck me was here are two countries with robust presses, and in which internal disagreement and freedom to disagree was very real, and yet they were stunned at the result.” It was from that time on, Abrams said, that he has “followed the degree of differences in approach of the U.S. from other democratic nations in the world.”
As an example of The Soul of the First Amendment being a book of “ruminations,” Abrams pointed out to me that he steered away from a discussion of “what level of scrutiny the courts ought to apply in particular [First Amendment] cases. That is to say, shall we apply a rational basis test or an intermediate scrutiny test or strict scrutiny.” While this is a discussion that appears in briefs, Abrams said he didn’t think it “fit” in the book.
Speaking of the various levels of First Amendment scrutiny, Abrams acknowledged that he’s “dubious that the categorization of cases falling within one or another form of review is as significant as academics in the community might think or even some judges.” While he certainly did not dismiss the labels placed on levels of scrutiny as irrelevant, he concluded that “even if we didn’t have the words, judges would sense what sort of activity of the government ought to be subject to a higher level of scrutiny.”
Hiring Floyd Abrams
I asked Floyd Abrams what he looks for when taking a case these days. He acknowledged – but with no preening whatsoever -- that he “can make certain choices about what to do,” so “it has to be a matter of interest of me.”
He pointed to his current representation of New York Governor Andrew Cuomo, in defending the constitutionality of a statute, requiring the disclosure of the identity of large donors to charitable organizations that engage in political or issue advertising. Abrams explained that it is his First Amendment view that “the price tag for the freedom to spend a lot of money, for corporations and individuals in political campaigns, was that the public had a right to know who was spending it.” But that is not a view, Abrams told me, “that is by any means universally held.” For example, he explained that the ACLU has always been resistant to the notion of public disclosure. Calling this a “matter of real interest to me,” Abrams said it “certainly was one of the reasons I was glad to get the call to take that case.”
The Founding Fathers On Flag Burning
In The Soul of the First Amendment Abrams discusses the debate, between various Founding Fathers, over whether the Constitution should have included a Bill of Rights. The States were unanimous – 10-0 against including it. But individuals’ opinions were not in accord. Thomas Jefferson, Abrams writes, was appalled that there was no express statement of the limits of the power of the government. But to Alexander Hamilton, it wasn’t necessary to place limits on specific powers of a government that had no authority to impose such restrictions in the first place. To have followed the Hameltonian approach, Abrams told me, “would have been a tragic error.”
Abrams is a scholar on the history of the Constitution. And present-day debates over its meaning often include the question -- what would the Founding Fathers have said? So I went right for the granddaddy. After shedding so much blood for the right to have their own flag, what would the Founders have said about the right to burn it? Abrams pondered the question for a very long time. I could hear him thinking through the phone. He concluded that “they would have come out the same way that Justice Brennan did [in Texas v. Johnson (1989) and United States v. Eichman (1990)]. I think they would have allowed it as being protected.”
Citizens United And The Most Burning Question
In 2010 the Supreme Court ruled in Citizens United v. Federal Election Commission that the government’s effort to prohibit certain political campaign expenditures by corporations and unions violated the First Amendment. Criticism of the decision has been far and wide and loud, with its foes generally asserting that excessive corporate money in elections will drown out the voice of ordinary citizens, as well as affect the integrity of the process.
Abrams argued the case before the high court as counsel to Senator Mitch McConnell and was on the prevailing side. He calls Citizens United one of the most unpopular Supreme Court decisions ever with the public. He described the response to Citizens United in a piece appearing in The Nation: “When the Citizens United decision was released, many commentators treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.”
On one hand, Abrams told me that he “anticipated that the decision would be disapproved of and disagreed with by most of the people with whom I tend to share political views.” But he added that he “did not anticipate the fierceness of the response to it and the fury with which it would be received.” Nor did Abrams anticipate, he told me, that then-MSNBC commentator Keith Olbermann would call him a quisling.” [Olbermann’s full quote, recounted in Soul, is that Abrams “would go down in the history books as the quisling of freedom of freedom of speech in this country.”]
I asked Abrams whether, if the votes are there, Citizens United be overruled at some point or will the Justices feel bound by stare decisis? He tells me that it “almost depends how many years in the future you are looking. I’m confident that the four more liberal members of the Court, if empowered with an additional vote, would have been prepared to either overrule or significantly limit the scope of Citizens United. Indeed they tried to do so in the very next term.” While Abrams does not see Citizens United as being home free, at some point “a case of that magnitude will be better encased in the protective shield of stare decisis. But not yet.”
Abrams has probably been asked everything possible about Citizens United. Well, maybe not this: is it constitutionally protected to yell inside a move theater: “Citizens United is a terrible decision and it should be set on fire.” Abrams let out a hard laugh. But unlike some questions, that gave way to lengthy deliberation, he needed no time to tell me that such conduct would be constitutionally protected. But Abrams carved out an exception – doing it in the Supreme Court and literally putting a match to the decision.
Floyd Abrams’s Crystal Ball
In The Soul of the First Amendment Abrams looks into his First Amendment crystal ball. Not surprisingly he sees issues ahead surrounding the leaking of classified information, such as done by Julian Assange and Edward Snowden. And along those lines is the question how journalists should treat matters related to national security. Abrams puts it this way: “Having sweeping First Amendment rights does not begin to answer the question of how to use them. The question of when and what to publish and at what potential societal cost is not always an obvious one.”
Ironically, despite being the nation’s foremost First Amendment lawyer, Abrams doesn’t relish many more First Amendment decisions. “Let me put it this way,” he told me, “as a First Amendment advocate, I’m not looking to have the Supreme Court decide many new issues since I think that, for the most part, First Amendment law is expansive and rather easily citable already.”
But Abrams did share one case that he sees in the future. “I do think that we will be having a campus speech case one of these days come up to the Supreme Court. I do think that issues will presumably arise at a public university and the university will be arguing that they shouldn’t allow this speech or that speech because it is, at its core, inconsistent with the educational mission of the university.” That will be a blockbuster case. And something tells me that when it hits One First Street, N.E., Floyds Abrams will enter his appearance.
It was an honor to spend a half hour on the phone with the man who has been called Mr. First Amendment. Floyd Abrams even has the initials to prove it.
|