Superstar 1st Amendment Lawyer Floyd Abrams on Why Free Speech is an All or Nothing Deal


Great interview by Jonathan W. Peters of First Amendment Hero Floyd Abrams. A snippet:

What's the most serious threat today to free expression?

…there's too much legislation and regulation adopted on the basis of content. One example would be the rights of broadcasters. They are relegated to a second level of protection, to being judged by standards that couldn't survive First Amendment scrutiny if applied to newspapers, the Internet or other outlets.

One thing that troubles me is the willingness of too many people to be selective in their support for First Amendment norms, because of their political or ideological views. The First Amendment doesn't work that way—its protections don't vary according to whether the left or right will benefit from a particular case. The Nation magazine invited me to a forum in the late 1990s or early 2000s. Someone at the forum said, "The wrong people are winning First Amendment cases. What can we do about it?" My answer was, "Maybe you ought to change your political views to conform with your First Amendment views, rather than the other way around, trying to change the First Amendment to conform with your political views.

Abrams means what he says. Here's his take on Citizens United and the largely uninformed criticism of the seemingly obvious notion that people don't lose their speech rights when they form corporations:

I was very surprised by criticism of the idea that corporations should receive any First Amendment protection at all, as if the entities I've represented through the years—the New York Times, NBC and CBS—weren't corporations.

I've been surprised, too, by the degree to which the Citizens United opinion has been treated as if it had no roots at all, as if no prior cases indicated that the speech at issue should be protected. And most of all, I've been shocked at the notion that people who claim to defend the First Amendment would acquiesce in the idea that a politically oriented group might be criminally sanctioned for producing a documentary criticizing a candidate for the presidency of the United States.

And just to throw some seltzer into the mix, here's Abrams, who represents the Directors Guild, on why he doesn't think the Stop Online Privacy Act (SOPA) was the problem that most of us online types thought it was:

The basic proposition that we should take steps to shut down entities that are nothing but infringing does not threaten the First Amendment. That's not censorship.

Abrams grants that he's "by no means expert" on the technological issues posed by SOPA (and its analogue, PIPA), which is no small admission, since there are serious questions as to exactly how shut-down mechanisms on alleged infringement would be handled and exactly how allegations would be settled. Similarly, it's far from clear what constitutes entities that are "nothing but infringing." Etc.

Read the whole thing here.