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Sunday, September 24, 2017

ANALYSIS/OPINION:

THE SOUL OF THE FIRST AMENDMENT

By Floyd Abrams


Yale University Press, $26, 145 pages

Much as we like to think we understand the scope of the First Amendment to the Constitution, many of us are frequently surprised to learn that it doesn’t cover things we thought it did.

For example, many Americans think hate speech is prohibited by the First Amendment, but as a unanimous U. S. Supreme Court just reminded us (in Matal v. Tam, the so-called “Slants” case) it is not, nor can an employee of a private company who gets canned because of an offensive Tweet cry “the First Amendment has my back.” So this little volume — 137 pages of text plus an eight page index — by America’s best known First Amendment lawyer could hardly be more timely.

Floyd Abrams is someone who definitely does know the First Amendment. He is senior counsel to the New York City law firm Cahill, Gordon & Reindel, an adjunct law professor at New York Law School, and for 15 years the visiting professor of First Amendment law at the Columbia School of Journalism. In addition to writing several books, he has argued many cases before the Supreme Court of the United States, including “The Pentagon Papers” and Citizens United (in “The Pentagon Papers” case he represented The New York Times, but jumped the political fence to represent Sen. Mitch McConnell in Citizens United.)

Mr. Abrams opens the book with a family anecdote: In 1976, when he and his wife and two young children were crossing the Atlantic on the Q. E. 2, his 10-year-old son Dan was stopped at the door of the ship’s movie theater and refused admittance to see “All the President’s Men,” which had been rated PG in Britain because of profanity. A bitterly disappointed Young Dan told the British steward, “That’s why we have a First Amendment. That’s why we had a revolution.” When he told his father what he’d said, Mr. Abrams writes, “I beamed.”

After a brief lesson on the Amendment’s history, Mr. Abrams makes the point that the Founding Fathers debated whether we needed any adjustments to the Constitution, “any list of prohibited government actions,” and writes, “In the end, those who believed that without a bill of rights the newly empowered federal government might well overstep its bounds into areas of personal liberty carried the day, and would eventually be viewed, as historian Joseph Ellis put it, as the nation’s ‘secular version of the Ten Commandments.’”

Mr. Abrams quotes “Saturday Review of Literature” editor Norman Cousins: “This is not to say that democracy lacks affirmative values. The affirmative values are many and varied. But they rest on a solid bedrock of restraints upon government.”

It wasn’t until the 20th century that the First Amendment was applied with the force we take for granted today. For example, 20 years before District Court Judge James Woolsey’s famous 1933 decision (affirmed a year later by the Supreme Court) that Joyce’s “Ulysses” was not pornographic, it had been ruled an “improper book” and the editor and publisher of “The Little Review” fined 50 dollars each. (One judge in the case added that the book was “unintelligible.”)

Mr. Abrams’ book’s second chapter explores differences between the American view of free speech as opposed to that of other countries, such as Poland, where in 2010 a singer was found guilty of giving “intentional offense to religious feelings” for saying she “believed more in dinosaurs that the Bible,” because “it is hard to believe in something written by people who drank too much wine and smoked herbal cigarettes.” The author observes, “When Bill Maher says much the same thing on television — he does so frequently — he is laughed at or disparaged, but not indicted.”

And in England, a person accused of libel must prove the truth of the statement, because the law there presumes the falsity of the utterance. Thus, actions for libel are successful in 90 per cent of the cases. Also in Great Britain, Cambridge University contracted for a book about Vladimir Putin’s ties to organized crime, but declined to publish it for fear of a libel suit, even though, it had no doubt about the book’s “veracity.” The same book was then published in the United States, with no litigation.

Another fascinating difference between us and the country we broke away from is that England has a statutory limit on how much an organization can spend on “procuring or promoting the election of a candidate.” That limit is five pounds, or, in American money, seven dollars.

“The Soul of the First Amendment” is a small gem of a book that can be carried around and referred to from time to time, the way many people do with their pocket-sized version of the U.S. Constitution.

• John Greenya is a Washington writer.


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