First Amendment Clinic | Is Free Speech on Campus in Danger? A Conversation with Floyd Abrams


H. JEFFERSON POWELL: And the
American people [INAUDIBLE] society are believed
to have somewhat– clearly, largely the same view
on many things as [INAUDIBLE].. But it is very important not
to lose sight of the fact that our disagreement is placed
within a framework of shared commitments. And one one of the most
central of those commitments is to the First Amendment
freedom [INAUDIBLE] and expression. And the fact that [INAUDIBLE]
to this event, I think, testifies to those
[INAUDIBLE] commitment to this shared American value. It’s also a good time
to be having the event because in a little
bit over two weeks will be the 100th anniversary
of Abrams against the United States. Abrams was a federal criminal
prosecution of five Russia immigrants to the
United States who held anarchist or
communist political views, and who had been charged
with or convicted of violating the seditious
speech provisions of the Espionage Act of 1998. It was no surprise
that the Supreme Court affirmed the convictions. What was surprising was
that there was a dissent. Mr. Oliver Wendell
Holmes [INAUDIBLE] joined by Justice
Louis Brandeis, in which Holmes
really, in many ways, kicked off modern first
amendment thinking. And [INAUDIBLE] first of all,
it’s gotten a little bit more complicated. But when Holmes was
writing, he said something that I think remains central
to First Amendment thought. The best test of
truth is the power of a thought to
make its way to be persuasive in the marketplace. And the only safe
ground on which we can pursue political
and social goals is truth. And that, I think,
remains a bedrock idea in American
constitutional thinking. I also want to thank
Melynn Glusman, the program coordinator for the
First Amendment clinic. On an almost daily basis,
Melynn’s great work makes me think about the fact
that I get to do all the fun stuff, and she has to do
all the not fun stuff, which she does beautifully. And thank you, Melynn,
for arranging this today. Let me introduce our speakers. The role of posing
questions will be played by our own Nicole Ligon. Nicole is a grad of
the Duke Law School. She then went to a
very distinguished firm in New York called Cahill
Gordon and Randle, where she practiced First
Amendment law with a very distinguished mentor. Nicole then came back to Duke
and is a supervising attorney of the clinic, where she
is doing fabulous work. Our guest speaker. Well, let me let me begin by
explaining our guest speaker’s status by telling you about
a personal experience. A few months ago I
was preparing a paper. And in order to
prepare the paper, I read the preface to a
book by Judge John Noonan, who’s now deceased, but
was a distinguished member of the Ninth Circuit
and legal scholar. And in the preface to
this book, Judge Noonan talks about the role
of individual lawyers, that lawyers can
make a difference. And he says– in the process
of saying that that’s one of the things I’m
trying to communicate– quote, “In a close
case, I have no doubt that a lawyer can
make a difference.” And then he lists three lawyers,
and the first name he lists is a Floyd Abrams in
a free speech case. Judge Noonan didn’t
think he needed to explain who Floyd Abrams is
or his connection to the First Amendment. And that’s because if you have
much interest in the First Amendment, you know
who Floyd Abrams is. He is senior counsel presently
in the litigation practice group at Cahill in New York. At least since the great
Pentagon Papers case in 1971, his name has been linked closely
with First Amendment thought and First Amendment
advocacy, and for a staunch and brilliant
defense of First Amendment values. Senator Daniel
Patrick Moynihan, not himself an insignificant
figure, once called Mr. Abrams the most
significant First Amendment lawyer of our age. It would be impossible for me to
overstate the role he’s played, and it would spend too much
time to a single spaced– I printed it out [INAUDIBLE]—- a
highly condensed summary of his accomplishments. I won’t try even to give you
more than just the barest idea. He’s represented “The
Times”, ABC, NBC, CBS, CNN, “Time” magazine,
“Business Week”, “The Nation”, “Reader’s Digest”,
Hearst, The AIG Group, Standard & Poor’s, The Brooklyn Museum of
Art, Nina Totenberg of National Public Radio, and on and on. He’s a member of the prestigious
American Academy of Arts and Sciences and
has served as chair of various distinguished
and important committees in government and
our profession. The list of his prizes
and awards goes on and on. He himself has taught at
Yale and Columbia Law Schools and at the Columbia Graduate
School of Journalism, and is the author of numerous
books, essays, and articles. I can also say secondhand,
but with a real sense of confidence, that he
is a fabulous mentor for young lawyers because I
had the privilege of working with two young
lawyers he’s mentored, Ms. Ligon, the supervising
attorney, and Ian Kalish, this year’s First
Amendment Fellow, both of whom came to us from Cahill. So it’s a great
honor and privilege to have Mr. Abrams here, and
to introduce Nicole as well. And Nicole? NICOLE LIGON: Well, Floyd, I
am thrilled to have you here, as Jeff said, as I
