Book Review: The Soul of the First Amendment By James E. Wildes

Free speech in America is being tested al- ment, “Congress shall make no law,” has ties and enact laws. On the other hand, civil most daily. Floyd Abrams’s new book, The led the Supreme Court to rule that the First liberty involves freedom from government Soul of the First Amendment, offers timely Amendment prohibited governmental, not and the right of a citizen to pursue his or her ruminations on the meaning of the First private, suppression of speech. Abrams own interests free of improper government Amendment and its application in cur- - interference. Justice Breyer maintains that rent affairs. Abrams, a First Amendment pose of the First Amendment is to impose the First Amendment should be understood is firm in his opinion that the central pur litigator, author, and lecturer, brings his limits on governmental authority over re- to protect active liberty and to facilitate a experience and insights to the discussion. ligion, speech, and press. In support of his conversation among ordinary citizens that The book is not a scholarly exposition or a argument, Abrams cites to several Supreme will encourage their informed participation survey of First Amendment law; rather, it Court decisions that have protected loath- in the electoral process. Abrams disagrees is better described as a series of essays on some speech: Synder v. Phelps1 shielded with Justice Breyer’s argument. Although church members from tort liability for Constitution as originally drafted, absent demonstrations denouncing dead Ameri- First Amendment is that it generally results Abrams acknowledges that a benefit of the thetopics First ranging Amendment from the or ratificationany other part of the of can soldiers on the days of their funerals; in a better-informed public and a more rep- the Bill of Rights, to observations concern- v. Stevens2 struck down an act resentative government, he believes that ing Edward Snowden, Julian Assange, and the response by members of the journalist animals being tortured and killed; and Ash- seeks to safeguard against government in- of Congress that criminalized the filming of the First Amendment, first and foremost, community. croft v. Free Speech Coalition3 found uncon- trusion into freedom of religion, speech, stitutional a federal statute banning virtual and press. Abrams begins by noting that the delegates child pornography on the internet. to the Constitutional Convention did not One of the more interesting chapters in believe that a bill of rights was necessary. Abrams takes issue with liberal jurists, in the book compares free speech laws in Critics of the new Constitution, including particular, Justice Stephen Breyer, who in other countries to the protections offered Thomas Jefferson, questioned the lack of his thoughtful book, Active Liberty, draws by the First Amendment. For instance, the a bill of rights to circumscribe the power a distinction between what he describes as Supreme Court of Canada rejected a free of the national government. James Madi- “active liberty” and “civil liberty.” Active lib- speech defense of a defendant who had son, who originally saw no need for a bill erty involves a citizen’s active participation been convicted of hate speech. The defen- in government, and includes the right to de- draft of a bill. Abrams explains that the liberate in the public place, the right to vote containing hateful speech in mailboxes dant, a religious zealot, had placed flyers introductoryof rights, came words around to and the created First Amendthe first- for war or peace, and the right to make trea- after he learned that high schools in Sas-

