What are we to make of Floyd Abrams?
Abrams has just published Friend of the Court, a collection of his writings and speeches on an array of critical issues; it follows Speaking Freely (2005), in which he ranged over some of the key cases of his career, including the tale of the missing sock. Abrams is a staunch, though frequently unorthodox, liberal, with a life project of protecting and expanding the scope of legal expression under American law. For anyone—conservatives very much included—interested in the continuing controversies surrounding the First Amendment, his writings are an excellent place to start.
In both volumes, Abrams reconstructs the 1971 Pentagon Papers case. Together with Alexander Bickel, he was the outside counsel brought in to defend the New York Times against Richard Nixon’s ill-conceived effort to stop the paper from publishing the trove of purloined secrets it had obtained from former Defense Department insider Daniel Ellsberg. The story of the battle over the attempt to impose a prior restraint on the newspaper—the first in American history—is gripping no matter who tells it, and Abrams’s pen brings it vividly to life yet again. After telling the tale from his participant’s vantage point, he steps back to reflect on its legacy. And he settles on a number of consequences, one of which is the emergence of a new era of “press militancy,” or adversary journalism, as others have called it. A second is the case’s dramatic demonstration to the public of the “absurdity” of a classification system that cloaked a wealth of innocuous information in official secrecy.
But it is the legal ramifications of the decision that, to Abrams, surpass all else in importance:
Up to that time prior restraints had historically been viewed as the single most intrusive and dangerous form of government conduct threatening freedom of expression. In the Pentagon Papers case, that notion was considered in the context of publication that a majority of the Supreme Court believed would do significant harm, yet still held was protected by the First Amendment.
This paved the way for our current legal order, in which the kind of disclosure that would warrant halting the presses in advance has been narrowed nearly to the vanishing point.
If prior restraint was stripped from the government’s legal arsenal by that momentous ruling, the possibility of prosecution for publishing a national security secret after the fact remains. No such prosecutions are recorded in our history, and the question of their constitutional status, Abrams acknowledges, remains open. But what has long been only a theoretical possibility has lately had a close encounter with becoming real. A grand jury spent the past three years investigating Julian Assange and WikiLeaks for their role in obtaining and publishing hundreds of thousands of classified documents provided by the convicted leaker Bradley Manning. In the end, the Obama Justice Department decided not to move forward with an indictment of Assange; but if they had, the proceedings would have assumed a significance for the future of the First Amendment on par with the Pentagon Papers case.
Abrams finds “much to deplore” about Julian Assange and his operation, pointing to the damage done by WikiLeaks to hundreds of innocent individuals who had spoken to American diplomats in places like Cambodia and West Africa and were placed in jeopardy by the indiscriminate publication of documents containing their names. But despite that and other transgressions, if Assange had been indicted under the espionage statutes, Abrams expresses the hope that he would have been acquitted.
His reasoning is straightforward: By making it plain for the first time that the espionage statutes can be deployed against someone for “publication” of government secrets, Assange’s conviction would severely injure the standing of American journalists who engage in the same activity on a daily basis (albeit in a far more discriminating way). In this respect, it is WikiLeaks’s “misconduct” that, by courting prosecution, could have wound up “leading to more than one form of harm.”
Switching gears from national security to modern art and its discontents, Abrams offers an engaging account of New York mayor Rudolph Giuliani’s collision with the Brooklyn Museum over its 1999 exhibit “Sensation: Young British Artists from the Saatchi Collection.” Among other objects included in the show was a painting by a Nigerian artist titled The Holy Virgin Mary, constructed partly out of elephant dung. The mayor of New York, calling the exhibit “sick stuff,” attempted to cut off all city funding to the Brooklyn Museum—about a quarter of its budget—and evict it from its premises until it closed the show. Abrams led the museum’s successful defense.
One high point in that effort was the deposition of Joseph Lhota, then deputy mayor, in which Abrams’s team inquired how the city went about judging which works were unsuitable for display in the museum.
Question: In selecting the works that you deemed to be inappropriate, how did you go about doing that?
Answer: I asked myself the following question. One, do they desecrate anyone’s religion? . . . The second question is: Would I like my 8-year-old daughter to see this work of art? . . . And the third question that I asked was: Would anyone who believes in animal rights be offended?
For Lhota, things went downhill from there: “Asked if Michelangelo’s David was the sort of work of art that his 8-year-old daughter should see, Lhota replied that it was not. Could it be displayed at the Brooklyn Museum? Yes, said Lhota.”
In short order, such tangles revealed that the city had absolutely no standard at all by which to judge what art was suitable for display, not even the standard set by Lhota’s 8-year-old daughter. Shortly before Giuliani was scheduled to submit to what promised to be an equally eviscerating deposition, the city hoisted a white flag and settled the case in full retreat.
Whatever one’s appraisal of the items on display in the Saatchi collection (elephant dung, Abrams notes, is venerated in Africa for its reputedly regenerative properties), this outcome, he argues persuasively, was both necessary and important. If the case had gone in the other direction, the law would have henceforth enabled a New York mayor to require any museum or library or publicly funded institution to remove any work of art or book of which he or she disapproved. No doubt, many partisans of Giuliani would have enjoyed watching him wield that power during his tenure, especially against objects like The Holy Virgin Mary. But would they also enjoy watching it being wielded by New York’s new Sandinista-supporting, soak-the-rich mayor?