think we all are. I remember asking you questions
about the First Amendment when I was a 24-year-old summer
associate in your office, and now I have the
pleasure of doing it in this room in front
of all of these people. So not much has
changed in that regard. But it’s great to
have you here with us. And obviously, you have a
long list of accomplishments that Jeff partially read off. But it had to have
begun somewhere. So I guess, just to start
off, as a young lawyer, how did you first start
practicing First Amendment law? FLOYD ABRAMS: Well, first, let
me thank you all for coming. Thank you, Jeff and Nicole,
for the introductions. We miss Nicole. H. JEFFERSON POWELL:
You can’t have her back. FLOYD ABRAMS: Yeah. It was a great loss,
but we have to move on. Maybe I can start
by saying this. I had no idea what
I wanted to do or where I wanted to do it
when I was in law school. I’m from New York, certainly
thought I’d go back. But I wound up, as my first
job, working at a university. I thought, perhaps, of going
into teaching undergraduates about constitutional law, which
I had had undergraduate courses in at Cornell. And I really had no sense
of where I would, or wanted, even, to wind up. My first job was
working at Princeton with a professor who was
doing a book on the office and powers of the Chief
Justice of the United States. The book never got written,
but it was my first real job, and I was there for
10 months or so. I then clerked for two years
for a federal judge in Delaware and learned an enormous
amount, but also got a sense that I really had learned
something in law school. It is easy, when one graduates
and looks at a world filled, or so it seems, with lawyers, to
think about all the things they know and you don’t know. One thing I learned clerking,
I had this sort of feeling, I could do that. I could do better than that
guy, or at least as well. And then I asked
the judge for whom I was clerking if he could give
me a list of New York law firms that had done well in front of
him, that he thought well of. And he hand wrote out a
list of five law firms. The first, alphabetically,
happened to be Cahill Gordon. And I went for an
interview there. In those days, everything
was much less formal than it is now. You didn’t need appointments. You didn’t need to send a
lot of stuff in advance. You didn’t need to be
chosen to be interviewed. They just said, when
you’re in town, stop in. And I did, and they
made me an offer. And I thought, this
is a great place. And so now 56 years
have passed where I’ve been at the same firm. The firm had represented
NBC for a number of years. And at that time, as
you may have read, they were really just three
networks, NBC, ABC, and CBS. There were more radio stations,
but television was just really those three. And under the administration
of Richard Nixon, there was great antipathy
towards the press. And among other things,
a lot of subpoenas started to be served on the
press for confidential sources of journalists. And sometimes just to
have a journalist say, I was at this event and
such and such happened. And so the client
needed legal protection, if only because of the
enormous amount of time all these subpoenas were taking
because what was happening is that particularly government
lawyers, when they were trying people for certain
things, particularly things which were very
public, where there were press
conferences, who better to subpoena than a journalist? Journalists in those
days were more popular, by the way, less beleaguered
than they are today. And so we did a lot
of work for NBC then in which we were sort of
making up as we went along what the First Amendment must mean. The reason for that is
that there was just so little in the way of case law. I mean, there were these
great dissenting opinions. By the way, I’m not related to
the Abrams in the Abrams case, who wound up going
back to Russia. But so we had cases
in which journalists were being called, particularly
for confidential sources. And there were very few cases
then, and none under the First Amendment. But there were a lot of
confidential sources. And so, sort of reasoning from
the fact that there was a First Amendment, that it
protected the press, and that the journalists
were telling me they couldn’t do their
job if they couldn’t, at least in certain
circumstances, promise confidentiality
and mean it, or being ready to go to jail
if necessary, that we started making arguments about
confidential sources and why they were protected. And that was really the
beginning of my involvement. Now to be sure, I
had taken courses in college, whatever
Cornell offered then about constitutional law. I had been in national
debating contests about what was then called
trial by newspaper, which is sort of a pejorative way of
saying that the press unfairly writes about criminal
defendants in cases. And so I sort of slipped
into being a First Amendment practitioner. I really believe– I hope this doesn’t
sound too self-serving– I may have been the first
quote, First Amendment lawyer, unquote, because the phrase
wasn’t around at the time I started working. And so by a process of being
interested in the subject and the fortuity of being around
at a time when First Amendment law started to really be
developing in the late 1960s and early 1970s, that
