In His Memoir, Lawyer Abrams Decries Encroachments on Free Speech

Forty-nine percent of registered voters nationwide would like to see former New York City mayor Rudolph Giuliani seek the presidency in 2008, and 51 percent would like to see Sen. John McCain, R-Ariz., run for the White House, according to a survey released by Marist College in May. For anyone who has read Floyd Abrams’ recently released memoir, “Speaking Freely: Trials of the First Amendment,” these poll figures are frightening.

Among the biographical similarities between Giuliani and McCain: both men are divorcees and recent prostate cancer survivors; both men list Theodore Roosevelt as their role model; and—most significantly—both men have displayed an appalling disregard for the First Amendment’s free-speech guarantee.

It’s for the last reason that they both figure prominently in Abrams’ memoir, which recounts the author’s career as a high-profile First Amendment lawyer.

LIFE AND TIMES

Abrams rose to national prominence as an attorney for the New York Times in the 1971 Pentagon Papers case, in which the Nixon administration sought to block the Gray Lady from printing a classified report on the Vietnam War. The Times won the case—in part, according to Abrams, because Nixon’s lawyer, Solicitor General Erwin Griswold, performed “lamely” in front of the Supreme Court. (Griswold, a former Harvard Law School dean, will go down in the history books for being on the wrong side of the high court’s 6-to-3 landmark decision. But here on campus, he will be forever known as the namesake of the supremely ugly gray brick office building northwest of the Science Center.)

RED-NOSED RUDOLPH

From the Pentagon Papers victory, Abrams traces the trajectory of his own career, which was marked by victories defending broadcasters and print journalists in several landmark libel lawsuits. Then, on page 188, Giuliani enters Abrams’ narrative, and the plot thickens.

“When recent college graduates were polled late in 2002 about whom they wished to emulate most in the world, their first two choices were their mothers and their fathers,” Abrams writes. “The third was Rudolph Giuliani.” But, the author continues, “I knew a different Giuliani…a Giuliani deeply contemptuous of the First Amendment.”

In some instances, Giuliani behaved like a Third World despot, barring political opponents from staging public protests. In other cases, the mayor’s behavior was, according to Abrams, simply “bizarre.” In 1997, the weekly magazine New York placed ads on city buses proclaiming—in jest—that the glossy periodical was “probably the only good thing in New York that Rudy hasn’t taken credit for.” Giuliani tried—and failed—to get a court to stop the magazine’s publicity campaign. The mayor argued that the ads violated his “privacy rights.”

Most notoriously, Giuliani blasted the Brooklyn Museum of Art in 1999 for exhibiting a painting entitled “The Holy Virgin Mary” that used elephant dung and pornographic images as compositional elements. Of course, almost everyone agrees that if the museum were a private entity it would have the right to display whatever it wanted. But Giuliani argued that the city could cut off public funding to the museum in response to offensive exhibits. “The city should not have to pay for sick stuff,” he told reporters at the time.

Maybe he’s right, but Supreme Court precedent unambiguously prohibits government agencies from withholding subsidies to groups in retaliation for the expression of controversial ideas. Abrams represented the museum as it fought to forestall Giuliani’s funding cuts, and federal courts ruled against the mayor. “I still believe that Giuliani knew perfectly well that First Amendment law made his conduct lawless,” Abrams writes. “He was, after all, a graduate of Harvard Law School,” Abrams notes on page 224. This is not true: Giuliani earned his J.D. from New York University in 1968. Yet Abrams’ error here is a rare deviation from an otherwise carefully constructed account.

THE MARK OF MCCAIN

When Giuliani sought to rein in free expression in Brooklyn, he lost—and was humiliated. When McCain sought to curb free speech nationwide, he won—and was lionized.

In 2002, Congress passed the McCain-Feingold campaign finance reform act by wide margins: 60-40 in the Senate, and 240-189 in the House. President Bush signed the act into law that same year. In other words, McCain was not alone in steamrollering the First Amendment. But the fact that the Arizona senator is a charismatic figure who convinced others to join him in his attack on free speech is, if anything, even more unnerving.

Under McCain-Feingold’s provisions, for a 60-day period before any federal general election—or a 30-day window before a primary—ads paid for by unions, corporations, and non-profit groups cannot even mention the name of a candidate for office within the area where the candidate is running. For instance, if McCain seeks the White House in 2008, then the American Civil Liberties Union, which opposes the ad restriction, would not be able to run a radio spot criticizing the McCain-Feingold law by name in the month before each state’s presidential primary.

That’s not the worst of it. Under McCain-Feingold, the publisher Penguin was barred from promoting Senator John Kerry’s book, “A Call to Service,” during the run-up to last year’s election. And as a result of the law, Lions Gate, distributor of Michael Moore’s documentary “Fahrenheit 9/11,” pulled some of its ads for the film before the Republican National Convention. Why? The ads had featured President Bush hitting a golf ball. The mere image of Bush in the ad ran afoul of McCain-Feingold.

I would concede that in extreme circumstances—say, if national security were really at risk—we might consider abridging the freedom of speech. But in a December 2002 deposition, McCain justified the campaign finance law simply on the grounds that it serves to eliminate “the appearance of corruption.” Thus McCain sets a dangerously low bar for First Amendment abridgement. Unfortunately, the Supreme Court, by a razor-thin 5-4 vote, upheld the law on Dec. 10, 2003. That day may go down in history alongside other judicial low points, like May 18, 1896, when, in the case of Plessy v. Ferguson, the Court ruled that states could maintain “separate but equal” facilities for whites and blacks. As one of the more moderate justices, Anthony Kennedy, wrote with regard to McCain-Feingold: “Never before in our history has the Court upheld a law that suppresses speech to this extent.”

JUMPING THE GUN

Chalk June 27, 2005, as another date that may live in Supreme Court infamy. On Monday, the justices rejected an appeal by two reporters, the New York Times’ Judith Miller and Time magazine’s Matthew Cooper, who refused to disclose the names of confidential sources to a grand jury investigating the leak of a CIA operative’s identity. Abrams is the duo’s lawyer. He may be “speaking freely,” but his clients could soon find themselves behind bars. Just yesterday, Time said it would release Cooper’s subpoened notes to a judge, while the New York Times continues to hold out from the court order.

If journalists can’t keep their sources’ names confidential, then informants won’t talk. Reporting on governmental and corporate scandals—in which sources are likely to be fired if their names are revealed—will become well nigh impossible. Newspapers will be relegated to reeling off human interest stories and boilerplate press releases. It will be like turning the New York Times into the Harvard Gazette.

On the one hand, Abrams published his memoir at an opportune moment. It came on the eve of the Supreme Court’s stunning blow to the freedom of the press. And it arrives in stores as politicians who seem unconcerned with the First Amendment—namely Giuliani and McCain—dominate opinion polls.

But on the other hand, this reviewer must caution readers about purchasing Abram’s memoirs prematurely. With threats to the First Amendment looming, Abrams—still an actively practicing attorney 45 years after graduating from Yale Law School—will certainly be a figure in the coming fights. A “Speaking Freely: Second Edition” might soon be in order.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.