Floyd Abrams, the country's top free speech lawyer, describes in this 2005 book a number of his most memorable free speech cases. The most memorable, of course, was the 1971 Pentagon Papers case. In that case the Nixon Administration took the New York Times to court in an attempt to prevent the publication of the Pentagon Papers, which was a study undertaken by the U.S. government to figure out how we got mired in the Vietnam mess. Abrams represented the Times. The government's argument was that publication of the papers would jeopardize national security.
The issue was under what circumstances should the courts impose "prior restraint" on a proposed publication. A past case had held that the First Amendment generally prevented prior restraint, and the only exception ever mentioned was from a 1931 case, in which it was stated that publication of "the dates of departures of ships during wartime" could be prohibited.
Abrams won this case 6-3 in the Supreme Court, as the government failed to prove that any significant harm would result from the proposed publication. Indeed, when Abrams contacted the government witnesses ten years later for an article he was writing, not a single one of them could cite a single instance in which publication of the papers had resulted in any harm to U.S. security interests.
Most of the cases Abrams discusses involve the principle that true information, lawfully obtained, about matters of public interest, cannot be suppressed. The first such case Abrams discusses was a Virginia case involving a Virginia statute that criminalized the reporting of confidential information about a pending disciplinary proceeding against a sitting judge. A unanimous Supreme Court held that the truthful report could not be subject to criminal sanctions.
Next Abrams discusses a West Virginia case in which a newspaper disclosed the name of a juvenile offender who had shot and killed a classmate. Again, the truthful report of information, lawfully obtained, about a matter of public interest was held to be immune from criminal liability.
Then we have a case in which the singer Wayne Newton sued NBC for a report documenting Newton's ties to organized crime. Again, the information was shown to be 100% true, and Newton was sent on his pathetic way with no recovery.
Next we have a case in which the Long Island newspaper Newsday reported on heroin trafficking in Turkey. A Turkish citizen who had been named as a drug trafficker sued for libel, but was rebuffed when the truth came out at trial.
Then a 1982 case in which ABC was sued by Victor Lasky, a notorious right-wing journalist, for being mentioned in a special on McCarthyism in the 1950's in a small West Virginia town. Again, Lasky was shown to all wet, due to the diligent efforts of Abrams and his team.
A different kind of issue presented itself in the Brooklyn Museum case. Here New York mayor Rudy Giuliani was attempting to pull city funding from the museum, because he personally objected to a single painting which was part of a special exhibit. Abrams successfully obtained an injunction against this action. This case arose before Giuliani became something of a national hero following 9/11; it certainly shows Guliani in a much less favorable light than in the 9/11 aftermath.
And then we have the McCain-Feingold campaign finance reform case. This law attempted to reform campaign financing. Abrams pursued a case against this law, but lost 5-4 in the Supreme Court. The three conservatives, Scalia, Thomas and Rehnquist, along with Kennedy, were with Abrams, while the four liberals, Souter, Breyer, Stevens, and Ginsburg, joined by the middle-of-the-road O'Connor, voted to uphold the law.
It is interesting to note that liberals in this country were almost uniformly in favor of the law, and the appearance of Abrams on the conservative side represented a break in the traditional support he had enjoyed from liberals. Abrams makes a persuasive case that the limitations on speech represented by McCain-Finegold are improper under the First Amendment.
As Abrams describes in 2017 book, 'The Soul of the First Amendment", he again represented Senator Mitch McConnell in a later case, the infamous (to liberals) Citizens United case. Here the court unanimously rejected the restrictions on campaign spending, so Abrams got, in effect, the last laugh on this issue.
Like most liberals, I have a visceral dislike of the Citizens United ruling, but Abrams makes a convincing case that it is correct. He points out that very few of the million-dollar donations to super-PACS since the ruling have come from corporations, which were the subject of the ruling. And, the 2016 election, in which well-funded candidates like Jeb Bush got soundly trounced, sheds doubt on the doomsayers who fear money has corrupted our politics.
But the last case discussed here is one in which I severely disagree with Abrams, with no possibility that he will ever convince me otherwise. This was a 2000 case out of Colorado, Hill v. Colorado, which involved a Colorado criminal statute making it illegal to approach another person without her consent within 100 feet of a medical facility, for the purpose of engaging in "oral protest, education, or counseling".
To me this statute is easily defensible, because at its heart it involves actions, not speech. And yet, Abrams defiantly took this to the Supreme Court, where he lost, 6-3, with Thomas, Scalia, and Kennedy dissenting. Justice Stevens' majority opinion upheld the law based on "the privacy interest in avoiding unwanted communication". The decades-old phrase of Justice Louis Brandeis comes to mind here, the "right to be let alone".
According to Abrams, the Hill case was "effectively reversed" in 2014 by an "almost identical" case out of the state of Massachusetts. This was the infamous case of McCullen v. Coakley. Amazingly, this was a unanimous Supreme court decision, and one not easily explainable. The majority opinion didn't explicitly say it was overruling Hill, and mentioned Hill only in passing. Given that two members of the majority in Hill were still on the court, and that other liberals had since joined the court, it is hard to conclude that Abrams is right when he calls the cases "almost identical".
The two case are certainly superficially identical, since both involve a statute regulating protest activities outside abortion clinics. But the problem in the Massachusetts case was that the statute limited activities at all Massachusetts abortion clinics, when the problem the statue was designed to address had existed at only one of the clinics. Therefore, the court held that the statute was not "narrowly tailored" enough to address the problem; i.e., it restricted speech far more broadly than necessary to address the problem.
Another problem with the Massachusetts case is that the named plaintiff was not the typical loudmouthed, rabble-rousing abortion protester. Rather, she was a gentle, kind, caring individual. Hence the case became one of those "hard cases that makes bad law". Indeed, the majority opinion even mentioned the word "caring" in describing her counseling technique.
It is interesting that the same three conservatives who dissented in Hill also objected to the court's reasoning here, though they concurred in the result. The three concurring justices felt that a less stringent standard than "strict scrutiny should apply, since they felt that the statute was "content based".
It is demeaning and condescending to women to think that they would be going to have an abortion without having thought through the consequences. I can only hope that this GOP war on women will some day come to an end.
This week at the court
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