What are we to make of Floyd Abrams?
For more than five decades he has been toiling in the vineyards of the First Amendment, as a practicing attorney, a professor at the law schools of Columbia and Yale, and an apostle of free speech and a free press, writing and lecturing extensively in defense of his vision of both. He has appeared as counsel in numerous landmark cases in virtually every area of First Amendment law, from government secrecy to libel to campaign finance regulation. He holds the unique distinction of being the only lawyer in America known to have appeared before the Supreme Court wearing only one sock—and in the Pentagon Papers case, no less. Most of all, he is someone who has thought long and hard about 14 words—“Congress shall make no law . . . abridging the freedom of speech or of the press”—that are not only central to our national life, but are the continuing source of fierce controversy and litigation.
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.