Abstract
A glance at the back cover of The Soul of the First Amendment reveals a Who’s Who of testimonials, one calling its author “the greatest free speech advocate of modern times.” That advocate, Floyd Abrams, is the author of many First Amendment books, articles, commentaries, and court briefs. Combine that with his courtroom experience, including before the U.S. Supreme Court, and it is difficult to imagine a better tour guide through the soul of the First Amendment. His latest book combines a concise refresher on the history of the speech and press clauses, both their somewhat painful birth and their judicial interpretation since then; the uniqueness of that interpretation within a global context; and Abrams’s own perspectives on issues such as campaign spending.
Abrams calls this book a modest essay, one meant to explain why the First Amendment matters. It is a spectacular success. As noted, a recurring theme is the exceptionalism of American free expression compared with how other nations, even other Western democracies, safeguard the right. Contrasts to the United States, its First Amendment and the U.S. Supreme Court include those made to Canada, England, the European Union, Germany, and India; to documents such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights; and to institutions such as the Canadian Supreme Court and the European Court of Human Rights. The comparisons yield dramatic differences, including, as Abrams illustrates, how words by people from then-candidate Donald Trump to comedian/critic Bill Maher are First Amendment–protected in the United States, but likely would not be tolerated elsewhere.
Abrams is quick to point out, however, that because other nations do not protect expression as fervently as does American law, does not mean they lack respect for free expression; nor does it mean that the United States cares less than other nations about competing concerns such as defamation of character and personal privacy. Instead, it is a matter of an American philosophy that, on balance, adheres to the belief that the most desirable society is produced when government is not allowed to decide what expression is permissible. Moreover, Abrams is unwilling to criticize nations that have responded to calamities by, for example, limiting or eliminating protection for hate speech.
That said, the perspective that Abrams presents in this volume is not neutral; this courtroom advocate uses some of these pages to advocate his views. That is welcome. It is clear that he embraces the American perspective while expressing criticism of, for example, the European Union–originated “right to be forgotten,” to which he devotes an entire chapter. He dissects the law, showing the burden it places on companies such as Google, which are required to remove information determined to be “inadequate, irrelevant or no longer relevant.” Abrams writes, “It is not a small thing for a government, let alone a continent-wide entity, to criminalize the dissemination of truthful information.”
Woven within these narratives is the First Amendment itself. This includes the precarious creation and survival of the Bill of Rights and the roles played by Jefferson and (a vacillating) Madison; a dormant period well into the 20th century in which censorship was rampant, “as if the First Amendment had yet to be written”; and a course correction led by Holmes and Brandeis. Discussions of Supreme Court rulings such as New York Times v. Sullivan, the often-overlooked Bridges v. California, and the Pentagon Papers case (in which Abrams participated) are strategically placed, with their importance and relevance masterfully explained.
Abrams reserves his most passionate argument for the issue of campaign spending, embodied by the still-controversial 2010 U.S. Supreme Court ruling in Citizens United. Abrams acknowledges his partiality, having represented Sen. Mitch McConnell, who opposed spending limits in the name of free speech. At the case’s center, Abrams explains, was the treatment of those wishing to participate in political or other public campaigns by spending their money. Abrams alludes to the issue in his Introduction but reserves the lion’s share of his argument for his book’s penultimate chapter. The issue is complex but suffice to say that Abrams makes a convincing case. By juxtaposing precedent, oral argument excerpts and his own expertise, Abrams reminds readers that the fairer outcome is not always the proper outcome under the First Amendment. While admitting that money matters in political campaigns, he says the remedy to overspending should not include limiting speech, even when thoughts are expressed with dollars. He also is not shy about confronting those who were critical not only of the ruling but also of him. While Abrams uses this platform to restate and reinforce his opinion, he also provides the reader incredibly valuable First Amendment–based insight into an issue that he lived.
The Soul of the First Amendment concludes with a chapter that is less law-centric than those that precede it—a thought-provoking consideration of whether and when to apply press and speech freedom to difficult, contemporary, Internet-age decision making in newsrooms. This section would be particularly good fodder for journalism classroom discussion.
In sum, Floyd Abrams’ latest volume is a knowledge-packed, smooth read. It would make a terrific capstone experience in a course, providing students an opportunity to review important concepts and to place them within current issues such as those involving WikiLeaks, Edward Snowden, and national security. If there is any reservation, it is the absence of an Afterword or Epilogue to tie together this magnificent essay.