30 Connecticut March/April 2018 Visit www.ctbar.org katchewan were about to include homosex- tween English and American defamation amounts they decide to buy the advertise- uality as a subject. Citing Synder v. Phelps, law is so large that as a result of a law ments that contain that speech. According Abrams states that American law could signed by President Barack Obama in 2010, to Abrams, Citizens United extended the not be more different. In another exam- English libel judgments are generally not same right to corporations. Abrams, in re- ple, a person in England was convicted for enforceable in the United States. At the end sponse to the warnings and predictions carrying a poster that showed the World of the chapter, Abrams recounts troubling that Citizens United would result in cash - examples of how free speech at times has - lam out of Britain—Protect the British been tested throughout American history: fers to the fact that, as of February 2016, of Trade Center on fire with the caption, “Is flowing into elections by corporations, re People.” The conviction was upheld by the the Sedition Act of 1798 made criminal the $87 million or $1 million-plus contrib- European Court of Human Rights, which much of the criticism directed at President utors to super PACS only eight were from found that the poster constituted a public corporations. Abrams further adds that attack on all Muslims in the United King- the jailing of socialists and anarchists by Citizens United upheld as constitutional John Adams and other government officials; dom. Abrams contrasts the British case the Wilson administration for their speech the disclosure requirements of campaign with assertions made by Donald Trump during World War I; and the victims of the about people of Mexican descent and about House Un-American Activities Committee advocate for greater disclosure about the finance laws. Indeed, Abrams seems to banning all Muslims from entering the under Senator Joseph McCarthy. amount of contributions and the identity of United States for a period of time. Abrams Another difference between American and contributors. Abrams also notes that only a observes that much criticism was directed European free speech jurisprudence high- small percentage of money spent on federal at the statements of Donald Trump, but no lighted by Abrams is the legally enforce- races came from secret or “dark money.” one suggested that such statements could able “right to be forgotten” adopted in the Abrams observes that having broad First have formed the basis of criminal liability European Union. Abrams explains that the Amendment rights does not answer the in America. Germany, as well as other na- source of the right was a 2014 decision of important questions of when and what tions, have adopted laws criminalizing Ho- the European Court of Justice that deter- to publish. In what became known as the locaust denial. Abrams is measured in his mined that Google and other search en- Pentagon Papers Cases, the majority of the discussion of these laws, recognizing that gines must remove links to content initially Supreme Court in New York Times v. United some nations have responded to its past ca- published in newspapers or elsewhere that States7 found that prior restraints could be lamities by adopting limitations on hateful discloses information that is later deter- issued under only extraordinary circum- speech. However, in Abrams’s opinion the mined to be inadequate or irrelevant. Truth - United States Constitution, which imposes and accuracy are not determinative factors fusal of the lower courts to enjoin The New limitations on this type of legislation, has stances and, accordingly, affirmed the re in deciding what needs to be removed. York Times and from served this country well. More than 95 percent of the requests for - With respect to libel law, Abrams explains removal are from ordinary members of the ing that the United States government had publishing classified information show that England has become a legal paradise - engaged in widespread public deception als, such as politicians or criminals. Google, for plaintiffs bringing libel suits with suc- public, as opposed to high profile individu about the nations involvement in the Viet- cess rates of over 90 percent. In England, according to Abrams, considers the public nam war. Abrams recalls that as an attorney interest in its search results in responding defamatory statements are presumed false for he was criticized to the requests for removal; if for instance, for being unpatriotic. He continues the their truth. Of interest is that Cambridge the matter related to criminal convictions, discussion by offering his views on Julian and the defendant must affirmatively prove - University Press declined to publish a book Assange and Edward Snowden. Assange al negligence, or the conduct of public of- accusing Vladimir Putin of having connec- matters of financial dishonesty, profession tions to gangsters. Cambridge explained defends publishing classified information that it could not risk a libel suit. The book ficials. It is Abrams’ view that Americans that his job is to pass the “whistleblowers” could issue an order similar to the Europe- on WikiLeaks; specifically, he contends was never published in England; it was message onto the public and not to inject ancan “right feel confident to be forgotten,” that no whichAmerican would court be published in the United States and no liti- - consistent with the First Amendment. gation ensued. Abrams reasons that there fense unconvincing since it does not consid- his own beliefs. Abrams finds Assange’s de would be little concern of a libel suit in the Abrams defends the decision of Citizens er the impact of the disclosed information, United States because the Supreme Court United v. Federal Election Commission,5 a including the identities and locations of in- in New York Times Company v. Sullivan4 held case that he has great familiarity with be- formants on the Taliban. WikiLeaks has ad- cause he represented Senator Mitch McCon- he or she must prove by clear and convinc- nell in the litigation. He reminds the reader disclosed personal identifying information that in order for a public official to prevail ditionally, without compelling justification, ing proof that the false statement was made that Buckley v. Valeo6 held that individuals of Democratic Party donors. Snowden, in with actual knowledge of falsity or actual can speak in support of candidates for pub- Abrams’ opinion, deserves credit for expos- malice. According to Abrams, the gulf be- ing the fact that the government engaged in

lic office and they can also spend whatever Connecticut Lawyer March/April 2018 31 surveillance of Americans. However, other of the answers. He states that the Ameri- be listened to as the limits of free speech Snowden revelations may have also com- - continue to be debated. CL promised critical foreign intelligence col- ing what to publish. However, as Abrams can press has significant latitude in decid lections sources. Abrams notes that the ed- stresses, the First Amendment does not itors of The New York Times made decisions answer the question of what should be James E. Wildes has been a to publish some portions of the Pentagon printed. Abrams importantly acknowledg- litigator for more than 29 years Papers, but also made decisions not to pub- es the limits of the written words of a con- and has served as an arbitra- stitution. Indeed, continued respect by the tor and an attorney trial referee lish other documents due to their sensitive of the superior Court since nature. American public of the First Amendment, 2003. He has also been an as with all constitutions or laws, will de- instructor/facilitator for cours- Abrams explains in the beginning of his pend on whether it is deemed a core value es on advanced direct and cross-examination of experts book that the soul of the First Amendment to Americans. Judge Learned Hand in his and on advanced deposition is freedom of speech. If a book is measured often anthologized speech, The Spirit of Lib- techniques. Attorney Wildes by whether the author accomplished what erty, captured the essence of the soul of any is a former editor-in-chief and the author attempted to do, then Abrams law that endures. managing editor of the Con- succeeds. Abrams raises important free- necticut Bar Journal. dom of speech questions at the beginning I often wonder whether we do not rest our hopes too much on constitutions, of his book and throughout the book he ex- upon laws, upon courts. These are plores the issues through his analytic lens. Notes false hopes; believe me, these are false A reader who is only generally familiar hopes. Liberty lies in the hearts of men 1. 562 U.S. 443 (2011). with the First Amendment will broaden his and women; when it dies there, no 2. 559 U.S. 460 (2010). or her knowledge of free speech. A reader 3. 535 U.S. 234 (2002). constitution, no law, no court can save 4. 376 U.S. 254, 276 (1964). who is informed about the First Amend- - 5. 558 U.S. 310 (2010). ment is likely to come away with a deeper 6. 424 U.S. 936 (1976). stitution, no law, no court to save it.8 understanding of free speech. To his credit, 7. 403 U.S. 713 (1971). it.…While it lies there it needs no con 8. Diane Ravitch, The American Reader, 287-88 Abrams does not pretend that he knows all Abrams is an important voice that should

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32 Connecticut Lawyer March/April 2018 Visit www.ctbar.org