- The Washington Times - Saturday, August 6, 2005

SPEAKING FREELY: TALES OF THE FIRST AMENDMENT

By Floyd Abrams

Viking, $24.95, 289 pages

REVIEWED BY JOHN GREENYA

On the day New York Times reporter Judith Miller went to jail, two men addressed the media scrim assembled outside the E. Barrett Prettyman federal courthouse in Washington. One was Bill Keller, the square-jawed and resolute-sounding executive editor of the Times, and the other was Ms. Miller’s lawyer, who, while equally outraged by the jailing, had a certain air of slightly jaded resignation as if he’d been down this particular slippery slope before. That man was Floyd Abrams, probably the best known First Amendment lawyer in the country, and, as his book “Speaking Freely” makes crystal clear, a man who most definitely has been there and done that in a spectacular array of cases, both high profile and low.

Among the well-known battles Mr. Abrams has fought on behalf of free speech are: the Pentagon Papers case; icroonic singer Wayne Newton’s libel suit against Newsday; columnist Victor Lasky’s legal tussle with ABC over a documentary about McCarthyism; and the Brooklyn Museum of Art’s donnybrook with then-NYC mayor Guiliani who tried to yank the institution’s plug over a controversial exhibit (the presciently-titled “Sensation”). In addition, there are accounts of lesser-known — but no less interesting — cases like Karaduman v. Newsday, a libel action brought by a businessman from Istanbul the paper had identified as a drug dealer. In the second half of the book, Mr. Abrams returns to front-page cases with his treatment of the legal challenges to the McCain-Feingold campaign finance law, and then winds things up with a thought-provoking look at how other nations handled the same problems. Suffice it to say that freedom of speech means more here than in many other democracies.

Floyd Abrams’ discussion of how he came to specialize in this area of the law is particularly interesting in that his initial take on the amendment that many people consider primus inter pares was quite different. As a senior in college (Cornell) he wrote a thesis in which he argued — following the lead of Justice Felix Frankfurter — that America should emulate England and “… make it criminal for the press to publish any information prior to a trial that could interfere with a defendant’s right to a fair trial. Like England, I wrote, we should adopt a body of law that would result in the jailing of editors who published prior criminal records or pretrial confessions of defendants. That I would be arguing precisely the opposite in the United States Supreme Court twenty years later was un-imaginable.”

Ah, the certitude of youth! “Speaking Freely” is the first book by Mr. Abrams, who has been a very successful lawyer for four decades, and that depth of experience may explain why this volume suffers somewhat from an excess-of-riches problem, meaning that he had too many juicy cases from which to choose. However, adding to the problem is the fact that he can’t resist quoting from his own arguments, written and oral, if not quite ad nauseum then certainly ad redundo.

(Perhaps the attorney-author was reacting to the cruel luxury of being able to take all the time and space he wants in order to make his point, unlike say, the Supreme Court where the clock is always ticking.) Mr. Abrams also slows down his own narratives by taking far too long to set up the factual backgrounds of his cases, as if he’s afraid to leave something out and then not be able to mention it on appeal. It’s like the guy who, when asked the time, tells you how to make a watch. But these are minor caveats, because when he gets to the heart of the matter he delivers the goods.

Mr. Abrams’ method suggests he’d be as effective in a classroom as he is in a courtroom. He lays out the relevant legal principles and gives then gives the reader a chance to think about them before he rings in from his corner. As a result, the book serves an educational as well as an informational function. His explication of the Pentagon Papers case, for example, provides an intriguing reminder of how important ? and how historic ? that case was. And, with the issue of national security at its core, it sounds a very contemporary note.

A similar point can also be made about Mr. Abrams’ account of the Brooklyn Museum case, which, in addition to reminding us that Rudy Giuliani wasn’t always a saint, is an object lesson in how a government should not handle a controversy involving art. At one point, in answer to Mr. Abrams’ question as to how he deemed works of art to be appropriate for public viewing, Deputy Mayor Ray Lhota testified under oath that he would ask himself three questions: “One, do they desecrate anyone’s religion? … Would I like my eight year-old-daughter to see this work of art? …and, Would anyone who believes in animal rights be offended.” Mr. Abrams then writes, “There it was. “According to the Giuliani administration, the art in a world-class cultural institution such as the Brooklyn Museum was to be reduced to a level fit for an easily offended animal-loving eight-year-old.”

Apparently, the law, like politics, can make for some strange bedfellows. In the Brooklyn case, Mr. Abrams found himself across the table from a lawyer he’d opposed 30 years earlier in the Pentagon Papers case and in his representation of Sen. Mitch McConnell’s opposition to McCain-Feingold he gets reacquainted with an old legal buddy, Kenneth Starr. Mr. Abrams’ description of his friends’ shocked reaction to what they viewed as an unholy, as well as unlikely, alliance is most interesting. Bad enough that he is opposing a law they view as being on the side of the angels, but now he’s arm-in-arm with the devil himself! Mr. Abrams writes, “Fortunately, I could not afford to spend much time worrying about what my friends thought of my apostasy.” To the author’s credit, he treats this case as thoroughly as all the others in the book, even though his side did not prevail. “Home and Abroad,” the final chapter, is a very helpful reprise of the various First Amendment themes examined in the book, especially for the lay reader, though, I would suspect that quite a few lawyers would also find it informative. At the end, the author reflects — rather movingly in my opinion — on the central importance of First Amendment protections: “A free press is not necessarily an accurate or a wise one. Precisely because speech matters so much, it can do great harm, and in fact sometimes does so. Our approach under the First Amendment has wisely, I think, generally been to risk suffering the harm that speech may do in order to avoid the greater harm that suppression of speech has often caused.” Amen to that.

John Greenya is a Washington writer and author of “Silent Justice, The Clarence Thomas Story.”

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