A Few Words About “Friend of the Court”

Floyd Abrams was invited to say a few words about his latest book Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013). His comments are set forth below.

When one tries to determine which of his articles, speeches, testimony, letters, reviews and the like over a 45-year period are worth publishing in book form, the choices are not easy. It’s not that there are so many imperishable morsels; passing the ugly question of whether anything is worth publishing, there remains the far more prosaic issue of which issues remain live ones, and which positions are worth rearguing.

I had, for example, been dubious about whether to include my 2005 testimony before the Senate Committee on the Judiciary in favor of adopting a federal shield law for journalists and more dubious still about including a 1979 speech (the oldest offering in the book) about the same subject. But I thought the issue, rather quiescent in the past few years, could well resurface in the years to come — and then came the Department of Justice with its breathtakingly subpoenas to the telephone companies that serve Associated Press. I cannot offer thanks, but I am appreciative.

So, too, with privacy issues. The conflicting claims of disclosure and privacy have led to far less litigation than I had expected. I decided, nonetheless, to include a speech I gave that is quite critical of the most celebrated and cited law review article ever written, the classic Brandeis-Warren paean to privacy published in the Harvard Law Review in 1890. The renewed discussion, after the terrorist explosions at the Boston Marathon this year, about the amount of cameras that film so many of our activities, has led to renewed discussion of various aspects of privacy and I am pleased that I included at least one article of mine weighing in on the subject.

Probably the most eclectic chapter in Friend of the Court is the first which deals, in a variety of ways, with state censorship. The first entry , one of my favorites, is an introduction I wrote to a book of New York Times articles published throughout the twentieth century about censorship here and abroad.

Starting with the observation that “[t]here is a terrible logic to state censorship,” I seek to summarize highpoints of a book which brims with life as it describes in real time political censorship in Hitler’s Germany and Stalin’s Soviet Union, theatrical censorship in England and France, and what would now be viewed as unthinkable censorship in our own nation.( A laconic description of a hearing in New York in 1921 in which a “story entitled ‘Ulysses’ “ which was “the product of one Joyce” was ordered banned because “parts of the story seemed to be harmful to the morals of the community” is particularly memorable). From there, the book moves to a debate I had with Professor Catherine MacKinnon about censorship, chaired by Anthony Lewis, to congressional testimony about free trade in ideas; a summary of the Brooklyn Museum case; two book reviews; and a letter defending the ACLU against charges that it had wrongfully defended Nazi speech in the Skokie Case. It is a busy chapter.

Other chapters are narrower in scope, dealing with American free speech law vis-à-vis that of other nations (particularly the United Kingdom); the First Amendment and national security; and libel, privacy, copyright and other areas of continuing conflict. Particularly controversial, I suppose, is my defense (sometimes a lonely one) of the Citizens United ruling and my criticism of Julian Assange for what I believe to be his repeated recklessness in determining what documents to release.

A number of the offerings include significant criticism of the press and sometimes its purported defenders. In that respect, a major theme of the book is my concern about what I believe is the far too politicized way First Amendment views are formulated and expressed. Historically, the American Right has been either indifferent to First Amendment claims or resistant to them. In more recent days, however, the Right has supported First Amendment claims that have been consistent with its adherents’ ideological overview. Motivations aside, I think this has served First Amendment interests well. At the same time, the Left has seemed to me far too prepared to subordinate libertarian First Amendment interests to other interests.

I quote twice in the book from a passage of Isaiah Berlin that I find particularly powerful: “Everything is what it is: liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.” I criticized The Nation, for example, for complaining that the “wrong side” keeps “winding up with the First Amendment in its corner” and urged it to rethink its “political positions to avoid being on the wrong side of the First Amendment.”

I conclude Friend of the Court with a plea to all that I believe is consistent with the whole book: “Is it really too much to ask that those who claim that they care about the First Amendment—everybody, that is—stand in favor of free speech even when the speech at issue pains them ideologically?”

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