On Festival Saturday of the Savannah Book Festival, Floyd Abrams gave a lecture about his latest book, “The Soul of the First Amendment.” Abrams is a first amendment lawyer whose career has seen some of the most controversial cases dealing with free speech, such as the Pentagon Papers case, for which he represented the New York Times.
“It is difficult to believe,” Abrams began, “how close we came in this country to not having a Bill of Rights at all.”
In 1787, when the framers met in Philadelphia to draft a constitution, there was a 10 to nothing vote against adding a Bill of Rights or any kind of protection of freedom of speech or press because they didn’t think it was necessary or even safe to start listing the things that the new Government could or could not do.
Thomas Jefferson, however, was one of many to argue that all people were entitled to the rights listed in the Bill of Rights and, soon, it became clear that a number of states would not sign the Constitution without a Bill of Rights.
What distinguishes the United States’ Bill of Rights from so many others is that it, and the Constitution as a whole, serves as a legal document. “It is not Jefferson’s poetry in the Declaration of Independence, it is not revolutionary rhetoric; it is a hard fought out, hard negotiated document specifying what the government could do and what the government couldn’t do,” Abrams said.
He pointed out the starkness of its language but also acknowledged that language alone didn’t turn the tide.
“Let me read you the language from another country’s constitution which says, ‘Citizens are guaranteed freedom of speech, of the press, of assembly, of demonstration and association.’ Now that,” Abrams paused, “that’s North Korea.”
Image courtesy of the American Library Association.
Most of Abram’s book explores how different the United States is in the expansiveness of our protection of freedom of speech and of the press as compared to other democratic countries.
For instance, a school system in Saskatchewan, Canada taught a course about homosexuality and an individual printed out leaflets denouncing gays for trying to teach children to become gay and put them in mailboxes all over the town. Those actions were held to violate the Canadian law against hate speech and was upheld by the Canadian Supreme Court.
Abrams contrasted that with the Westboro Baptist Church case which involved groups who stood as near a church they legally could and held up signs denouncing dead American soldiers, arguing that God was rightfully punishing the country because it was too soft on gay people. The Supreme Court ruled that it was political speech and the first amendment does not allow the banning of such speech.
“I say this nonpolitically,” Abrams said, “but some of the things President Trump said in his campaign would be criminal throughout Western Europe. We protect such speech here.”
Abrams spoke about his experience on the Pentagon Papers case in 1971 when a 7,000 page document about how the United States entered into war with Vietnam was prepared from defense department files and leaked to the New York Times.
The Times started to publish articles and the Nixon administration took them to court. Abrams and the Times won the case on the grounds that it was nearly impossible for the the government to give an order barring the publication of something and harder still to prosecute such action as a criminal case.
Abrams briefly touched on the espionage act, a century year old act that has been framed so broadly, it could be used to challenge a lot of what we routinely read in our newspapers about the government.
“The President’s daily denouncements of the press, sometimes at extremely strong terms, give me pause but a law less protective of free expression would give me even more pause,” Abrams said.
“Other countries have had such legislation,” he continued. “One comes to mind in the 1920s that had a law that said false statements about the government were punishable by time in jail or fine. That was Mussolini in Italy in the 1920s.”
Abrams noted that the level of protection afforded by the first amendment not only dwarfs other countries’ but itself. “As we go back historically, we have expanded protection enormously in the last fifty and more years.”
“The Supreme Court has become increasingly non-divisive on political social grounds,” Abrams said. “A lot of cases are now nine to nothing or eight to one in favor of protection of absolutely awful speech. I mean terrible, horrible, morally indefensibly and, sometimes, harmful speech, but not as harmful as the suppression of it.”
By Elena Burnett.
Elena Burnett is the Editor-in-Chief of District. She’s a writing major who will graduate in 2019.
