Free speech: Chal­lenged but en­dur­ing

The Washington Post Sunday - - BOOK WORLD - 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 laws 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 jewel, 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 for the idea 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.


Pro­test­ers gather at a park in Berke­ley, Calif., last month to voice their op­po­si­tion to con­ser­va­tive pun­dit Ann Coul­ter.

THE SOUL OF THE FIRST AMEND­MENT By Floyd Abrams Yale. 145 pp. $26

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