Monday , March 4 2024

Speaking Freely: A Trial Lawyer on the First Amendment

Floyd Abrams earned his reputation as one of this country’s leading First Amendment lawyers in the trenches as a trial lawyer. That’s what makes his Speaking Freely: Trials of the First Amendment a welcome addition to the history of First Amendment law.

Abrams takes us inside his involvement with seven particular cases, including some he won and some he lost. These cases range from the well-known Pentagon Papers case, to defamation lawsuits by Wayne Newton and Victor Lasky, to Rudy Giuliani’s efforts to shut down an art exhibit at a Brooklyn art museum, to campaign finance reform. The variety of cases demonstrates the diversity and real-life scope of First Amendment jurisprudence. Yet this isn’t only a recounting of trials and appellate arguments. Abrams gives sufficient background and history for us to understand why each case is important. Moreover, he shows the development of litigation strategy in each case and, through generous use of transcript excerpts, how that strategy was put into practice. It also reminds us that, rather than being a relic, First Amendment law has developed significantly just the last 30 years.

Abrams pulls no punches. He describes Giuliani as “a serial First Amendment violator.” He asserts the media has taken a far too uncritical view of U.S. Sen. John McCain. Yet his criticism is not limited to one party. While Abrams admits he would be considered a political liberal, he has no hesitancy indicting liberals for “too often trading in their First Amendment beliefs to further political or social causes they favored.” He also explores how traditional views of Supreme Court justices fit on the spectrum of First Amendment jurisprudence and how positions on that spectrum can change, particularly in areas such as campaign finance reform.

Abrams says his own view of the First Amendment changed over the years. He is now as close to the camp of First Amendment absolutism (“Congress shall make no law” means no law) as you may find. Yet he clearly sees free speech as a two-way street.

A free press is not necessarily an accurate or 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.

Protecting freeom of speech in as sweeping a fashion as the First Amendment does, however, makes it all the more important that we also both protect and honor thoughtful critics of the press and of others who exercise their First Amendment rights.

Those in journalism and law, and students of those fields, will find this book a welcome addition to their bookshelves. Yet its prose is such that it will interest and educate anyone who has even a passing interest in the First Amendment and its relevance to modern life.

About Tim Gebhart

After 30 years of practicing law to provide shelter for his family, books and dogs. Tim Gebhart is now perfecting the art of doing little more than reading, writing and sleeping.

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