Guest Contributor — Floyd Abrams, “Liberty is Liberty”

March 18, 2015

By Ronald K.L. Collins at Concurring Opinions 

Following my post entitled “Floyd Abrams on ‘the greatest threats to free speech in this country,’” a number of readers asked where they might find the entire text of Mr. Abrams’ March 16, 2015 remarks at Temple University, Beasley School of Law (the Arlin & Neysa Adams Lecture).  

I contacted Mr. Abrams and he kindly agreed to let me post his lecture, the text of which is set out below. I have added hyperlinks to the text. — RKLC

A few weeks ago I read a blog post on Concurring Opinions. The post (entitled “First Amendment News”) is prepared weekly by Professor Ronald Collins and deals, in a particularly knowledgeable and even-handed manner, with the First Amendment in the courts, in legislatures, in academia, and elsewhere. In it, hesummarized and attached a recent “workplan” of the American Civil Liberties Union. In eight pages, it listed nine priorities for the ACLU for 2015, ranging from reproductive rights (listed first) to mass incarcerations. Freedom of speech was not among the listed priorities and was referred to in only the most passing manner, an extraordinary omission for an organization formed for the prime purpose of defending that right and probably more associated with doing so than any other entity.

The ACLU later responded, pointing to a number of activities on its part aimed at protecting the First Amendment. Before it did so, however, another scholar — Professor Howard Wasserman — had responded to the blog with a provocative thesis. “One possible (if not entirely accurate) answer,” Professor Wasserman wrote of the ACLU’s omission, was this: “We won. There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech.”

I have little doubt that Professor Wasserman didn’t mean to be taken too literally and I won’t seek to do so. But his observation did lead me to try to identify for myself what the greatest free speech civil liberties battles are today. Fortunately, we have no incidents such as in France of terrorists murdering journalists because they are offended by their offerings. Or, as in Russia, of journalists critical of the government being killed with disturbing and suspicious regularity. We have no examples of journalists being jailed, as in Turkey, because their writings outrage the regime in power. Or of direct governmental efforts to censor speech, as in India, by barring the televising of a documentary dealing with rape. Or of the Internet being censored, as in China, with the assistance of over two million people employed to monitor online conduct. Or of broadcasters being censored when they criticize the government, as in Venezuela. I could go on all too easily.


So what is the greatest threat to free speech in this country? And where is it? There are obviously major issues relating to the potential impact of pervasive government surveillance on First Amendment freedoms. And those pesky issues relating to confidential sources of journalists — and as to who is a journalist — don’t seem to go away. And, of course, there are other issues.

Yet if I had to choose a topic and a locale, I think I would first look . . . right here. On this battleground. Oh, I don’t really mean here at Temple in particular. I don’t think I do, anyway.

The On-Campus Crisis 

But I do mean in colleges and universities, on campuses and in classrooms, by students and faculty and administrations. Around the country. This does not happen, as it might have many years ago when I was in college, simply because an all-powerful administration wanted complete control over all on-campus speech. (I well recall when, a few years ago, I entered Cornell that I was required to sign some document agreeing that I could be suspended for saying, doing or not doing just about anything of which the university disapproved, including not carrying the ID card they gave me saying just that.) Nor is it the result of pressure from powerful and wealthy alumni, a serious problem of the past.

If you’d like to see that sort of danger portrayed artistically, have a look at an old movie (even for me) called “The Male Animal” (1942), with Henry Fonda as a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted – very probably unjustly – of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views. And there have been a wide range of significant issues through the years.

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.

What, after all, other than shame is deserved by Brandeis for offering and thenwithdrawing an honorary degree to Ayaan Hirsi Alia for her criticism of Islam; by the hostile atmosphere at Smith College that resulted in  Christine Lagarde’swithdrawal, the first woman to head the IMF, to speak to the graduating class; in Rutgers, for so embarrassing former Secretary of State Condoleezza Rice that she declined to appear. And for effectively withdrawing, George Will’s invitation to speak at Scripps College in California after controversy about the invitation.

And would you believe, as Chief Judge Loretta Preska of the United States District Court for the Southern District of New York pointed out in a recent address, that when the College Republicans at Fordham University invited Ann Coulter to speak on campus, “the uproar caused the group unceremoniously to rescind the invitation.”

One should really not have to say that of all places, campuses should be most protective of the broadest level of freedom of speech. Or that speakers should be permitted to have their say, instead of being booed off stage as former New York City Police Commissioner Ray Kelly was at Brown. Or shouted down, as Israeli officials have been, in threatening circumstances, and not permitted to speak on campuses. Or that it is disgraceful sometimes , as the findings of the Foundation for Individual Rights in Education (“FIRE”) reveal, that such topics as abortion, gay rights, and the “war on terror,” were “the cause of many disinvitation incidents,” that the amount of disinvitation incidents “has risen dramatically” over the past 15 years; and that Harvard – you’ve heard of Harvard, I’m sure – has the most disinvitation incidents. I don’t often quote William F. Buckley, Jr., but on hearing that, it’s hard not to recall hisobservation that “I’d rather be governed by the first 2000 people in the Boston telephone directory than the entire faculty at Harvard.”