that’s what I came to do and be associated with. I can’t say that is a model
because different things happen and different opportunities
occur to different people. But it is a model in one sense. People that practice law wind
up, in one way or another, with different sorts
of opportunities, chances, engagements,
involvements. It can be in lots of areas. It is in lots of areas. But of course, a lot of
lawyers leave the law and go do other things. They’re usually much
better because they’ve been to law school. In any event, that
was my beginning. And it was my good
fortune that I was able to be around at
the right time and to do well enough, in
any event, that I got to do a lot of the
First Amendment cases through the years. NICOLE LIGON: And as a
First Amendment advocate, you’ve represented
clients from, really, both ends of the
political spectrum. You’ve represented “The New
York Times”, the Pentagon Papers case, to Senator Mitch
McConnell and Citizens United. And I think that
many people have been surprised by that, and
your decision to represent, in particular, Senator
McConnell and Citizens United. But you’ve stood
by that decision, and you’ve stood by the
decision in the case itself. So I guess my question
to you is why? And how does
representing people who have interests or beliefs that
differ from yours, how has that impacted your view of the
First Amendment over time? FLOYD ABRAMS: Let me start
with a general statement. The First Amendment is nothing
unless it applies to everybody. It can’t be only
applicable to or usable by people with one
set of political views or political engagement. Now it is true that for a
long time in American history, the people that needed the First
Amendment were either radical– usually radical left
socialists during World War I, people starting labor
unions in the 1930s. These were people, if one
has to use the word, people of the left politically. And for the most part,
through the years until 20 years ago, I’d
say, the First Amendment was more needed by and used by
people whose either views were on the left, or who
found themselves abused in the sense of being
punished for their speech. And more often than not, that
were people with limited money, with limited power,
and who needed the protection, the shield
of the First Amendment. In more recent years, a lot
of the cases that have come up have been from the right,
speaking, again, very broadly. My own view is that it’s
very important that the First Amendment not be applied
the same to everybody, which, at least in theory,
everyone would agree with, but that regardless of its
political, and often even social impact, that it has to
be applied with the same vigor. So my view was in 2010, that
the following case came about. A conservative group made
a movie called Hillary. Hillary: The Movie. It was documentary style. It was very harsh. It was very negative. I think it fair to call it a
hit job on Hillary Clinton. It was described by Justice
Kennedy in the Citizens United case as sort of dedicated
to the proposition that she should
not be president. I happened to be then,
and to some extent now, a supporter of hers, and
certainly was at the time this documentary came out. The law that was
then on the books, which was known by the
name of its sponsors, the Mccain-Feingold
Law, and in law, for us, the Bipartisan
Campaign Finance Act, was a reform sort of law
designed to try to deal, in some way, with the problems
of money in politics– too much money, too few
people, too much power. What it did was to say that
within 60 days of an election, or 30 days of a primary, it
was illegal for corporate money to be spent with respect to
anything on television, cable, or satellite. So if there was
corporate money involved, it would be a crime
for the broadcaster to show this documentary. Now the conservative
group involved here wanted it to
be on pay per view. But the entities that would,
in effect, run pay for view would be at risk. And the broadcasters,
the entities, simply wouldn’t broadcast it
because it would be illegal. My view was that is
political speech. What could be more in the
nature of political speech than a documentary
denouncing a candidate who was running for president? Now let me say at that time, she
was expected to be nominated. Now Barack Obama wound up
being nominated and elected, of course. But at that time, she was
viewed as the very likely Democratic candidate. And for me, with my First
Amendment background– and this was the
first time I really looked at this sort of issue– for me to say that it would be
a crime to broadcast a piece of advocacy of who not to vote
for for president because there was corporate money involved–
although the statute would include union money also– was just unacceptable,
and to me, still is. So it wasn’t really
a hard choice for me. And when Senator McConnell,
who I did not know, called me and said
that he’d heard that I might be on
his side on this, I agreed to represent him,
and indeed, to do it pro bono, which is what I did in
two cases, one, first, McConnell versus the Federal
Election Commission, which was a facial
challenge to this law, and then in the
Citizens United case. Citizens United was the
conservative organization– it’s still around– that
