A Litigator Tells His Story-And Defends the Right to Do So

Speaking Freely: Trials of the First Amendment, by Floyd Abrams. Viking, 306 pages, $25.95.

It’s hard to think of a practicing attorney more consistently associated with any single area of litigation than Floyd Abrams and the First Amendment. Since successfully representing The New York Times over 30 years ago in the Pentagon Papers case, he’s been the go-to guy for media companies seeking either to defend free-speech principles or to avoid paying huge sums to unhappy news subjects.

In Speaking Freely, Mr. Abrams seems to have two related objectives. First, and primarily, he means to provide an engaging account of certain cases he has tried since 1971. Second, he wants to provide an explanation and justification of his philosophical transformation during this period.

When he began practicing law, Mr. Abrams’ views were “greatly influenced” by Justice Felix Frankfurter, who “often treated the press more as an irresponsible and even dangerous nuisance than as an institution that could legitimately benefit society.” Today, within a constitutional framework that provides many protections to the individual citizen, Mr. Abrams’ views are closely aligned with those of the ACLU, which treats speech not as an important freedom but as the freedom that “should outweigh all but the most vital competing societal interests, and even then only in the narrowest of circumstances.”

Mr. Abrams is quite successful at chronicling his career. It may help that I’m a bit of a trial junkie, but he paints a vivid portrait of the players, the strategies and the drama underlying a handful of well-chosen cases. Even where the trial has no significant jurisprudential import, Mr. Abrams manages to hold our interest and our sympathy. This is certainly true when investigator Jules Kroll manages to dig up a credible witness to a 20-year-old drug deal in the midst of a long-delayed libel trial initiated by a supposedly innocent Turkish businessman who had been described as a heroin trafficker in a Pulitzer Prize–winning Newsday series. It’s equally true when we watch famous red-baiter Victor Lasky self-immolate on the stand in his disastrous libel suit against ABC.

Although he bends over backwards, as any good free-speech defender must, to commend those who thoughtfully articulate views different from his own, Mr. Abrams doesn’t sugarcoat his opinion of the litigants, counsel or judges with whom he has tangled. Characters as diverse as Wayne Newton and Rudolph Giuliani come in for fairly devastating-and compelling-criticism. Even the much-beloved Senator John McCain is deliciously skewered as basically unfit for high public office.

Significantly less successful are Mr. Abrams’ efforts to convince us that his conversion to absolutist defender of First Amendment rights is rooted in more than the tendency shared by many lawyers “to persuade themselves of their clients’ virtues.” A number of Mr. Abrams’ own observations seem to undercut his position that this Constitutional right is worthy of some special status relative to others. For instance, he notes that much of what we take for granted as settled First Amendment law only came about as a result of Supreme Court cases decided since the 1960’s. Furthermore, he grants that the framers had no very clear idea of what they meant by the broad requirement that Congress enact “no law abridging the freedom of speech or of the press.” Mr. Abrams points out that in the early days of the republic, both Congress and the courts assumed they had the power to restrict all sorts of speech that today would be protected. None of this seems to support a Constitutional jurisprudence that puts the First Amendment first not only chronologically but in all other respects as well.

Giving Mr. Abrams the benefit of the doubt, one might interpret his argument as being based on policy considerations rather than constitutional law. He ends his book with some observations comparing speech protections in the U.S. to those of other democracies such as Canada, England, France, Germany and Israel. If the cases discussed here had been brought in those other nations, Mr. Abrams concedes, he might not have won any of them. This admission undercuts the so-called “slippery slope” argument that free-speech advocates trot out to justify the broadest possible scope of protection: Curtail free speech, we’re told, and we’ll be on a “slippery slope” to fascism. There are plenty of reasons why I’m happy not to be Canadian, but this isn’t one of them.

Mr. Abrams makes the comparison with other democratic nations in order to highlight the single arena in which the U.S. seems to offer less speech protection: journalists seeking to protect confidential sources. This issue is of particular interest to Mr. Abrams because he’s currently representing The New York Times’ Judith Miller and Time’s Matt Cooper, who face possible jail time for failing to reveal their sources in connection with an investigation into the “outing” of undercover C.I.A. agent Valerie Plame. Mr. Abrams cites a European Court of Human Rights ruling for the proposition that protecting sources is important-otherwise they might be “deterred from assisting the press in informing the public on matters of the public interest.”

The ruling cited by Mr. Abrams won’t be of much help to his clients. The European Court also noted that revealing sources could be “justified by an overriding requirement in the public interest.” In the Valerie Plame case, the reporters were not uncovering government wrongdoing-the leak itself was the wrongdoing. Congress passed a law that made it illegal to disclose the names of undercover agents. Enforcing that law sounds to me like a “requirement in the public interest.”

If Congress had wanted to make exceptions, it certainly could have-but any loophole that allowed this situation would have gutted the law. And Congress never provided a blanket exemption shielding reporters from the obligation we all share to assist in grand-jury investigations. If these conditions “deter” someone from illegally disclosing the name of an undercover agent to a reporter, there’s no great loss to society. Mr. Abrams position here is weak-in fact, it was sweepingly rejected by a Feb. 15 federal appeals court decision. Even the avowed “First Amendment extremists” at Slate.com have urged Ms. Miller and Mr. Cooper to fire Mr. Abrams and hire instead someone who will quietly cut a deal with the prosecutors.

Floyd Abrams is a litigator, not a politician, historian or philosopher. And if his book is any indication, he’s remarkably effective: The best litigators are great storytellers, and the stories this litigator tells here are intrinsically interesting and provide the framework for understanding how the U.S. came to have the broadest free-speech protections of any democracy in the world. And yet one closes the book with the sense that it easily could have turned out differently-and that the story is not quite over. How the press and others use our unprecedented level of freedom in the future will undoubtedly determine how the courts and Congress change the contours of what we’re at liberty to say.

Jonathan A. Knee is a senior managing director at Evercore Partners and the director of the media program at Columbia Business School.