Speaking Freely: Trials of the First Amendment - Hardcover

Abrams, Floyd

Hardcover

ISBN 10: 0670033758 ISBN 13: 9780670033751

Publisher: Viking Adult, 2005

Synopsis

An eminent First Amendment litigator cites recent events that have challenged America's freedom of expression, from the Patriot Act to the media's growing role in everyday lifestyles, recounting eight landmark cases that took place during the author's career in order to cast light on the importance of protecting the nation's constitutional right to free speech. 50,000 first printing.

About this title

About the Author

Floyd Abrams is a partner at Cahill, Gordon & Reindel in New York City. Described by Senator Daniel Patrick Moynihan as the “most significant First Amendment lawyer of our age,” Abrams is currently the William J. Brennan Visiting Professor at the Columbia University Graduate School of Journalism.

From the Inside Flap

"In Speaking Freely, Floyd Abrams writes with clarity, drama, and passion about a subject he knows as well as anyone alive. He hits hard, like the heavyweight he is-a brilliant champion of the First Amendment."
--Dan Rather, CBS News

"For almost four decades, Floyd Abrams has enjoyed the most enviable career in the practice of law. He has been an ardent defender of the First Amendment in a succession of transformative constitutional cases. In Speaking Freely, Abrams offers us a privileged peek into the inner workings of constitutional law. In a clear, direct, and open style, he provides citizens with a rare opportunity to understand how our most fundamental rights and liberties are questioned, defended and defined. From the Pentagon Papers to campaign finance reform, Abrams traces the evolution of the First Amendment and introduces us to the editors, the lawyers, the senators, and the justices who have threatened and preserved the cherished American right of Speaking Freely."
--Geoffrey R. Stone, author of Perilous Times: Free Speech in Wartime

"No one has been more vital in protecting the First Amendment - the core of our Constitutional democracy - than Floyd Abrams. Speaking Freely vividly recounts not only some of his victories, but also ours."
--Nat Hentoff, author of Living the Bill of Rights and The War on the Bill of Rights and the Gathering Resistance

Reviews

This new memoir by legendary First Amendment advocate Floyd Abrams is in part a history of a famous career in law, in part a collection of lawyer war stories and courtroom dramas, and in part an argument for an expansive vision of free-speech protections. Abrams has organized Speaking Freely as a series of trial narratives, told from his vantage point as legal counsel for the party trying to vindicate its speech rights -- usually but not always a media organization. Like many good trial lawyers, he has an instinctive feel for the drama of a court case, and his smooth writing (despite the sometimes legally complicated subject matter) moves the book along at a fine, engaging clip. The result is an inside tour of more than three decades of some of the most interesting free-press and free-speech litigation this country has seen.

But Abrams's argument is never far beneath the surface. Indeed, his stories are all arrayed so as to make the impassioned plea that defines his career -- that is, for "the view that sweeping First Amendment protections are essential to protect us against efforts -- in bad faith or good -- to limit speech."

The book begins with an account of the 1971 Pentagon Papers case, in which the Nixon administration tried to stop the New York Times (represented by Abrams and legal scholar Alexander Bickel) and The Washington Post from publishing leaked portions of an official history of Vietnam decision making. It then moves to efforts by states to prosecute journalists for publishing certain classes of truthful information. Next, Abrams recounts a series of libel suits in which he successfully defended press organizations against such plaintiffs as a Turkish businessman whom a newspaper had fingered as a drug dealer and Las Vegas showman Wayne Newton, on whose connections to organized crime NBC News had reported. Abrams goes on to describe his fight on behalf of the Brooklyn Museum against Rudolph Giuliani over the New York City mayor's abusive effort to evict the museum from its building for displaying controversial art that Giuliani considered sacrilegious. Speaking Freely culminates with an account of his work with Kenneth Starr to get the McCain-Feingold campaign-finance law struck down for limiting the freedom of speech of political parties, corporations and labor unions wishing to run political ads.

At their best, these accounts are hard to put down, in part because Abrams is generally pretty good about explaining the arguments made by the other side. This usually costs his argument little and actually strengthens it. Few readers today will buy the government's assertion that publishing the Pentagon Papers would have damaged U.S. national security; with the benefit of hindsight, those claims were obviously overwrought. By the same token, no argument Abrams can muster in print against Giuliani's efforts to hound the Brooklyn Museum for an art exhibit he had never seen is more likely to win readers over to the museum's positions than simply quoting the risible arguments the mayor and his lawyers made in public and in court. And how many readers of a book entitled Speaking Freely are instinctively going to favor Wayne Newton, who misled regulatory officials over his connections to the mob, over the pair of intrepid investigative reporters who exposed him?

