Legal scholar speaks about why free speech matters

In Europe, Donald Trump could have been arrested for some of the comments he made about Muslims and Mexicans while campaigning for president, legal scholar Floyd Abrams LAW ’59 pointed out during a campus visit on April 5.

But that’s not the case in America, which has been more dedicated to the protection of free speech than anywhere else in the world, said Abrams, and he’s grateful that it is.

Considered one of the nation’s top constitutional lawyers and staunchest defenders of the First Amendment, Abrams took part in a conversation with Adam Liptak LAW ’88, the Supreme Court correspondent for The New York Times. The public event took place in a Yale Law School classroom, with lawyers and law students joining remotely from the New York and Washington, D.C. offices of the firm Levine Sullivan Koch & Schulz. Abrams’ new book, “The Soul of the First Amendment,” was just published by Yale University Press.

Abrams told his audience that the starting point for his book — and the core principle at heart in his own legal work — is his belief that the First Amendment is meant to be a protection against government over-control and censorship, even though it hasn’t always been interpreted in that way. As he notes in his book, the First Amendment is “a mere” 45 words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Even in Canada, Abrams said, a religious zealot who passed out pamphlets condemning homosexuals and homosexuality, for example, could be convicted of a hate crime. Asked by Liptak why America’s approach to freedom of speech is better, Abrams answered: “I think it’s better for all of us because we have shown through our history tendencies to limit speech and move into highly anti-free expression modes. We’ve made enormous progress and moved in the right direction by sort of gulping and saying, ‘We’re going to protect this sort of speech even though we understand that it’s going to inflict pain, and inflict pain on people already suffering pain from their stigmatization in American society.’”

America’s constitutional commitment to free expression — even of the sort that denigrates groups of people, as Trump did — is “bred most of all from the fear that if we start banning politicians from saying things, or the rest of us from saying things — even if they’re deeply offensive and antisocial — the effect as a whole would be a significant deprivation of freedom of a sort that all of us would recognize.”

The legal scholar defended his own decision to represent (on behalf of Senator Mitch McConnell) the conservative nonprofit organization Citizens United in the controversial 2010 Supreme Court case Citizens United v. Federal Election Commission. That decision reflected his devotion to the cause of free speech, regardless of politics, he said. In a broadly sweeping decision, a majority of the justices (5 to 4) voted that freedom of speech prohibited the government from restricting a corporation’s independent political expenditures.

“Commercial speech, I think, is an interesting area in which there will be a lot of development, sooner rather than later,” predicted Abrams.

He called the Supreme Court under Chief Justice John Roberts “a spectacularly protective one for First Amendment rights,” but warned that college campuses have most recently been the place where “First Amendment values have been the most challenged in American life.” He cited the shouting-down of campus speakers because of their views as one campus danger, and called Fordham University administrators’ decision to forbid conservative commentator Ann Coulter from speaking there unless she was part of a panel “an absolute disgrace.”

“In the older days, university administrations objected to liberal and left-wing speakers appearing,” said Abrams. Today, he added, college professors sometimes warn students in advance that class content will include something that may offend or upset them.

“It’s a difficult area because it is important for students to feel some level of comfort,” he continued. “On the other side, education isn’t always comfortable, and it shouldn’t always be comfortable. The non-negotiable part of that is that there should be absolute freedom of ideas and presentations of ideas, no matter how offensive they may seem.”

During a question-and-answer session, Abrams — who represented The New York Times in the Pentagon Papers case — said that despite its protectiveness of free speech, the current Supreme Court isn’t likely to be as protective of the press, particularly in cases involving leaked classified information.

“Journalists are at very great risk in front of the Roberts court,” Abrams said. “I think that’s one of the softest spots in term of potential for great harm [to press freedom].”