In 1921, Margaret Anderson and Jane Heap, respectively the publisher and editor of the Little Review, based in Greenwich Village, were fined in New York state court for publishing an “improper novel.”
The book? Ulysses, by James Joyce. It was not until 1925, less than one hundred years ago, that the First Amendment began to be applied to state censorship laws.
Floyd Abrams has been a fierce warrior for the First Amendment throughout his long legal career. Lionized for his role in the 1971 Pentagon Papers case—defending the right of the New York Times to publish top secret documents about the Vietnam War—he made his reputation defending the free speech rights of diverse individuals and the media. Abrams recently ran afoul of American popular opinion when he represented the right-wing organization Citizens United in the eponymous Supreme Court case, which affirmed the right of publication of unpopular partisan views in the teeth of a contentious presidential campaign. His new book The Soul of the First Amendment is his summation of his absolutist view of speech protection under the US Constitution.
In this passionate, slim volume, Abrams recounts the evolution of First Amendment jurisprudence in the 20th century and the first years of this century. His anecdotes tease out the distinctions made between cultural, political, and commercial speech. His defense of the ruling in Citizens United points out a discrepancy between the views of those who are passionate in defense of a free press from government interference and at the same excoriate the role of corporate money in political campaigns: as Abrams notes, media companies are themselves, in general, corporations. A restriction on corporate speech would apply to the New York Times and Washington Post equally as it would ads by the Koch brothers. And the ruling in Citizens United was not an exercise in partisan excess by the Roberts Court, but the natural extension of protection of the right to speak using your money that goes back to Buckley v. Valeo, a unanimous 1976 ruling by the Burger Court that struck down restrictions on independent expenditures (money that advocates a position rather than a specific candidate), just the sort of issue ads that have become a mainstay of American political speech.
Abrams utterly rejects the notion that there should be a level playing field for political speech which modulates some voices so that they do not drown out others. Government, in his view, is ill-suited to that job, and is prone to draft the rules to favor its pets. The current President’s outbursts regarding “fake news” certainly suggest that he is on to something essential.
The evolution of First Amendment jurisprudence in the US places it at the pinnacle of speech protection in the industrialized world. European nations, with their awareness of historical disaster precipitated by political speech, accord far less protection. Hate speech laws and “the right to be forgotten” are among the European legal rules that Abrams takes on, recognizing that the world of speech is changing in the era of the internet. The stakes are higher for our liberty and access to truth. Still, he is a believer in the power of free speech, and provides critical talking points for those defending it in the courtroom and the newsroom.
Join us June 13 at noon in the Gildenhorn Room for a conversation with Floyd Abrams hosted by the Justice & Society Program. A light lunch will be served.