The question answers itself. Censorship is a sword that can cut in any number of directions, which is exactly why government officials, as Abrams maintains the First Amendment demands, should be kept far away from such decisions. This is hardly to say that Abrams believes the First Amendment permits anything and everything to be said or printed. He allows that the First Amendment is compatible with restrictions on expression in a number of realms, such as libel, copyright infringement, and obscenity.
The subject of censorship brings us to Citizens United, the 2010 Supreme Court case striking down the McCain-Feingold campaign finance reform legislation. This decision, barring the government from limiting political spending by corporations and unions, was greeted with shock and outrage in the liberal circles where Abrams dwells. His most notable client, the New York Times, denounced the ruling as “disastrous” and “terrible.” Jeffrey Toobin, the New Yorker’s legal analyst, judged the opinion to be the product of “bizarre legal theories,” while Howard Fineman of Newsweek excoriated it as “one of the more amazing pieces of alleged jurisprudence that I’ve ever read.”
Abrams is of a different mind. Indeed, not only did he dissent from the liberal consensus, he was among the leaders of the opposition. In 2003, he represented Senator Mitch McConnell in an unsuccessful challenge of the McCain-Feingold law. When the case was re-argued, and the law was successfully overturned by a five-four vote in 2010, Abrams filed an amicus brief and argued orally on behalf of McConnell before the Supreme Court. He notes that the law would have criminalized advertisements run by, say, the Sierra Club against a congressman who favored logging in national forests; or the National Rifle Association for publishing a book exhorting the public to vote against a candidate who opposes their stance on gun control; or the American Civil Liberties Union for creating a website telling voters to support a candidate with the best record in favor of free speech. Those who persisted in engaging in such speech in violation of the statute could be fined and/or sent to prison for up to five years.
Given that McCain-Feingold banned political speech in an election context—expression that is the heart of the First Amendment—it is difficult to conceive of a law that is more directly in conflict with the Constitution. It is sobering to contemplate the fact that the nation was saved from this travesty by the vote of a single justice.
The pages Abrams devotes to this dark chapter in the history of free speech are among the most affecting in both volumes. By turns, one senses Abrams’s incredulity, disappointment, dismay, and barely suppressed anger at erstwhile allies who enthusiastically betrayed what had hitherto been their primary cause.
“The same journalists,” he said in a 2010 speech, “who would go to the barricades to defend the right of Nazis to march in Skokie, or who would write editorials of the strongest sort defending the rights of pornographers to put their stuff on the Internet, or people engaged in the vilest sort of hate speech to have their say on the Internet” were now supporting a law that would criminalize the very kind of speech that deserves the strongest possible protection in our constitutional system. They would effectively gut the First Amendment.
Even as Abrams acknowledges that he was unprepared for the “fury of the critics of the opinion and the fierceness of their criticism,” he saw the shift coming. Indeed, as far back as 1997, he had written an article in the Columbia Journalism Review warning that a transformation was underway. In “Look Who’s Trashing the First Amendment,” Abrams observed that the First Amendment was once again under attack, “but this time its more consistent attackers are on the left. And many of its most powerful defenders are on the right.” In the eyes of liberals, he wrote, “the wrong people are speaking; they have too much money behind them; they are saying too much,” and they need to be silenced by legislation. The liberals who think like this, argues Abrams, are “at war with the First Amendment.” It was now “conservatives defending First Amendment interests.”
This is bracing stuff coming from a liberal. And there is a lot of it in Abrams, along with a lot of erudition and courage. In defending the First Amendment from all comers, he has the virtue of intellectual consistency, which his example shows is not always a hobgoblin and not always the inhabitant of small minds.
If there is a notable deficiency in these volumes, however, it may spring from Abrams’s role as a practicing attorney, and the obligations to his clients that that role brings. Thus, while Abrams freely dispenses criticism of those with whom he disagrees or of whom he disapproves—he uses the words “reckless,” “irresponsible,” and similar terms of disapprobation with refreshing frequency—one seldom comes across those words (or, indeed, any criticism at all) applied to anyone at the New York Times, or to a variety of highly problematic episodes that, at the very least, cry out for discussion.
Thus, while it is well and good to hear Abrams’s withering attack on WikiLeaks for its indiscriminate publication of government secrets, one would like to know what Abrams makes of behavior closer to home, such as the New York Times’s 2006 disclosure of the workings of a perfectly legal, but highly classified CIA/Treasury program to track the movement of terrorist funds. Or the decision of Timesreporter James Risen to publish, in his own book, top-secret material that the editors of the Times had determined, on grounds of damage to national security, should not see the light of print. One puts down these engrossing volumes with a feeling of regret, even deprivation, knowing that some additional fascinating chapters remain unwritten.
Gabriel Schoenfeld is the author of Necessary Secrets: National Security, the Media, and the Rule of Law and, most recently, A Bad Day on the Romney Campaign: An Insider’s Account.