Can they really say that?
First Amendment guardian Floyd Abrams talks about his career, free speech, and the Jews
The only way to begin a story about Floyd Abrams is by acknowledging an obvious truth.
Mr. Abrams, the lawyer who follows his north star, the First Amendment, in ways that have made history, is a living legend. That’s just a simple, unvarnished fact.
His is a complicated story; the First Amendment, the product of a very specific time and place, can be either a holy grail or a great white whale, depending on the case. It’s never easy to apply an abstraction to real life.
He is also something that neither a First Amendment absolutist nor a living legend necessarily would be. As comes clear in interviewing Mr. Abrams, and as people who know him agree, he’s also a kind, approachable, eminently nice man.
Mr. Abrams will talk about the First Amendment, and how the rights — most particularly the right of free speech — that it enshrines are different in the United States than in other democratic countries around the world at Temple Beth Rishon in Wyckoff on Sunday, October 27. (See below.)
When he talks about other countries, Mr. Abrams focuses particularly on Canada, Great Britain, and Israel. As his name suggests, he is Jewish; “l’ll talk about Jewish subjects, particularly antisemitic speech on campuses,” he said.
Mr. Abrams, who was born in 1936, has spent his career at the Manhattan law firm Cahill Gordon & Reindel, where he’s now senior counsel. He’s argued 13 cases in front of the Supreme Court.
His first well known case was the Pentagon Papers. “I was somewhat younger then,” he said, as we all were — it was decided in 1971 — but it quickly became and remained legendary.
“It involved top-secret documents,” Mr. Abrams said, in a quick summary of that famous story. “It was a sensitive, top-secret 7,000-page internal Defense Department study of how we got into Vietnam and what happened there during the years, and the words Top Secret were stamped on every page.
“Secretary McNamara” — that was Secretary of Defense Robert S. McNamara — “had commissioned it as the war was going badly, and we didn’t seem to see an easy end to it. He went back to first principles. How did we get into this?
“And so this document, which contained material that at least the government believed was confidential enough to require the highest level of secrecy, was obtained from a source by the New York Times, and they published a lot of it.”
The source, it turned out, was Daniel Ellsberg, the political analyst and activist who released the papers to the Times and the Washington Post out of his sense of moral obligation. The war in Vietnam was raging, and he believed that the information in the papers would help force an end to it.
The government, then headed by President Richard Nixon, tried to prevent the newspapers from publishing the Pentagon Papers.
“So the government went to court and, astonishingly, after 15 days, we were already in and out of a Supreme Court, and we’d won,” Mr. Abrams, who represented the Times, said. “The ruling was that freedom of the press, freedom of speech, allowed the Times to publish, and including in the ruling that the government had failed to present any proof that the worst sort of harm — the death of our soldiers — would result from it.”
What if it was likely that publishing the Pentagon Papers would have resulted in the deaths of soldiers?
“I’ve thought about that on and off throughout the years,” he said. “In part, I think about it because the most critical question anyone on the court asked during the argument that my colleague, Professor Alexander Bickel, was asked was by Justice Stewart.” (The Romanian-born American legal scholar Alexander Mordecai Bickel of Yale Law School, who also was Jewish, died in 1974, at 49. The question came from Justice Potter Stewart.)
“Justice Stewart asked, ‘Suppose, when we go back to our chambers and I read the 7,000-page document and I think that part of it likely will result in the death of some 18-year-old American boy who had the bad fortune to have a high draft number. Are you telling me that in that circumstance, we can’t enter a prior restraint against it being published?’”
Eventually, after some attempt to evade the question, “Bickel finally had to answer. He said, ‘If that were the case, my dedication to the First Amendment would clash with my dedication to human life. And then I would say yes, you can then enter a prior restraint.’
“The fact that he had to struggle so hard, as any lawyer would in that circumstance, says something about the degree of First Amendment protection that we have.
“When the case was over, I went to Israel with my wife, who is Israeli, and everyone there was stunned by the result. It wouldn’t have been allowed there, or in England, as I was quickly advised by English friends; but so strong was and is the impact of the First Amendment that we did prevail.
“And that case has had enormous influences, not just in other legal cases but in circumstances in which presidents are angered at something the press has published and wanted to go to court, and their lawyers have told them that if do, they’ll lose.”
The morality can be complicated, even if the implications of the First Amendment are not.
“I cite the example of the case called the Nebraska Press Association versus Stuart,” Mr. Abrams continued. “A terrible murder is committed in a small town, the police find the person they believe committed the crime, and he says something amounting to a confession.
“There is a hearing in court. The press is there. The fact that there had been a confession comes out, although what he said was not revealed. The government went to court to protect the rights of the defendant,” in 1976, “and won an order barring the press from publishing it. But it went to the Supreme Court, and the court said, in substance, that this is a prior restraint on speech, and therefore it is not constitutional.
“And this happened notwithstanding that the court made clear that it could have an impact on the defendant’s right to a fair trial.”
It’s really complicated.
“I like this example because in virtually all — I think maybe in all — democratic countries, that publication would have been in contempt of court. In England, they would say that it is an intrusion into this defendant’s potential trial, and it is so likely to be harmful that the public can wait until it’s introduced in court.
“And who knows? Maybe it won’t even be introduced. Maybe the police beat it out of him. Who knows? But again, there the court said, ‘Look, this is a prior restraint on speech. The public, particularly in that area, is desperately interested in this.’