Unfortunately, Abrams is far more fair-minded where the argument against a free-speech claim is weak than he is where it's compelling. In the one case that he describes in depth in which the policy interest opposite the free-speech claim was strong enough to prevail -- the campaign-finance case -- Abrams does not do justice to the other side's arguments. He spends considerable time describing his deposition of Sen. John McCain (R-Ariz.), one of the bill's chief sponsors; recounts his oral argument before the Supreme Court at length; attacks scholarship that purports to demonstrate the need for the campaign reforms; and ponders why liberals who are usually so sympathetic to free speech have such a blind spot about electioneering speech. Yet nowhere does he simply and candidly lay out the case for the other side: the explosive growth of "soft money" throughout the last two decades, the ads it funded and the way it eviscerated Congress's early 1970s campaign-finance law. Nor does he describe the voluminous record that his courtroom foes amassed in support of the statute. Indeed, based on his description, the naive reader would have a good deal of trouble understanding exactly what McCain-Feingold required, let alone how any court could have imagined upholding it.

This is a serious flaw, and not just because it doesn't do justice to a complicated issue. As a narrative matter, it fails to explain how exactly Floyd Abrams, revered champion of speech, could possibly have lost the case. The answer, for those readers left puzzled by Abrams's account, is not merely that the arguments on the other side that soft money created the indelible appearance of a corrupt political system were immeasurably stronger than he allows; they were also presented masterfully by the solicitor general's office, led by Theodore B. Olson, and by lawyers for the congressional sponsors of the campaign-finance bill, led by Olson's Democratic predecessor, Seth P. Waxman. Indeed, much of the real story behind how McCain-Feingold came to be upheld is that Abrams and Starr were simply outperformed as lawyers. It may be asking too much to expect Abrams to tell that particular story.

It isn't too much, however, to expect as straightforward an account of the McCain-Feingold case as Abrams offers of other cases in the book. In general, his charming, engaging and often compelling book would have been stronger if he at any point revealed any real intellectual or emotional distance from a client's litigating position. Not all First Amendment claims are created equal.

Reviewed by Benjamin Wittes
Copyright 2005, The Washington Post Co. All Rights Reserved.

In 1971, a young lawyer made his first appearance before the Supreme Court, successfully defending the New York Times against the Nixon administration's attempt to block publication of the Pentagon Papers. With that case, the cause of free speech found a formidable advocate. Abrams recounts his role in several landmark cases as he became the legal icon of an era of unparalleled extension of First Amendment protections. Most illuminating are Abrams's detailed explanations of the legal and psychological tactics he has used before the Supreme Court. He also creates some vividly villainous portraits of his antagonists, most notably Rudolph Giuliani ("deeply contemptuous of the First Amendment"), who was sued by the Brooklyn Museum of Art over his attempts to cut its financing after a controversial exhibit. Abrams rarely steps back from his courtroom reconstructions to make a more comprehensive argument for his nearly absolutist reading of the First Amendment. Only in describing his fight against the McCain-Feingold campaign finance law does Abrams reason more broadly, and his powerful argument makes a reader wish the whole book had been more expansive. Still, Abrams conveys the nuance of constitutional law, the grappling for incremental advances in precedent, the interplay between the needs of his clients and the larger cause of free speech, and the sheer intellectual pleasure of legal disputation. (Apr.)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

Abrams, an ardent legal defender of First Amendment rights for more than 30 years, brings immediacy to this analysis of how challenges to free-speech rights are affecting the ability of the U.S. to come to a clear consensus on how those rights should be applied. He re-creates eight of the most significant cases of his career, demonstrating the broad range of challenges to the First Amendment. The cases include the Pentagon Papers and Nixon's efforts to squelch publication of highly classified analysis of U.S. involvement in the Vietnam War, Mayor Giuliani's efforts to close a controversial exhibit at the Brooklyn Museum, defense of NBC in a libel suit brought by Wayne Newton, two cases raising challenges to truth as a defense for the press, and defense of a senator and broadcasters in a case involving political campaigns. Abrams offers background on the issues involved in the cases, as well as his legal strategies, and the fascinating characters engaged in the disputes. This highly accessible book should have wide appeal for lawyers, journalists, and students interested in First Amendment issues. Vernon Ford
Copyright © American Library Association. All rights reserved

Edition details

• Publisher: Viking Adult
• Publication date: 2005
• Language: English
• ISBN 10: 0670033758
• ISBN 13: 9780670033751
• Binding: Hardcover
• Edition number: 1
• Number of pages: 336