made this anti-Hillary film. So that’s how I got
involved in that. And that, very broadly, is why
I’m still of the same views then. NICOLE LIGON: I think
that that raises a good point about just the
pushback that you’ve gotten is, in part, because we
live in a very politically polarized society today. And now more than
ever, there seems to be a lot of confusion
over what types of speech receives constitutional
protections. Is hate speech protected? What constitutes hate speech? And I think it would be great
to get some information from you and to hear what you have to
say on is hate speech protected? And why, if it is? And where do we draw that line? FLOYD ABRAMS: Well, first
let me say that the First Amendment really is unique
in the world in terms of what it does protect. There are a number of Democratic
countries that, you know, certainly they would think,
as good a claim as we to being a free
society and the like. And those countries,
for the most part, significantly limit what is
referred to as hate speech. Hate speech is what it sounds
like, speech denouncing people, groups, or the like because
of race, religion, sex, lots of other topics, and
sometimes doing it in the most vile and
potentially destructive ways. Our approach is to
say, if people speak about public issues,
they are protected, very broadly protected,
by the First Amendment. And of course, there are some
things that are speech-like . I mean, testifying
falsely in court. Perjury, right? No one thinks that’s protected
by the First Amendment. There are other speech-y sort of
things which are not protected. And there are some
areas in which we simply provide more
protection for speech, but still some limits on it. Libel. Libel in England. Our law comes from
England, although to a significant
degree in this area, it is varied from English law. In England, if you say
something which is defamatory, which is really bad about
someone else or something else, you have to be able
to prove it’s true. Here, because of the First
Amendment, we reverse that. And the person who
has spoken doesn’t have to prove the truth. The person that’s complaining
has to prove that it was false. And in a great case that
I had nothing to do with, decided in 1964, “New York
Times” versus Sullivan, we broke from English
law in the area of libel and said when you talk about a
public person, public figure, public official,
you can’t be found to have libeled that person
unless you either know what you’re saying is untrue
or have serious doubts about the truth of it. So it is a subjective test
which is very, very protective as a legal test. Means you can be
wrong, really wrong. And it sometimes mean that there
is harm effected, which is not something the law
will protect you against if you’re the
victim of false information. But the cost benefit analysis
of the First Amendment is that it’s more important
to protect the speech, and to protect speech generally. I mean, President Trump,
when he ran for office, said things which
would be deemed to be hate speech in various
countries in Europe about Mexicans and about other
people who he denounced. In Europe there’s
case after case. Someone holds up a
sign saying, go back where you came from,
meaning, usually, people from the Middle East. That’s a crime. In Canada, they
had a case, which I use as the first case I
teach in a course I’m teaching at Yale Law School this year. The very first case
I teach is a case in which Saskatchewan
School System decided that they would teach
about homosexuality in their high schools. And a very– I have to call him
a religious zealot– in Canada was not
only offended by that, but printed out on,
literally, pieces of paper– sort of old-fashioned sort
of way of communicating– and put in mailboxes
around Saskatchewan a denunciation of
the school system for doing that, saying you’re
going to teach buggery, you’re going to teach fags,
you’re going to teach this, you’re going to do that. One insult, one calumny,
really, directed at gay people after another. That’s a crime in Canada. The Canadian Supreme Court,
by a unanimous opinion, said of course we can’t
permit speech like this. It does great harm not
just to the minority that is falsely and
generally accused, but to society as a whole. What do we do when the Westboro
Baptist Church you may have heard about, which
is like a family, self-characterizes
itself as a church– they go around the country
as close to churches in which dead American soldiers
are being mourned as possible. The police tell them
where they can stand. And they stand
there, and they have signs denouncing the soldiers. And they have signs
attacking gays. And they say it’s God’s
will that this boy died or this woman died
because America is too accommodating,
too soft, too weak, too accepting of gay people. What does our Supreme
Court do in that case? Gets there. Supreme Court, by an
eight to one vote, says this is commentary
on public issues, the role of gays
in American life, the role of gays in the
military, religious views. All this stuff is protected
by the First Amendment. Look, one doesn’t have to
agree with that broad reading of the First Amendment. But in particular,
apropos of what was said at the beginning
of this session about who the sponsors of it
are, more or less– more rather than