“There would be the opposite result in other democratic countries.”
Mr. Abrams also talked about a case in Belgium, where a bad driver “ran someone over, was convicted of vehicular manslaughter, and went to jail for a year.”
Twenty-five years later, that driver’s name came up on Google for the manslaughter, but nowhere else. “‘I am not a famous person,’” he said in court. “‘I paid the price for what I did, and having my name on Google enormously adds to that price.’ So the European court said that Google had to remove it.
“It is now the law in Europe that if there are some facts from years before that if revealed to the public now would do such harm to a person, and do so little public good, it can be restrained, and Google can take it down.
“In my view, that would be unconstitutional here. I am confident that courts would say, ‘Sorry, but we don’t rewrite history. We’re sorry about the consequences, but this is the lesson of the First Amendment.’”
It’s really, really complicated.
“And now we come to the Jews,” Mr. Abrams said. “As we always do.
“What about antisemitic speech? What sort of protection or nonprotection is there for that? In general, we allow speech that is not only critical but defamatory of religion.
“Our great case involved a guy in New Haven who walked around with a recording defaming the pope.” That was Cantwell vs. Connecticut, in 1940.
“New Haven then had a higher proportion of Catholics than anyplace else in the country. “This guy,” Cantwell, “would play this thing defaming the pope to people who didn’t ask to hear it. He was arrested.” Eventually the Supreme Court ruled in his favor “with a very powerful opinion talking about how part of freedom of speech is the freedom of offensive speech.”
Mr. Abrams talked about the famous case in Skokie, Illinois, in 1976, when a group of American neo-Nazis planned to march through that Chicago suburb, home to a large Jewish community that included many Holocaust survivors.
“Jewish sensibilities were offended, and Jewish concerns were very real,” he said. “The march was held to be protected speech because it was political speech. And we wind up in a situation where in many but not all circumstances the United States allows antisemitic speech, where Canada, say, wouldn’t and doesn’t.
“Canada is a good example of this because Canada celebrates the way in which speech that is defamatory of people because of their religion or race or the like is not protected. Or, to put it as they do, the public is protected against just that sort of speech.
“I am obviously talking about extreme cases — but they’re real cases. It’s to make the point that with the high level of protection of free speech in our country, some of that speech will be painful, and sometimes, even worse, it will be harmful, and sometimes even potentially dangerous.
“And that’s how we wind up in a situation in which colleges are faced with circumstances where they have to decide what to allow and what not to allow. I don’t think it is unfair to say that very often there are no satisfactory answers available.”
He does make a distinction between speech and action.
“Certainly colleges are allowed to take steps to protect students against physical threats, or language that amounts to physical threats.”
He is very thoughtful — perhaps even conflicted — about the rights of students to chant the kinds of genocide-advocating slogans that inflamed campuses and eventually led to a congressional hearing and then to the dismissal of the three university presidents who testified there last December.
“My view is that speech that advocates the genocide of Jews should have no place on the campus, because it has no educational value,” he said. “It is threatening by nature and inconsistent with a community in which people — young people, no less — are encouraged to work together, live together, and learn from each other.
“But I also want to be clear that this answer is not the answer that was in my mind after it happened, because my internal First Amendment answer — and it’s still relevant on campuses today — is that campuses ought to be very open to the widest range of speech on public matters. That is an essential part of life in an academic community.
“But when it comes to genocide, I think that changes the dynamic, to the point where the school can step in as a disciplinary matter and say that you can’t go around calling for the death of your fellow students. You can’t do it individually, and you can’t do it for racial or religious reasons.
“I also think it’s fair to say that if the language had been anti-Black in its nature, calling for the death of Black students, nobody would doubt that the school properly could stop it.
“That said, I think that the First Amendment will be held to provide for a very wide range of free speech on campus, that it should include speech that is painful, including almost anything that a student wants to say that is critical of Israel.”
This applies to private colleges, Mr. Abrams said; the rules are different for state schools, particularly in New Jersey.
Mr. Abrams will talk about these issues, and possibly others, at Temple Beth Rishon. He is full of stories, and he is able to transform court cases into compelling narratives. In a documentary called “Floyd Abrams: Speaking Freely,” part of PBS’s “American Masters” series, he touches on some of them. He talks about his family — his wife, Efrat Surasky, who now, he says sorrowfully but straightforwardly, lives with Alzheimer’s, and his children, Dan Abrams of ABC and Ronnie Abrams, a federal judge in New York State’s Southern District.
Both his children discuss their father in the documentary. Judge Abrams said that their father often would come home for dinner and then tell them bedtime stories. They were compelling; she and her brother always wanted more. They always had plots, and the children always wanted to hear more. “We didn’t hear fairy tales,” she said in the film. “We had cases.”
Come hear more cases on October 27.
Who: Floyd Abrams
What: Will be the distinguished speaker
Where: At Temple Beth Rishon in Wyckoff
When: On Sunday, October 27, at 9:45 a.m.
Why: To talk about “Freedom of speech in America”
How much: $20 for synagogue members who’ve made reservations by Thursday, October 24, $25 for everyone else.
What else: Breakfast is included.
For reservations: Go to bethrishon.org, click on “News and Events” at the top of the homepage, and then click on Mr. Abrams’ photo.
For more information: Email Stan Goodman at adulteducation@bethrishon.org
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