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Speaking Freely: Trials of the First Amendment
Reviewed by: Lee Levine
The prospective readership of Speaking Freely, Floyd Abrams' memoir recounting his battles on behalf of the First Amendment, can logically be divided into two general categories – those who come to the book with a grounding in its subject matter, and those who do not.

Book for lawyers & laypeople

For the first group, which the late Yale Law Professor Alexander Bickel refers to in one of the book’s early chapters as the “First Amendment voluptuaries,” Speaking Freely is a sweet, nostalgic and often poignant journey over familiar ground. From its opening chapters recounting the author’s pivotal role in the Pentagon Papers case (1971), to its closing chapter’s warnings about the fate of the reporter’s privilege, Speaking Freely demonstrates that the modern history of the freedom of the press in this country is intimately associated with the career and work of Floyd Abrams.

Surely, either Mr. Abrams or Justice William Brennan is the most pivotal figure in the formation of contemporary First Amendment jurisprudence defining the freedom of the press. There are strong arguments to be made for both of them. Together, they dominate the field. It is therefore only fitting that Mr. Abrams currently occupies a chair named for the late Justice at the Columbia University School of Journalism.

As Speaking Freely chronicles, characteristically without boast and with more modesty than is warranted, Mr. Abrams came of age as a lawyer in the late 1960s, only a few short years after the Supreme Court decided New York Times Co. v. Sullivan (1964), and has been at the forefront of major cases adjudicating the First Amendment rights of the press ever since, from the Pentagon Papers and Branzburg v. Hayes (1972), to Landmark Communications v. Virginia (1978) and Smith v. Daily Mail Publishing Co. (1979), to Nebraska Press Association v. Stuart (1976).

Reading this account of Mr. Abram’s role in the formation of the constitutional law governing the press, the knowledgeable reader experiences, by turns, the vicarious exhilaration of the advocate debating, honing and implementing his legal strategy; the pride of the civil libertarian in celebrating the unique freedoms the Constitution affords the American citizen to, as the book’s title asserts, “speak freely;” and, ultimately, a sense of the enormous gratitude that we all owe to this one man for the wisdom with which he has discharged the responsibility that fate placed upon him to safeguard those freedoms some 35 years ago.

At this juncture, a brief disclaimer is in order. I have known Floyd Abrams since 1978 when I was a student in the First Amendment seminar he then taught at Yale Law School. In recent years, I have worked alongside him with some frequency, including in litigating some of the cases cited in Speaking Freely. For me, the book captures perfectly the two principal reasons that I have come to believe that those lawyers fortunate enough to represent the press in court are truly blessed. First, as the opening chapters chronicling the Pentagon Papers, Landmark and Smith cases illustrate, the “First Amendment lawyer” – a term that simply did not exist until it was invented to describe what Mr. Abrams does for a living – must make decisions that have consequences, not just for clients and not just for the law, but for the reach of the Bill of Rights itself. If Mr. Abrams and Professor Bickel had made different strategic choices in the Pentagon Papers case, if Mr. Abrams had not articulated a theory for the protection of truthful speech about matters of public concern that became the Supreme Court’s Daily Mail principle, we would all be considerably less free today.

Second, in the book’s middle chapters, that recount three of his libel trials on behalf of NBC, ABC, and Newsday, Mr. Abrams deftly evokes the “contest” that is litigation, the intensity and emotional jolt that surrounds representing a real client in battle against skilled adversaries. In this regard, he has chosen three excellent examples. In their own way, each one demonstrates why libel suits against the press must be the very best cases to litigate – the subject matter is almost always interesting, the cast of characters invariably colorful and often fascinating and, more often than not, the “good guys” and the “bad guys” are easy to spot.

That last observation – about the good guys and the bad guys – brings me to the second group of Speaking Freely’s potential readership – the First Amendment neophytes. I sincerely hope that this audience finds and reads this book for two important reasons. First, Speaking Freely sets forth, clearly and plainly, the fundamental principles that undergird the First Amendment-based protections that currently surround the American press. As presented in these pages, their simple logic is impossible to resist. It should be required reading for lawyers, law professors and even judges who, as the Pentagon Papers case becomes an ever more distant memory, increasingly appear to have forgotten both why and how the Constitution values a free press.

Second, in an era when it is fashionable to disparage the media for its errors and excesses, Speaking Freely shows (but is careful not to “tell”) that the American press and the journalists that comprise it remain a national treasure that are, much more often than not, “the good guys.” Reading about Mr. Abrams’ successful representations of NBC’s Brian Ross and Ira Silverman against Wayne Newton, of Newsday’s Bob Greene, Les Payne and Knut Royce against Mahmut Karaduman, and of ABC’s Helen Whitney against Victor Lasky, one is reminded that for every Jason Blair there are literally hundreds of dedicated journalists out there who work hard every day to speak truth to power and thereby protect our democracy. (Another disclaimer – my law firm currently represents Mr. Royce in another libel case).

Valuable lesson

Finally, there is also a valuable lesson in Speaking Freely for the First Amendment voluptuaries among us, a lesson drawn deftly in the book’s penultimate chapter about campaign finance reform. In it, with the skill of a surgeon, Mr. Abrams powerfully exposes the illogic and, ultimately, the hypocrisy of those who purport to cherish free expression but at the same time advocate governmental restrictions on truthful speech about public matters during election campaigns. As Mr. Abrams demonstrates, there is simply no principled way to reconcile legislation like the McCain-Feingold law with the First Amendment and those, in Congress and in the press, who pretend otherwise do a great disservice to the democratic values they purport to serve. That Mr. Abrams had the political courage to take on that unpopular cause (McConnell v. Federal Election Commission (2003)), as co-counsel to Senator Mitch McConnell, and to write about it in his memoir, speaks volumes about his own fearless devotion to the freedom of expression.

Lee Levine is a partner at Levine Sullivan Koch & Schulz, L.L.P., in Washington, D.C. and an adjunct professor at Georgetown University Law Center. He is the co-author of Newsgathering and the Law (2d ed.1999 & Cum. Supp. 2003) and has argued Bartnicki v. Vopper (2001) and Harte-Hanks Communications v. Connaughton (1989) in the Supreme Court.
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