From the landmark Pentagon Papers case to the fight against speech-squelching campaign finance laws, attorney Floyd Abrams has been at the heart of some of the last three decades' most important battles over free expression. His new book, Speaking Freely: Trials of the First Amendment, is a real-life courtroom drama in which he recounts facing off against the Pentagon, former New York Mayor Rudy Giuliani, and even Wayne Newton. Assistant Editor Julian Sanchez spoke with Abrams in May.
Q: What threats to speech worry you now?
A: One is the expansion of FCC involvement with indecency on television. At the time of the Pacifica case, the "seven dirty words" case, the government promised and promised and promised once again that if the Supreme Court upheld limits on indecency–material not obscene but still deemed unfit for certain people–then the commission would not vastly expand its area of control. And for many years they kept their word. But in the aftermath of Janet Jackson, the FCC has stepped far into the area in a way I think threatens First Amendment values.
Q: What do you make of recent developments in the campaign finance debate?
A: The people who want to limit speech in the name of reform can never be satisfied that they're avoiding all the loopholes, since it is virtually impossible to do so. There is a natural progression from limiting speech of unions and corporations in certain areas and times to ever-increasing limits on entities that have some impact on who's elected. The reality is, all speech has some impact on who's elected. So the 527s are now in the crosshairs of the reformers, and speech is newly imperiled and must be newly defended.
Q: What led you to believe in the need for a broad, robust First Amendment?
A: I had started, as a law student, with the view that we ought to move more toward the [more restrictive] English system. What changed my mind was, first, after my graduation from law school and my joining a law firm that represented NBC, I met some journalists. That was helpful: I'd never met a journalist until I was well out of law school. Second, President Nixon was in power in the late '60s, and there was a sort of self-proving need for the First Amendment while he was in office. One didn't have to talk about how bad John Adams was to enact the Sedition Act and put Republican publishers and journalists in jail. Third, at a time of national crisis and internal divisiveness of the sort that occurred in the late '60s and early '70s, the only thing one could do was to allow speech.