Floyd Abrams: “The First Amendment Is About Liberty.”

March 18th, 2015

One of the themes I’ve developed over the past few years is a shifting trend in progressive and conservative thought on the First Amendment, and individual liberty more generally. Three important examples illustrate this divide. First, the speech rights of corporations who engage in advocacy once thought the role of individuals. Second, the religious liberty of corporations that exercise faith, once thought only the dogma of believers. Third, the freedom of association of groups, who use their assembly to thwart, rather than advance perceived­ progressive goals. I will be presenting a paper on these issues, titled “Collective Liberty” at the Yale Law School Freedom of Expression Scholars Conference in May (You can download the abstract here and watch a video of my talk here).

Fittingly, the conference is named after none other than Floyd Abrams, who has tirelessly defended the First Amendment for decades. In recent speeches and writings, Abrams has called attention to this troubling shift of views on free speech. Perhaps his most poignant words were delivered in a lecture at Temple Law School, concerning the 2015 “workplan” of the ACLU, which did not list Free Speech among its priorities. Ron Collins graciously offers the transcript here. I will offer some highlights in this post, but I encourage you to read all of it.

Abrams calls attention to the post of Howard Wasserman, who citing an ACLU response, noted that the omission of free speech was a reflection of the fact that “We won. There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech.” (Wasserman comments here).

Abrams replies that the biggest threat to free speech in America is the college campus.

Now, however, pressures on freedom of expression and all too often the actual suppression of free speech comes not from outside the academy but from within it. And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard. The amount of students who will not tolerate the expression of views with which they differ is less important than the sad reality that repetitive acts of speech suppression within and by our academic institutions persist and seem to grow in amount. And that is shameful.

Abrams recounts how many speakers (all conservatives) have been heckled, stifled, and even disinvited from speaking at college campuses, including those speaking on “topics as abortion, gay rights, and the ‘war on terror.'” Abrams calls this a “extraordinary perilous moment.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, appear to want to see and hear only views they already hold. Worse still, they want to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Oliver Wendell Holmes, to whom I referred earlier, long ago observed in one of his most famous opinions that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress,” we have seen time and again on campuses in our country speech stifled, speech condemned, and speech punished.

Abrams comments on a disturbing event where students banned the flying of national flags at the University of California:

I was struck, in that respect, to read of the dispute on the U.C. Irvine campus earlier this month when the Associated Students of the University of California banned national flags from the lobby and offices of student government on the ground that “[t]he American flag has been flown in instances of colonialism and imperialism” and that they “not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments.” “Freedom of speech,” in certain spaces, the statement continued, can be interpreted as “hate speech.” The ban only lasted a few days before it was reversed, but what remains with me is not so much the degree of estrangement of the students involved from their country but that the students that supported it weren’t content with seeking to persuade others of their views but sought to impose their own by banning speech with they disagreed. It reminded me of the people who sought to criminalize the burning of the American flag. The First Amendment side of this issue is straightforward. Don’t ban the flag and don’t jail anyone who chooses to burn his or her own flag. That’s the way people who are devoted to freedom behave.

Abrams next turns to what Collins labels “the ideological left’s drift away from the First Amendment”:

At the same time that a battle rages on campus as to what speech is to be permitted, a similar one rages in academia and on the Supreme Court as to what the First Amendment is all about. And in that conflict, as well as that relating to free speech on campus, it is the ideological Left that seems increasingly less supportive of the First Amendment – or, to put it more fairly, to more speech or speech-like activity being protected by the First Amendment.

First, Abrams defends Citizens United, which has become something of a liberal bogeyman. As I note over and over and over again, the New York Times is a for-profit corporation. The notion that it loses its free speech because it is a corporation is asinine. And for those of who you rely on the Free Press clause, turn to the ACLU or Planned Parenthood or countless other corporations who have brought constitutional challenges. Abrams lists many of the corporations he has defended:

But I would like to revisit one threshold aspect of the case that, to my surprise, still seems controversial even though I find it uncontroversial. It’s whether corporations should receive First Amendment protection at all. I have a special interest in that topic since a good part of my legal work has involved representing corporations in First Amendment cases.

So let me personalize this is a bit. It is true that when I think of clients that I or my Firm have represented in First Amendment cases, I think immediately of some individuals – Judith Miller for one, and more recently, New York Times journalist James Risen, who my Firm represented on a pro bonobasis.

But I also think of corporations. Not just enormous media corporations but ones like Barnes & Noble, that I represented some years ago with respect to a subpoena issued by the Office of Special Prosecutor Kenneth Starr in an effort to learn what book Monica Lewinsky had purchased as a gift for President Clinton. And of the Brooklyn Museum, which then New York City Mayor Rudolph Giuliani fought to close down because he disapproved of some of its art. And of a motion picture company that sought advice from us as to whether a scene in a much honored film it had made which contained a scene, filmed abroad,  showing the 17 year old star of the film sexually entangled with an older female star could be said to have violated American child pornography laws. And of a number of liberal arts colleges around the country that weighed in in the Supreme Court, in briefs we wrote for them, on the First Amendment impact on educational institutions if affirmative action was ruled unconstitutional. And of a tobacco company I represented in a challenge to the Food and Drug Administration seeking to require them to place on 50% of each of their packs grotesque pictures of dead or dying people who had smoked. And I think of the fact that until last month, when a case I had been actively involved in settled, I devoted a great deal of my time representing a credit rating agency and arguing that when the Department of Justice commenced a civil action against it and only it  arising out of ratings all but identical with those of other rating agencies and my client was the only one that had downgraded the debt of the United States, that the Government had violated the First Amendment because it is not permitted under the First Amendment to retaliate against its critics by using the law in a selective fashion.

