Floyd Abrams

Short, unhelpful book about how awesome the US First Amendment is, defending Abrams’ role in Citizens United because we should be able to spend unlimited amounts of money promoting candidates and the alternative is a slippery slope to government tyranny, and by we I mean rich people. This is a hard argument to make given that Abrams concedes that Canada, the UK, and Germany—none of which have an absolutist free speech protection—are functioning democracies, at least as much as the US is. There’s certainly a case to be made for protecting the hate speech etc. that those countries suppress, but the fact that Donald Trump could have been prosecuted for things he said about Mexicans during the campaign had he been running in one of those countries is not the knock-down argument to me that Abrams thinks it is. There is, I think, a case to be made that the same tools that coexist with democracy in other Western democracies would be misused more readily in the US because Americans are Weird, but it has to be made; the experience of those other countries cannot just be brushed off with claims that a slippery slope is inevitable once we regulate any speech. (And slopes go both ways; somehow the US got to its current absolutism from a past that looked a lot more like other Western democracies in terms of speech regulation, so evidently it’s not a permanent condition.)… (more)

The first amendment to the constitution is American exceptionalism writ large. It keeps the USA from participating in legal judgments internationally, because virtually everyone else’s speech laws are more restrictive in fact. It might not be the most liberal doctrine in the world, but it is the most scrupulously applied. Floyd Abrams has been a hands-on lawyer in matters of free speech – for decades. I was rather hoping for some dramatic insight from his experience, but The Soul Of The First Amendment is a quick review of how to observe it.

Abrams has a very uncomfortable chapter on Citizens United, in which he represented the winning (Republican) side. He acknowledges that 80% of Americans think the Supreme Court decision is wrong, but he defends it as fair, natural, obvious and consistent with the first amendment. He continually points instead to the power of the press, but at the beginning of the book he quotes the founders as wanting the press to be the exception: that nothing should ever restrain it. To the point of not bothering to include it in the first amendment because that was redundant. So it’s not really on the table in Citizens United.

He addresses that billion dollar funds and corporations should have the same speech rights as individuals - as accepted. Period. It’s uncomfortable because (from down here) it’s not that government and corporations might swamp politics with money. It’s that their influence should have no place in the discourse among the voters. There should be nothing wrong with setting limits at the lowest common denominator. My money cannot compete with Koch Industries, and Koch Industries doesn’t get a vote. So why is it allowed to cloud the conversation? That’s where Citizens United goes off the rails for most Americans, but Abrams skirts that event horizon. I don’t blame him, but it makes the book incomplete.

The final chapter poses the self-censorship problems of the press – whether to publish whistleblower documents and other “Top Secret” files. Nobody likes to have their secrets exposed, but Americans don’t like being spied on in secret, either. But again, the press is not part of the constitution’s equation.

The Soul Of The First Amendment doesn’t examine online speech, trolls, gag orders, harassment (other than a short foray into abortion clinic harassment) or secret courts. At just 137 pages, it can’t tackle every aspect. It does put forth a thoughtful analysis of the aspects it does examine, which is a pleasant relief from the strident accusations of our time. Not enough however.

David Wineberg… (more)

I read this book for a specific purpose: to clarify President Obama's comments in his January 2010 State of the Union speech. Mr Abrams took me through a number of cases in which he was involved including the Pentagon Papers, Wayne Newton, the Brooklyn Museum and the first case about the constitutionality of McCain-Feingold law to attempt to limit the money in politics. He has a noble mind and passionately defends Freedom of the Press. Interestingly, when he came into the practice of law, he admits to a much more reserved view of Press freedom -- and, after reading his book, I reversed my own thinking about the Pentagon Papers case. Freedom of the Press would seem to be an easy enough concept to grasp and apply. It is not. For instance, in the Pentagon Papers case, we recall they were in Daniel Ellsburg's possession illegally. One cannot deny that Mr Ellsburg did profit from the release of the Pentagon Papers so there is a real complicating issue, which defeated many of us, myself included, from the Press Freedom issue.… (more)