Constitutional Law

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.

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  1. I’ve always wondered if my views on slander and libel override my views on the 1st amendment. Then I remember I have no views on slander and libel, so they don’t.

    1. Oh, except that saying that we have no knowledge of whether someone fucks sheep or not is free speech, and not libel- even if the guy or gal who’s possible sheep fucking we cannot testify about due to our admited lack of knowledge is a lawyer.

      1. Free speech means you have the right to self-identify as a dipshit, but not on somebody else’s website.

        1. I didn’t say it was free speech. I said it wasn’t libel.

          1. Damn, I did say free speech. What I meant was that it’s not protected by the government on a private entities property. So, I agree with you.

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  2. when in doubt, I always favor more speech rather than less. Gotta love how the left screams at the notion of corporations being treated as people but has no problem seeing unions as such.

    1. I see the push to ‘de-person’ corps, but I don’t see how that would have anything to do with their speech.
      A1 refers to ‘people’ only as regards the right to assemble.
      Regarding speech, it simply says “congress shall make no law” abridging it.

      1. exactly. liberals, and other statists can’t seem to grasp this

        that’s why even the ACLU supported citizen’s united, and wrote an amicus brief

        in the CU case, the issue was a documentary on hilary clinton. iow, a michael moor’ish hack piece (or so i hear) was “justifiably” CENSORED under current legislation since it referred to her, in an election year, and was released too close to an election

        so fucking what?

        this case was BLATANT censorship, but since CU was a corp., the govt. has the authority to CENSOR their movie?

        i think not

        and thankfully the SCOTUS saw it the right way

        the 1st says NOTHING about the origin of speech. it is a limitation on GOVT ACTION, not a “granting ” of rights to individuals

  3. “The wrong people are winning First Amendment cases. What can we do about it?”

    That really says it all doesn’t it?

  4. “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.”

    It’s early. I am not particularly bright. What the hell does that first sentence mean? I can not parse it.

    1. (The basic proposition that
      (we should take steps to shut down
      (entities that are nothing but infringing)))
      does not threaten the First Amendment.

      1. Was that meant as a clarification?

        1. Yes. Have another cup of coffee and look carefully.

          1. Is this what you think the sentence means?

            “The basic proposition that we should take steps to shut down entities that are doing nothing but infringing does not threaten the First Amendment.”

            As written, the sentence makes no sense.

            1. Yeah, that’s pretty much what I said right below this.

              1. Thanks. The verb in the sentence helps.

    2. It means all they do is infringe upon the IP rights, so shutting them down- since they have no form of speech that doesn’t rely on infringing upon someone else’s property rights- isn’t a threat to free speech at all.

      1. ^^Yes, exactly. Perfect summary.

    3. “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.”

      It’s early. I am not particularly bright. What the hell does that first sentence mean? I can not parse it.

      I think it means, “I strongly favor First Amendment protections of all speech unless one of the clients paying me wants me to shut down a website that is cutting into their profit margins, then I will do some fancy footwork to rationalize such coercive shutting down of speech.”

      I’m heavily paraphrasing, of course.

      1. And I would be highly surprised if the websites he wanted to shut down on behalf of his clients did “nothing but infringe” upon free speech. I suspect that it’s more like some IP law violation mixed with a lot of free speech sharing, in which case the proper remedy would be to take legal action against the IP infringement while not shutting down the website and thus ending the non-IP sharing.

  5. His thinking is technically totemic; by not a ‘technical expert’ does that imply he thinks a computer is a boombox?

    1. No, I’m sure he thinks it’s run by elves on the inside.

  6. If you read his whole paragraph on SOPA, he shows that he is just as capable of bending for the convenience of his position. He basically argues a straw man, while professing ignorance on the point that actually has to do with free speech. It’s hard to believe someone like him isn’t being willfully ignorant.

  7. I like the idea of being able to shut down websites based on content.

    Like this den of Nazis called “Reason”, for instance.

    1. Reason isn’t Nazism it’s a den of anti-feminists, male chauvinists, misanthropes, and sexist bastards

      1. You say that like it’s a bad thing.

      2. If I ever open a pub, that will be our motto…. come one, come all to the ‘den of anti-feminists, male chauvinists….’

        1. I’d work there if I may slap the customers who annoy me
          …and slap them really hard, if I like them

          1. And as a member to that den you could be considered among them, or at least with them in a masochistic way.

            1. I am strictly here as a phylactologist

  8. what libs, and other statists don’t GET is that the 1st amendment does not grant, or even recognize individual rights, as much as it – LIMITS GOVT action.

    it says to govt. – you CAN’T CENSOR ideas

    it does not matter WHERE those ideas come from, the idea is equally valid

    corps are not second class citizens when it comes to speech

    and of course corps are simply a special collection OF citizens (or noncitizens).

    regardless of who generates speech, the issue is SPEECH, not who generated it

    no special rights for journalists vs. average joes or corps

    we are ALL “the press” when we speak on matters of public interest, and even if not on matters of public interest, the burden is on the govt., not us

    1. We’re all the press until we record a cop punching a handcuffed suspect. Then we’re violating the officer’s privacy.

  9. The progressive response to Citizens United proves that progressives are just as capable of blind and unthinking group behavior as the dumbest conservatives – the only difference being that they’re hypocritical about it.

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