less conservative group, more rather than
less liberal group– I mean, the theme of
the First Amendment, as it has been applied through
the years in the courts, is that we’re ready to take
and to inflict a lot of pain for the hopefully greater good
of living in a freer society and avoiding the risks of
governmental involvement in what people say, what they’re
allowed to say, and the like. So the First
Amendment, of course, applies only to the government. But it applies just
super broadly in the way that really, the rest
of Democratic countries in Western Europe and Canada
view as being unacceptably, almost thoughtlessly excessive. And our law– and it’s
liberals and conservatives, for the most part– I mean, the Westboro Baptist
Church case, think of it. Eight members of the court
signing on to the proposition that outrageous, mean-spirited,
harmful speech such as what was involved there, was protected
by the First Amendment because– for the most part, because we
just don’t trust the government to get involved in
speech, thought, religious, political,
et cetera positions. And that’s the way we live. NICOLE LIGON: And Floyd,
on that, as you recognize, there are harms that can flow
from really offensive speech. And yet we decide that we want
to protect that speech anyway. So I guess bringing it into the
campus space, what benefit does accommodating controversial
speakers impart on the academic environment? And why is that so important
that, as campuses, we recognize and we respect different
viewpoints, even if– I shouldn’t say respect in terms
of we have to agree with them. But why do we allow
for that kind of speech to be heard on
campuses, and especially in a public university, why
are we making sure that that’s constitutionally protected? FLOYD ABRAMS: Remember,
again, the First Amendment just limits the government. But just about every
great university, and even ones not so
great, have sort of signed on to the
proposition that we agree to live under First
Amendment-like rules. So I mean, Duke, for example,
could allow anyone or no one. They could ban people
based on their views. They could say no Republicans,
or no this or no that. Perfectly legal and protected
by the First Amendment, in fact, if they did. But all the great schools say– they don’t always
mean it all the time– but they say that
yeah, we’re going to live by First
Amendment norms, and therefore we’ll open it up. Now the university could
decide, if it wanted, we’re a place of scholarship. A law school could decide, if
it wanted, all we want to do is train lawyers, and to say,
we don’t want outside speakers. It’s diverting, or it’s not
part of our educational mission. And there are some people– a minority– but there
are some people who– scholars– who are of that view. What has happened in America
is that more and more, universities, including
non-state universities, have become places
where speakers are invited, often by students. And the universities,
the state universities must, under the First Amendment,
and private universities, have chosen to
say look, if we’re going to allow
someone on this side, we’re certainly going
to allow someone on the other side, et cetera. Now that is maybe too cheery
way to summarize things because as you said, I mean,
there is a darker side to this. The darker side is that some
of the speakers who come are destructive
in what they say. And again, the way we have
chosen to deal with that is by saying, we’re not going
to deal with that as a problem. We’re going to deal with it
in terms of the issues raised. But we’re not going to ban
the speaker or that speaker from coming to campus. And as I say, as a legal
matter, a university, a private university,
could say, you know, we don’t want any
speakers, or Jerry Falwell’s place, Liberty University. They’re certainly entitled to
say– and actually, they do, more or less– you know, have policies
about who they invite, being consistent with
their religious as well as political norms. And all that is
within their rights. But the better part
of our approach is that it lets students hear
different views, make choices of their own, and the like. Now that does not mean that
students have to be silent. I was very admiring of members
of the class at Notre Dame last year, where a significant
group of black women walked out of a speech that Vice
President Pence was delivering. And they walked out
before he started, and they walked out
quietly and silently. And the speech went on. They wanted to, and they
did, send a message. That action on their part
was criticized by some people that I take very seriously. Fareed Zakaria on
television said, you know, what sort of
generation are we bringing up? How are they going
to learn anything if people are going to walk
out of speeches from people that they disagree with? That’s one, seems to me,
perfectly acceptable view. And in general, I think
that’s a correct view. I also think that people
not only are allowed to, but it’s not a
bad thing for them to exercise their own political
social views and the like. Sometimes you don’t have
to go to certain things, and you don’t have to validate
certain people with whom you disagree with enough. You just can’t– mustn’t
try to shut them up. And that’s either–
well, literally, which has happened in a number
