Floyd Abrams’ latest book compares free speech laws in United States and elsewhere
Reviewed by Carolyn Schurr Levin
Attorney Floyd Abrams, who represented The New York Times in the 1971 Pentagon Papers case and is described by the Columbia Journalism Review “as the country’s leading First Amendment litigator,” has published a new book: “The Soul of the First Amendment.”
In 2013, Abrams, senior counsel at Cahill Gordon & Reindell LLP in New York, published “Friend of the Court: On the Front Lines with the First Amendment.” In 2006, Abrams wrote “Speaking Freely: Trials of the First Amendment,” which focused on cases with which he’d been involved.
“The Soul of the First Amendment,” a 150-page book published April 25, 2017, may be Abrams’ most significant yet. Abrams focuses on why freedom of speech matters and compares U.S, First Amendment laws with laws governing free speech in other democratic nations. Abrams also looks at “how very much more protective of freedom of speech we are than other democratic nations by insisting on what they view as our rather manic devotion to it.”
Abrams makes his point decisively by comparing America’s extraordinary protection of speech with that of other countries, where, he argues, the freedom-protective language in their constitutions can be an “empty conceit.”
For example, Abrams contrasts laws and fines pertaining to anti-gay rhetoric in Canada and a U.S. Supreme Court ruling that anti-gay protests by Westboro Baptist Church members outside American soldiers’ funerals were protected under the First Amendment. The action, the Supreme Court said, could not be restricted “simply because it is upsetting or arouses contempt.”
Throughout Europe, harsh criticism of the alleged misbehaviors of Muslim immigrants has led to criminal prosecutions for speech; such prosecutions would be “unthinkable” and “undoubtedly unconstitutional” in the United States, according to Abrams.
Abrams cites two cases, in England and Belgium, where individuals were convicted for speech violations that “made fun of” or were “grossly offensive” to Muslims. In contrast, such language would be fully protected by the First Amendment in the United States.
The attorney and author also delves into court rulings regarding the “right to be forgotten” and U.S. Supreme Court rulings that under the First Amendment, the federal government cannot limit political spending by corporations or individuals.
The right to be forgotten, adopted in the European Union in 2014, is the determination that search engines must remove links to published content if it is later determined to be “inadequate, irrelevant or no longer relevant.” After analyzing the impact of this law in Europe, Abrams assures his readers that “Americans can take both comfort and pride that no American court would or, under the First Amendment,” could uphold state-required suppression of truthful information.
Similarly, Abrams writes that “although limitations may be imposed throughout Europe on spending in elections and on seeking to persuade legislatures to enact (or to determine not to enact) legislation,” such limitations would be entirely unconstitutional in the United States.
The exceptionalism of the United States in protecting freedom of speech does not mean that other countries do not respect or protect it, says Abrams. Yet, Abrams writes, “It does mean that American law does so more often, more intensely, and more controversially than is true elsewhere.”
The last chapter of “The Soul of the First Amendment” is perhaps the most thought-provoking.
By this point, Abrams has convincingly made his case about the breadth and sweeping scope of our First Amendment rights. Yet, this First Amendment guru then issues what amounts to a warning to journalists – and budding journalists – to pause before freely exercising those rights.
“Having sweeping First Amendment rights does not begin to answer the question of how to use them,” Abrams says. The decision to publish the Pentagon Papers, he notes, “did not come easily” for the New York Times in 1971.
More recently, journalists have had to grapple with leaks of millions of pages of computerized documents, as was the situation with Edward Snowden. The decision about whether to exercise the right to publish should be a thoughtful one because publication decisions often have far-reaching and serious consequences.
Abrams aptly notes that journalists are often asked to engage in a “sometimes painful decision-making process” about what to say “when law imposed few barriers to their saying just about anything they choose.” Those journalists would be well-advised to read this book before making decisions that often have profound ramifications.
More recently, journalists have grappled with leaks of millions of pages of computerized documents, as was the situation with Edward Snowden. The decision about whether to exercise the right to publish such documents can have far-reaching and serious consequences, Abrams says.
Abrams notes journalists are often asked to engage in a “sometimes painful decision-making process” about what to say “when the law imposed few barriers to their saying just about anything they choose.” Those journalists would be well-advised to read this book before making decisions that often have profound ramifications.
“The Soul of the First Amendment” has important lessons, not just for college journalists and their advisers, but also for college administrators. Abrams hopes his book “will spur college administrators, who have extremely difficult and painful decisions to make about free speech on campus, to lean more in the direction of free speech on campus.” And, we can all only hope that Abrams will continue to staunchly defend our free speech rights for a long, long time.
Carolyn Schurr Levin, an attorney specializing in Media Law and the First Amendment, is a professor of journalism and the faculty adviser for the student newspaper at Long Island University, LIU Post. She is also a lecturer and the media law adviser for the Stony Brook University School of Journalism. She has practiced law for over 25 years, including as the Vice President and General Counsel of Newsday and the Vice President and General Counsel of Ziff Davis Media. She earned a J.D. from the University of Chicago Law School, a B.A. from Johns Hopkins University, and a Certificate in Journalism from New York University.