[Paleopsych] NYTBR: 'Speaking Freely': Your Right to Say It

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'Speaking Freely': Your Right to Say It
New York Times Book Review, 5.
http://www.nytimes.com/2005/04/17/books/review/17ROSENL.html

    By JEFFREY ROSEN

SPEAKING FREELY: Trials of the First Amendment.
By Floyd Abrams.
306 pp. Viking. $25.95.

    IF I were a real lawyer, I'd like to be Floyd Abrams. The most
    sought-after First Amendment litigator of his generation, he has
    championed free speech in some of the highest-profile courtroom
    battles of the past 30 years, several of them on behalf of The New
    York Times. In ''Speaking Freely,'' his first book, Abrams writes
    engagingly about the First Amendment dramas in which he played a
    starring role. By the end of the book, though, it's hard to avoid the
    conclusion that free-speech conflicts today have less easily
    identifiable heroes and villains than they once did.

    The period when American courts vigorously enforced the First
    Amendment is remarkably short, and Abrams was present at the creation.
    In 1971, he and his former law professor, Alexander Bickel, persuaded
    the Supreme Court to reject, 6-3, a heavy-handed effort by the Nixon
    administration to forbid The Times to publish the Pentagon Papers, a
    secret account of American involvement in Vietnam. In hindsight, as
    Abrams notes, historians have concluded that ''all of the government's
    fears were overstated.'' The administration asserted, among other
    things, that publishing the names and activities of active C.I.A.
    agents would harm national security, but no supporting detail was
    offered. Abrams concludes that judges and government officials are
    very bad at predicting the likely effects of controversial
    publications, and that judicial bans on the press are likely to be
    ineffective (all the more so in the Internet age, when Daniel Ellsberg
    could have anonymously posted the papers online).

    Although a giddy victory for free speech, the publication of the
    Pentagon Papers set into motion a Rube Goldberg-like sequence of
    events, beginning with the formation of the Watergate plumbers, that
    culminated in Nixon's impeachment. The case also transformed the
    relationship between the press and government, causing journalists
    increasingly to see their role as being that of crusading adversaries
    rather than trusted confidants. This new ''press militancy,'' as
    Abrams calls it, did not always lead to better journalism; and in some
    cases, the targets of the militancy sued for libel, resulting in more
    work for Abrams. He devotes three chapters of the book to detailed
    accounts of his successful defenses of NBC, ABC and Newsday against
    charges of libel and defamation. Involving highly technical questions
    about who said what to whom, these cases make for less vivid reading
    than the great constitutional cases that pitted the government against
    the press.

    By the end of the 1990's, the First Amendment landscape looked less
    familiar. With appealing indignation, Abrams confesses that as the
    decade wore on, ''I was becoming increasingly concerned that political
    liberals (I considered myself one) were too often trading in their
    First Amendment beliefs to further political or social causes they
    favored.'' Liberals were supporting restrictions on hate speech,
    cigarette advertising, campaign spending, public access to the
    airwaves and protests of abortion clinics, while conservatives
    discovered the virtues of the First Amendment. Disappointed in his
    ideological allies for their ''devil's trade,'' Abrams jumped at the
    chance to join with Kenneth Starr, the tormentor of President Clinton,
    in challenging the constitutionality of the McCain-Feingold campaign
    finance reform act of 2002. Two years later, the Court ruled against
    Abrams and Starr by a vote of 5-4. Did Justice Clarence Thomas
    exaggerate when he said the decision was ''the most significant
    abridgment of the freedom of speech and association since the Civil
    War,'' Abrams asks with a flourish. (I'd ask, wasn't the imprisonment
    of World War I dissenters worse?)

    Today, liberals are especially enthusiastic (and conservatives
    alarmed) about the Supreme Court's references to international law in
    its recent decision striking down the death penalty for juveniles.
    Abrams notes perceptively that in Europe, nearly all of the cases he
    discusses in his book would have been decided against the press. There
    is, however, one notable exception: in Europe, journalists are
    generally not required to identify their confidential sources. By
    contrast, the United States Supreme Court, in one of Abrams's first
    significant defeats, held in 1972 that there is no First Amendment
    right not to reveal confidential sources. And this past February, the
    federal appeals court in Washington again ruled against Abrams,
    ordering his clients Judith Miller of The Times and Matt Cooper of
    Time magazine to reveal the confidential sources who had told them
    that Valerie Plame was a C.I.A. operative. One of the judges noted
    that it would be difficult to create a special privilege for
    journalists not to speak to grand juries now that any citizen with a
    modem and a blog can claim to be a journalist. The observation was
    just one more reminder of how hard it is to navigate the new First
    Amendment terrain.

    Abrams is surely correct that, as a constitutional matter, the law is
    almost always too crude and ineffective an instrument to provide a
    remedy for the genuine harms that speech can cause. (As a
    technological matter, in the age of the Internet, the harms are real
    and may continue to grow.) Today, the principled defenders of free
    speech are a small but hardy bipartisan coalition of civil libertarian
    liberals and libertarian conservatives, while its antagonists include
    mainstream liberal and conservative politicians who forget their
    former scruples as soon as they win power. (Abrams is especially
    scathing about former Mayor Rudolph Giuliani's crusade against the
    Brooklyn Museum.) Happily, liberal and conservative judges today are
    increasingly libertarian in First Amendment cases. For this improbable
    and surprisingly recent consensus, Floyd Abrams deserves his share of
    the credit.

    Jeffrey Rosen is a law professor at George Washington University and
    the legal affairs editor of The New Republic. His most recent book is
    ''The Naked Crowd.''