of universities with speakers, or disinvite them, which is
a humiliation to the school, you know, where
the school invites some former, usually Republican
member of the cabinet or something who they
then have to disinvite because they’re afraid of campus
unrest while the person speaks. It seems to me, look, that
the First Amendment answer is, of course the people,
if they’re invited, they ought to be allowed
to come and speak. And invitations ought
to be made by students and by universities. But the First
Amendment is not going to work if we shut people up. And that is what has happened
on too many campuses too often. NICOLE LIGON: Looking at
the time, do we have– H. JEFFERSON POWELL: You
can ask one more question, and then we’ll open it up for. NICOLE LIGON: Well,
I’ll let Floyd actually weigh in on that. Do you have any concluding
thoughts or points that you’d like to share
before we open it up to Q&A? FLOYD ABRAMS: I guess I
would emphasize something I’d averted to earlier. We really are on
what you could think of as sort of an experiment
as a country in terms of the degree to which we
protect freedom of expression. I think it cannot be denied that
there are speeches that lead to harm, pain,
anti-social, racist. And people ought
to say just that. But it’s really important
that the norm at universities and elsewhere– certainly in universities,
places of learning– is that there’s more
free speech rather than less and more openness
on the part of students to listen and make up her or
his mind about whether there’s any sense really
being expressed. H. JEFFERSON POWELL:
Thank you so much. Let’s [INAUDIBLE]. [APPLAUSE] But in the spirit of
what he’s been saying, we’d like to have a chance
for people to ask questions. FLOYD ABRAMS: Yeah, I don’t
want anyone to disagree, if you know what I mean. AUDIENCE: Thank you
so much for coming out to speak to us today. I’m curious about what
your thoughts are about whether or not national
security interest and the First Amendment are compatible because
we’ve seen a number of cases where, for example,
WikiLeaks, for example, there does seem to
be this tension. And in some cases,
national security interests tend to necessarily
automatically [INAUDIBLE] You talked about hate speech. What are your thoughts
about [INAUDIBLE]?? FLOYD ABRAMS: Yeah, it’s a
very interesting and important question. Well, let me start
with the easy stuff. Espionage is not free speech. Stealing secrets is not
freedom of expression. That’s a crime everywhere in
the world, including here. That said, though, we do
have competing interests with genuine claims of national
security, on the one hand, and genuine claims of public
interest in people being free to talk about matters
of national importance which are in the
national security area. I mean, the biggest case
I worked on in my life was the Pentagon Papers case. So that was the case
during the war in Vietnam where a top secret
study was made under the direction of
the Secretary of Defense to put down on paper how
we got involved in the war. You may think it
would be a good idea to do that study before
we get in the war. But that may be too much to ask. In any event, Secretary
McNamara asked that a study be prepared in
the middle of the war, when it was going badly,
about how we got in there in the first place. And that became known as
the Pentagon Papers case. One of their authors,
one of their authors who had been at the Defense
Department, Daniel Ellsberg, who had come to view the war
in Vietnam as a war crime, leaked all but three volumes
of the Pentagon Papers to “The New York Times”. The three volumes,
incidentally, were volumes on negotiations
to try to end the war, and Ellsberg did not want to do
anything which could interfere with that potentiality. So “The Times” had these
documents labeled, each one with a stamp on it,
top secret, and started publishing articles. The government, under
President Nixon, went to court to try to
prevent that from happening. And a judge decided– ultimately, the US
Supreme Court decided– that the government had not
met its very heavy burden of demonstrating that
publication, and the language of the critical
opinion, would surely imperil the country
or its people. There’s an inherent
problem in this area which is almost unavoidable. And that is that the
government tends to exaggerate. They tend to believe it, too. They believe what
they’re saying, and what they’re
saying, time and again, has turned out to be not as
dangerous as they thought. But you know, you have to
have a body of law which governs situations like this. And our law is, right now,
at least, is, in general, very protective of the press. Now we may have a case
within the next year. Mr. Assange from WikiLeaks
has been indicted under the Espionage Act. The US is asking England
to send him here. And if the English decide to
do that, if the English courts, where it’s literally
being considered now, decide to send him here, we
will have a major prosecution, major in the sense that the
Espionage Act is a 1919 law, 100-year-old law which is
phrased so broadly that one has to say it cannot mean
what it seems to say, publication of material relating
to the national defense, unquote, provided by someone who
does not have the right to give it to them. And what Assange has done is,
