My First Amendment leads me to favor more speech, not less, on campus. And more speech, not less, in our elections. And more speech, not less, by corporations. And unions. And individuals. To me, then, the issue is not who benefits from reading the First Amendment broadly. It is that we all lose by reading it narrowly. — Floyd Abrams, March 16, 2015
Floyd Abrams spoke at Temple University, Beasley School of Law, in Philadelphia yesterday to give the Arlin & Neysa Adams Lecture. In sometimes pointed, but always nuanced, remarks he singled out two great threats to free speech in modern America (see below).
In the course of his noontime remarks, Mr. Abrams took issue with
- Professor Burt Neuborne (re “whether corporations are even in the First Amendment ballpark”), and with
- Justice Stephen Breyer (re his defense of “collective speech” in his McCutcheon dissent), and with
- Mr. Lincoln Caplan (re his belief that if corporations are protected by the First Amendment democracy will be imperiled).
Mr. Abrams’ remarks were prompted, in part, by a blog post by Professor Howard Wasserman, “Declaring Victory?, PrawfsBlawg, Fe. 26, 2015 (re “There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech” — this in reference to the ACLU’s 2015 Workplan omitting any significant First Amendment agenda).
A few excerpts from the unpublished 4,300-word speech are set out below.
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Greatest Threats to Free Speech
Floyd Abrams speaking at Temple Law School
1. Suppression of Speech on College Campuses: Today, “pressures on freedom of expression, and all too often the actual suppression of free speech, come not from outside the academy but from within it. And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard.”
2. The Ideological Left’s Attacks on First Amendment Freedoms: “[I]t is the ideological Left that is increasingly less supportive of the First Amendment – or, to put it more fairly, [less supportive of] more speech or speech-like activity being protected by the First Amendment. . . .”
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What the First Amendment is About
Protecting Democracy by Protecting Speech: “Scholars, as well, who are willing to support the suppression of speech in the name of democracy are themselves missing the whole point of the First Amendment. . . . I think the First Amendment protects democracy by protecting speech and that when we suppress speech we imperil democracy. Period. So for me, when the conservative entity known as Citizens United produced and sought to put a nearly hour-long documentary-style denunciation of Hillary Clinton on pay-for-view when she was (or seemed to be) the leading Democratic candidate for President, it is obvious that it should be protected by the First Amendment. And to him and four members of the Supreme Court, because the money that was spent preparing the documentary came, in part, from corporate grants, that speech can be deemed criminal.”
The First Amendment is about Liberty: Those who suppress speech in the name of democracy conflate “what the First Amendment protects with his other societal views as to how to create a more just society. There are lots of paths we might choose to walk to do the latter. We might raise taxes, enact stricter antitrust laws, limit the size of corporations – choose your own. But what the First Amendment forbids the government from doing is abridging speech. The great English philosopher Isaiah Berlin put it this way:
Everything is what it is; liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.
“To which I add: the First Amendment is about liberty. We may and should take all appropriate steps to effectuate and protect other human values. But let’s not overcome or rewrite the First Amendment in doing so.”