Floyd Abrams & the First Amendment: Enter Alex Bickel

Sometimes Fortuna deals a hand that forever changes the arc of one’s life. And so it was when Floyd Abrams met a remarkable man from Romania.

After graduating from Cornell in 1956, Floyd Abrams ventured to New Haven to study law at Yale Law School, home of many renowned constitutional law scholars. Once there, Abrams was assigned (alphabetically) to a first-term constitutional law course with Professor Alex Bickel, who had just begun to teach at the law school. Abrams also had advanced courses in constitutional law from Thomas Emerson (a prominent First Amendment scholar), and Fred Rodell (a noted proponent of Legal Realism). But the one who left an indelible impression on him was the Romanian man — Alex Bickel.

Alexander Mordecai Bickel (1924-1974) taught at Yale Law School from 1956 until his death. A respected constitutionalist, Bickel had clerked for Justice Felix Frankfurter and had also prepared a historical memorandum in Brown v. Board of Education. Bickel’s immense influence on Abrams extended beyond the classroom and into the courtroom where, in later years, the two worked alongside one another in important First Amendment cases, this though some of their views on the general subject could be quite different. That said, and despite all his liberal and libertarian First Amendment credentials, there is a residue of Bickel moderation in Abrams, a cautious side leery of starry-eyed approaches to constitutional law.

“There are no absolutes that a complex society can live with in its law.” That was Bickel’s mantra. He was nothing if not categorical in his claim that treating “law as language . . . merely obscures the actual process of decision.” Even so, it is well to keep in mind what the Court declared in the Pentagon Papers Case (1971), the case that Professor Bickel argued (with young Abrams as co-counsel) on behalf of the New York Times and against the security claims advanced on behalf of the government by Solicitor General Erwin Griswold.

The near-absolutist rule announced by the majority was, most assuredly, one that erred more on the side of freedom. Said the Court: “‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’” Furthermore, “[t]he Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’” The point here is that the result obtained, though not couched in absolutist terms, was but a hair’s breadth away from such absolutism. And it was Bickel and Abrams who made that result possible.

What is also noteworthy about the Pentagon Papers Case is Justice William Brennan’s special concurrence in the case. Though Brennan was not an absolutist, his concurrence ratcheted up the kind and degree of proof the government must offer in order to make a bona fide case that our national security was actually at real risk. In this way his opinion certainly resonated with a kind of nuanced absolutism. That concurrence and the posture of the ruling in the case, maintained Abrams, “was breathtaking. To obtain ‘even the issuance of an interim restraining order’ the government was obliged to prove the publication ‘must inevitably, directly and immediately cause the occurrence of any event kindred to imperiling the safety of a transport already at sea.’” “Here we see,” adds Mr. Abrams, “a non-absolutist reading of First Amendment principles that affords virtually absolute protection.”

That same year the team of Bickel & Abrams filed an amicus brief on behalf of the New York Times in Branzburg v. Hayes (1972), the case in which the Court had to decide whether there was a First Amendment testimonial privilege for reporters who declined to testify before a grand jury. Though the Justices split 4-1-4 (with Byron White for the plurality, Lewis Powell concurring, and William O. Douglas in dissent), the views of the dissenters were far closer to those of Bickel and Abrams. Here again, the ever-cautious Bickel (aided by Abrams) took constitutional chances not otherwise characteristic of him.
Start there, with those two cases, and you will get a sense of the nuanced absolutism mindset that later informed so much of Abrams’s First Amendment thinking. Perhaps, the nuance is what he learned first and foremost from his beloved professor. As for the near-absolutist side of the equation, well, that is more Floyd Abrams’s addition to the constitutional mix.

Strange how life plays out . . . and how a foreign-born professor taught a young American something fundamental and lasting about freedom.

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