First Amendment: often challenged but consistently enduring
By Roy Gutterman, May 19, 2017
This article appeared on The Washington Post May 19, 2017.
Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.
When protesters recently shouted conservative firebrands Ann Coulter and Milo Yiannopoulos off the University of California at Berkeley campus, the irony surrounding these two separate but related incidents was as bright as the fires that the protesters ignited, nearly burning down an academic building. How could the birthplace of the 1960s free speech movement be so hostile to opposing viewpoints?
A university should be a place where discussion and debate flourish. In this case, speakers on one side of the debate had no trouble articulating their viewpoint, while they silenced speakers on the other side of the table. This not only stifles the marketplace of ideas, it also runs counter to the values of the First Amendment.
While conservative opinions were targeted at Berkeley, challenges to free speech come from across the political spectrum. President Trump’s declaration that the press is the “enemy of the American people” was one of his sharpest attacks against journalists and the Fourth Estate. It built on his other promises to crack down on leaks to journalists, as well as his campaign rhetoric naming and personally insulting reporters, and pledging to crack down on opponents and “open up” libel law to make it easier to recover damages from the press.
Yet in the face of the rhetoric, the vitriol and the tweets, citizens and the press are still able to draw on the power and permanence of the First Amendment. Floyd Abrams, perhaps the country’s most prominent First Amendment and media lawyer, makes his latest case defending free speech and press rights in his book “The Soul of the First Amendment.” Abrams’s thesis is that speech and press rights are woven into the fabric of America and set the United States apart from the rest of the world. These inherently human rights are akin to “freedom of conscience” and lead citizens to achieve self-fulfillment through speech, expression, publication and the free flow of information.
A series of six essays, “The Soul of the First Amendment” is a quick read, and at about 140 pages, considerably thinner than Abrams’s other books on the topic, particularly his recent books “Friend of the Court” (2013) and “Speaking Freely” (2005). These essays are readable and comprehensible to both a specialized audience of lawyers and laypeople just looking to understand a little more about these rights.
The book’s brevity does not detract from its substance or clarity as Abrams explains the origins and tensions of the First Amendment. He dives into historic and contemporary controversies that test our adherence to these principles, noting, “Speech is sometimes ugly, outrageous, even dangerous.”
The journey of the First Amendment begins at the Constitutional Convention in 1787 and with the vision of James Madison and the framers who emerged from the Revolution skeptical of government’s power over the people, and government’s propensity to abuse that power through censorship or aggressive application of laws to punish speech or dissent.
“The notion that First Amendment interests are served whenever laws genuinely reflect public opinion also seems to overlook the reality that the public too often seeks to suppress speech it disapproves of,” he writes.
The road, however, is littered with the carcasses of dissidents and offensive speakers. Threats to speech are discussed throughout the book, including the Sedition Act of 1798; the Espionage Act of 1917; and the jailing of abolitionist journalists during the Civil War or communists and socialists during the Red Scare, McCarthyism and the Cold War. American history is replete with examples of attacking, punishing, ostracizing or censoring a range unpopular or offensive speakers.
As the country has evolved, so has our protection of and tolerance for free speech and the marketplace of ideas.
Abrams supports much of his thesis in a lawyerly fashion, pointing to Supreme Court precedents and sprinkling in points from caselaw. It reads like a First Amendment’s Greatest Hits compilation. He cites such cases as New York Times v. Sullivan (1964), which revolutionized libel law and facilitated robust debate and criticism of public officials and public policy, particularly civil rights. He describes how in New York Times v. United States (1971), the Pentagon Papers case, the Supreme Court stood up to the Nixon administration by refusing to allow the government to block publication or censor the Times and The Washington Post, which were running stories based on leaked top-secret government documents.
The historic and the contemporary are explained and juxtaposed. For example, Abrams draws comparisons between the Pentagon Papers and WikiLeaks and the Edward Snowden stories published by the Guardian. Discussions of public officials and public figures litigating against the press are compared with recent threats by President Trump, as well as the Hulk Hogan invasion-of-privacy verdict against Gawker.
Other recent First Amendment challenges are also part of the discussion, including offensive religious protesters at military funerals, virtual child pornography, videos depicting animal abuse, flag burning and other outrageous speech. This illustrates another theme: It is easy to protect speech that does not rankle people, but the First Amendment protects ugly and offensive speech, too. Abrams also devotes a sizable portion of a chapter to defending the controversial Citizens United case.
Resting nicely on the pedestal Abrams builds, the First Amendment might be akin to America’s crown jewels, setting us apart from dictatorships and even other democracies. He writes that “the gulf between the legal protections afforded to free expression in the United States and those afforded in Europe remains oceanic.”
The explication begins with an anecdote from a family cruise in 1976, when his son, Dan, got into a tiff with the ship’s British staff, which barred the youth from a viewing of the PG-rated “All the Presidents Men” because of profanity. The aggrieved Dan, who grew up to be a lawyer and legal affairs reporter, chortled, “That’s why we have the First Amendment.”
Of course, the protections of the First Amendment apply only to government action and do not reach beyond our borders. However, this personal story sets the tone that Madison was really onto something unique.
Many other countries have laws protecting and supporting freedom of speech. However, Abrams notes that in many places, these pronouncements are mere lip service to such freedoms, especially in places where journalists and dissidents are censored, harassed, imprisoned or killed for expressing themselves.
With these countries, there is no comparison and never will be. Abrams also distinguishes between American values and European countries, particularly Britain and the European Union, where libel laws are more plaintiff-friendly and the “right to be forgotten” has forced websites and search engines such as Google to remove hundreds of thousands of articles. International plaintiffs seek and sometimes find hospitable jurisdictions in which to litigate and punish the press through “libel tourism.”
As much as the First Amendment grants us rights to speak and express ourselves, the amendment’s construction is a bar on government power and potentially abuse. “Congress shall make no law” is a declaration to people around the world that the United States reveres our speakers and our government shall not abuse them.
Abrams has spent a lifetime fighting for First Amendment rights — in courtrooms and the court of public opinion. It takes lawyers and judges to protect these rights and to write the story of the First Amendment. Abrams’s tribute to the amendment comes at a time when many believe that freedom of the press and freedom of speech are under attack from the highest levels of government.
Let’s hope Abrams is writing an homage to the First Amendment, not its obituary.
THE SOUL OF THE FIRST AMENDMENT
By Floyd Abrams
Yale. 145 pp. $26