in my view, a very mixed bag. WikiLeaks has done some
good, and some other things it’s exposed. It has put at peril people
in various parts of the world by exposing them to public view,
people who provided information in confidence, human
rights workers and others, whose names became known because
Wikileaks published them. So the short answer is that
conflict, between claims of national security and
first amendment claims, is an enduring one. It is almost a necessary one. All one can do is to
hope that First Amendment overviews continue to
be applied in the sense that it’s really important not
to interfere with journalists deciding what to print. And it’s really
important that the public be informed about matters
of public interest. But there are some situations
in which that gets really hard. Just one more [INAUDIBLE]. The case I think was most
telling in that respect in 1979, when a magazine
published an article on how to build a hydrogen bomb. And it was a magazine called
The Progressive” magazine, doing it in order to warn
the world about how easy it was to do so by
saying how to do so. A very, very imprudent
judgment, I think. But nonetheless, that’s
a case in which– people who were in since 1979– so people as young men and
women, mostly men then, who were involved in
building the atomic bomb testified via affidavit that
if this material was published, it would do great
harm and imperil the security of the world. At that point, only five
countries had a hydrogen bomb, and the danger was very real. That said, it turned out
that the same information had been published elsewhere. And the case was then dropped. And fortunately,
but maybe luckily, nothing bad came
of the publication. But the national security
area, undoubtedly, is one which will always
require very tough examination. It can’t be enough– it cannot be enough to say
that there is a great risk out there. My favorite line in all
of American jurisprudence is Justice Brandeis in one
of his truly great opinions, saying, “Men feared
witches and burned women.” And he went on to say it
can’t be enough to say that this is a terrible danger. We can’t limit or punish
speeches just on that basis. Or we can only hope that our
administrations and our courts act reasonably. H. JEFFERSON POWELL:
Someone else Yes, sir. AUDIENCE: What do you think
are the most aggressive steps that our government
could take in pursuit of the goals of publicly
funded elections without running afoul of
the current interpretation of [INAUDIBLE]? FLOYD ABRAMS: To me,
the most important thing is to make sure
everybody can vote. It has become so common
in so many states to make it difficult for
people to vote– people who have been in prison, people
who are in prison, for example. We live under a regime
of gerrymandering in which one state
after another winds up arranging voting so that the
party in control has to win. I mean, the case
the Supreme Court decided just earlier
this year, basically they said was a political question,
so they wouldn’t decide it. But what happened from
North Carolina, no less, was that the legislature, the
state legislature or North Carolina, Republican-controlled,
arrange the districts so that in a state
which is basically 50/50 in terms of voting,
the Republicans got 10 seats in Congress
and the Democrats three by a very sophisticated
way of seeing where people lived, who voted, and the like. When the head of the
Republican Party was asked, why’d you do that? He said, because we
couldn’t think of any way to make it 11 to two. Now that case came up from North
Carolina and from Maryland, where the Democrats had
acted similarly, not quite as crudely, but similarly. And the Supreme Court
said– wrongly, in my view– this was a political
question which we’re not going to get involved in. But it seems to me that the
most important things that can be dealt with
are making sure that people can vote and do
vote and that their votes count. H. JEFFERSON POWELL:
One more question. [INAUDIBLE] Yes. AUDIENCE: Thank you. What’s the best way
for universities to handle situations where,
say, a controversial speaker is invited to campus,
and then, because of threats violence and
security costs, [INAUDIBLE]?? What’s the best way [INAUDIBLE]
to handle something like that? FLOYD ABRAMS: There
is no best way. I had thought that
maybe the law would be interpreted in a way
in which universities, let’s say state universities– therefore bound by
the First Amendment– could say no to certain
speakers because the costs would be so enormous. That is not the law. And indeed, the law
is to the contrary, just as you set it forth. I mean, there are
ways to deal with it, which I think, at least at this
point, we wouldn’t want to do. I mean, as long as you
treat everyone the same, you can allow more
or less speech, or more or fewer speakers. So I mean, if this gets
completely out of hand, the universities would be
free to enact rules which are even-handed, but
which ultimately wind up limiting the amount of speakers
or the nature of some speakers. But right now I really don’t
think it’s a solvable problem. And I’m really glad to have been
able to add to your knowledge. H. JEFFERSON POWELL:
Thank you so much. [APPLAUSE]




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