What can one say about this other than to quote from the statement of the American Association of University Professors that, in the clearest language,observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor ofHarvard Magazine. “We must,” he wrote in 1858, “have every train of thought brought before us while we are young, and may as well at once prepare for it.”

The on-campus crisis is not limited to disinviting speakers. It includes stifling speech itself. Wendy Kaminer, writing a few weeks ago in the Washington Post, described a recent panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive) figure by name — perhaps you can recall it — she was challenged by other panelists for doing so and lateraccused in the Huffington Post with committing “an explicit act of racial violence.”

I don’t want to suggest that this is a problem limited to our country. Just as the First Amendment , which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. TheObserver, in an article published in England just a month or so ago, reported on one English university in which (like here) the speech of a deputy ambassador of Israel had to be abandoned because of protests so noisy and threats of violence so credible that the safety of the speaker could not be guaranteed; of another that banned supposedly “racist” sombreros and native American dress; and of a third—one that you might have heard of called Oxford — where a debate on abortion was cancelled by College Censors (that’s their official name, by the way) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”

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.

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 Californiabanned 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.

I do not mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Consider, as you may be, the ugly racist chants of students at the University of Oklahoma. It is difficult to condemn, on any sort of moral basis, the decision of David Boren, the President of that University, to expel the students. In universities, as elsewhere, racism is not a blemish; it is a scar on everyone — those vilified, those uttering the ugly slogans of hate, and everyone else.  And If I were the president of a private university, that is not subject to the First Amendment, my initial instinct (but not ultimate decision) might well have been to expel the students. But because state universities are treated as instrumentalities of the state, the First Amendment applies to them, and the expulsion of the students was in all likelihood unconstitutional. That, as Professor Geoffrey Stone has summarized, is because “the central meaning of the First Amendment is that we do not trust the Government to decide for us what we should be allowed to hear, read, see or know.”

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. Let me offer a few examples.

I have spoken more often than I feel comfortable confessing to defending theCitizens United opinion. And in the Supreme Court and elsewhere, I have been actively on the side of those who agreed with the Court’s ruling that the First Amendment protected corporations and unions to the point that they cannot be limited any more than you or I could in their independent expenditures on elections. That’s not my topic today – you can rest easy. 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 Timesjournalist James Risen, who my Firm represented on a pro bono basis.

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 asubpoena 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.

Yet much of the debate about the Citizens United case sounds as if it was shocking for the Supreme Court to have held that corporations receive First Amendment protection at all. 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.”

It is worth pondering about what a different nation we would live in if the answer to that question were a negative one. All the examples I cited a moment ago would become moot. Gone, then, would have been even the possibility of full free speech protections for the various entities that I mentioned a moment ago – for Barnes & Noble seeking to protect the confidentiality of the purchasers of its books, for the Brooklyn museum which wished to choose its own art regardless of the artistic taste of the Mayor, for the motion picture company not wanting to be charged with a crime for including an essential sexually oriented scene in a movie about the relationship between an older woman and teen aged boy, for colleges and universities seeking to be free to engage in affirmative action, and for corporations that are ordered by the Federal government to include language on their lawfully sold products that is drafted to persuade the public not to purchase them. The same would be true of your university — also a corporation — if it concluded that its First Amendment freedoms were at risk.

So for me, at least that part – that foundational part of the Citizens United case – should have been easy. But it isn’t. Nothing is, in the First Amendment area, these days because differences about what the First Amendment is about have become so vast. Let me offer one example of a post-Citizens United case in which those differences were spelled out with particular brio by members of the Supreme Court. It is the recent McCutcheon case, which struck down a cap on the total amount of contributions an individual may make to candidates (while leaving in effect the limits Congress had set on a candidate by candidate basis).

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 speechmatters.” 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.’”

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.”

Scholars, as well, who are willing to support the suppression of speech in the name of democracy are themselves “missing the whole point of the First Amendment.” Consider a recent article by Lincoln Caplan, who has written many articles for the New York Times editorial board and elsewhere about the First Amendment. His article appeared in The American Scholar and is is entitled The Embattled First Amendment: The Supreme Court is Interpreting the First Amendment in New Ways That Threaten our Democracy.” One of Mr. Caplan’s conclusions is this: “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. Today’s advocates do the bidding of insiders — the super-rich and the ultra-powerful, the airline, drug, petroleum and tobacco industries, all the winners in America’s winner-take-all society. In a country where the gap between the haves and have-nots has grown so extreme that both political parties pay lip service to populism, the haves have seized the First Amendment as their case — and their shield.” 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. 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.

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.

“Liberty is Liberty”

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.

© 2015, Floyd Abrams.