Mr. First Amendment
Congress shall make no law abridging Floyd Abrams’s brief.
Feb 17, 2014, Vol. 19, No. 22 • By GABRIEL SCHOENFELD
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 Times reporter 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.