You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not exaggerate when I say that if anyone had said that in court, he or she would have been laughed out of it.

Abrams cites Justice Stevens, Elizabeth Warren, and Burt Neuborne who have all repeated the trope that corporations have no soles, so they cannot have constitutional rights. Rubbish!

The opinion for the Court, written by Justice Anthony Kennedy, cited 25 cases, including ones involving for-profit non-media corporations, in which First Amendment protection had been afforded to corporations. Even Justice John Paul Stevens’ dissenting opinion said that “[w]e have long since held that corporations are covered by the First Amendment.” Yet listen to a different part of Justice Stevens’ opinion in which he states that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” – as if that wiped out all those First Amendment cases.  Or to Senator Elizabeth Warren, instructing us that “corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die.” All true and yet all unresponsive to why the First Amendment, as it has so often been held to do, should not be held to protect the speech of corporations as well as “real” people. Or of New York University Law Professor Burt Neuborne writing that unlike corporations, human beings “die, do not enjoy economic advantages like limited liability, and, most important, have a conscience that sometimes transcends crude economic self-interest.” These differences, Professor Neuborne argued, “raise a threshold question . . . about whether corporations are even in the First Amendment ballpark.”

Next, Abrams turns to Justice Breyer’s troubling opinion in McCutcheon v. FEC, where he speaks of a “collective” First Amendment right:

In Justice Stephen Breyer’s dissenting opinion from the ruling of the Court, he offered the following view of the First Amendment: “[T]he First Amendment advances not only the individual’s right to engage in political speech, but also the public interest in preserving a democratic order in which collective speech matters.” The First Amendment, he maintains, must be understood as promoting a government where the laws reflect “the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”

That view is consistent with the views previously voiced by Justice Breyer in his book Active Liberty: Interpreting Our Democratic Constitution (2005). In that book he argued that the primary purpose of the First Amendment is one that “goes beyond” protecting the individual from government restriction of information “about matters that the Constitution commits to individual, not collective, decision making” (emphasis added). That purpose, Justice Breyer argued, was “to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’”

Abrams replies that the Breyer gets it entirely backwards–First Amendment exists to protect individuals from the government, not the collective.

On one level, it is difficult to disagree entirely with Justice Breyer’s views since it is undeniable that by restricting the power of the government to control, let alone limit, speech, the First Amendment surely assists in protecting “democratic order.” But the core First Amendment interest is that of protecting freedom of expression from the government. Relegating that to a subsidiary position behind permitting the government, in the name of advancing democracy, to limit the amount of speech about who to vote for, risks much that the First Amendment was adopted to protect. As for Justice Breyer’s disturbing reference to “collective speech,” my view was put far better than I could by Chief Justice John Roberts’ observation that any such notion is contrary to “the whole point of the First Amendment.”

Alas, Breyer does not stand alone. His thought has permeated modern-day liberal thought in a way that was unimaginable decades ago. Abrams cites an essay by Lincoln Caplan, who writes that “However sacred the idea of free speech remains for us today, we should recognize that its most fervent champions are not standing up for mistrusted outsiders . . . or for the dispossessed and powerless.”

Abrams replies that while this may be true as a factual matter, it is entirely irrelevant to the constitutional inquiry:

There is truth in the proposition that a number of recent First Amendment victories in recent years have been on behalf of the “haves” – some of them corporations, some individuals. But that is no basis for concluding that the decisions were wrongly analyzed or wrongly decided.

What Mr. Caplan, who I am sure celebrates First Amendment victories for enormous and enormously powerful press corporations, seems to believe is that if other corporations are protected by the First Amendment, democracy itself will be imperiled. But his notion of democracy and mine are very different. I think the First Amendment protects democracy by protecting speech and that when we suppress speech we imperil democracy. Period.

We must never forget that Citizens United was, at its heart, an attempt to tell a group of conservatives that they could not distribute a move critical of Presidential Candidate Hillary Clinton. Recall Deputy SG Malcolm Stewart told Justice Alito that the government could ban a book! Never, ever forget this history when you study the outcome in Citizens United.

So for me, when Citizens United produced and sought to put a nearly hour-long documentary-style denunciation of Hillary Clinton on pay-for-view when she was (or seemed to be) the leading Democratic candidate for President, it was obvious that it should be protected by the First Amendment. And to him and four members of the Supreme Court, because the money that was spent preparing the documentary came, in part, from corporate grants, that speech can be deemed criminal.

Abrams cuts to the heart of this ideological drift–liberals are conflating the First Amendment with views of social justice (I allude to this in my piece on “Collective Liberty.”)

Let me put it another way. I think Mr. Caplan is conflating what the First Amendment protects with his other societal views as to how to create a more just society. There are lots of paths we might choose to walk to do the latter. Certain types of inequality might be dealt with by greater enforcement of – or significant amendments to – our civil rights laws. Other more economically rooted forms of inequality might be dealt with by raising taxes, enacting stricter antitrust laws, limiting the size of certain corporations – choose your own new world. But what the First Amendment forbids the government from doing is abridging speech.

Abrams closes with a powerful quote from Isaiah Berlin:

The great English philosopher Isaiah Berlin put it this way: “Everything is what it is; liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.” To which I add: the First Amendment is about liberty. We may and should take all appropriate steps to effectuate and protect other human values. But let’s not rewrite the First Amendment in doing so.

My First Amendment leads me to favor more speech, not less, on campus. And more speech, not less, in our elections. And more speech, not less, by corporations. And unions. And individuals. To me, then, the issue is not who benefits from reading the First Amendment broadly. It is that we all lose by reading it narrowly.

I wish there were more on the left who would have the audacity to say what should be an uncontroversial truth.