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Since 1971, when the Pentagon Papers were leaked to the New York Times and furious debate over First Amendment rights ensued, free-speech cases have emerged in rapid succession. Floyd Abrams has been on the front lines of nearly every one of these major cases, which is also to say that, more than any other person, he has forged this country’s legal understanding of free speech. Litigating everything from national-security and prior-restraint issues to controversies concerning the law of libel and attempts by ...
Since 1971, when the Pentagon Papers were leaked to the New York Times and furious debate over First Amendment rights ensued, free-speech cases have emerged in rapid succession. Floyd Abrams has been on the front lines of nearly every one of these major cases, which is also to say that, more than any other person, he has forged this country’s legal understanding of free speech. Litigating everything from national-security and prior-restraint issues to controversies concerning the law of libel and attempts by local officials to censor art, Abrams has worked devotedly to protect the First Amendment, the “crown jewel” of America’s Constitution.
This collection of Abrams’s writings gathers speeches, articles, debates, briefs, oral arguments, and testimony from his entire career. The writings illuminate topics of ongoing import: WikiLeaks, the correctness of the Citizens United case, journalist shield laws, and, not least, the responsibilities of the press. An exceptional writer and a brilliant thinker, Abrams offers a unique perspective on the First Amendment and the unparalleled rights it confers.
The Vice of Censorship
Censorship comes in infinite forms, and I have offered commentary about it in a wide range of places. In this chapter, I describe a number of actual or attempted acts of censorship that I have addressed or commented upon. First is an introduction I wrote to a book containing over five hundred pages of articles from the New York Times published during the twentieth century describing state censorship of one form or another throughout the world. This is followed by a wide-ranging debate about censorship on and off campus I had with Professor Catharine MacKinnon, one of the nation's leading scholars on sexual harassment, chaired by Pulitzer Prize–winning journalist and author Anthony Lewis, and published in the New York Times Magazine. That, in turn, is followed by excerpts from a speech I gave at the University of Denver in 2004 about the constitutional protections (or lack of them) for the use of expletives on radio or television and a defense I offered to criticism of Howard Stern. Next is testimony I gave to a congressional committee in 1989 criticizing, among other laws, provisions of the McCarran-Walter Act banning, on ideological grounds, certain foreign speakers from visiting and speaking in the United States. That is followed by a speech about the Brooklyn Museum case, one involving New York Mayor Rudolph Giuliani's unsuccessful efforts to strip one of New York's great cultural landmarks of funding because he disapproved of one of the works of art in an exhibition. I then offer two book reviews. This first, an admiring one, is about a superb text on the First Amendment written by University of Chicago professor Harry Kalven. I then offer a less than favorable review of a serious but, I thought, misguided book about censorship of the arts entitled The Repeal of Reticence. Finally, I include a letter I wrote defending the ACLU for representing Nazis.
Introduction to Political Censorship (ed. Robert Justin Goldstein, Taylor & Francis, 2001)
There is a terrible logic to state censorship. Joseph Goebbels understood it well. If free speech and a free press interfere with the ability of a state to act as it pleases, why not suppress the speech and stifle the press? That logic led Goebbels to instruct German publishers in 1937 that their role was "not to inform but to shake up and spur onward" and that they must be "monoform in will" even as they were permitted to be "polyform in expressing that will."
The same logic was routinely applied throughout the twentieth century by authoritarian governments far less dedicated to the brutal destruction of free expression than was Goebbels' Germany. In 1937, Brazil as well was ruled by a military government. The country was at war. Why not, then, establish a censorship regime and why not make it (as The New York Times observed) "one of the most efficient censorships ever devised in South America"? Why not censor, as Brazil did, all outgoing and incoming boat and air mail? Why not bar, as Brazil did, any newspaper from criticizing the government in power?
The logic of censorship begins with an unexceptionable notion: speech matters. People can be persuaded by it, moved by it, spurred to action by it. Twentieth century governments understood this. They understood, as Justice Oliver Wendell Holmes once observed, that "persecution for the expression of opinions" is "perfectly logical." "If you have no doubt," Holmes wrote, "of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition."
Holmes, of course, was not advocating such conduct. In the same paragraph in which he articulated the logic of censorship, he denounced it, urging that "free trade in ideas" be permitted. But throughout the twentieth century, state censorship often seemed not only logical but inevitable. The form that censorship took varied, but its essence remained constant. Consider the 1925 Hungarian decree that required all crossword puzzles to be submitted to a censor prior to publication after a solution to one puzzle read "Long Live Otto." Or the 1946 ruling of an American general, acting as chief censor in occupied Japan, to delete from the English-language Nippon Times an editorial condemning "excessive acclaim" of General Douglas MacArthur. Or the Argentine satirical publication that was shut down in 1966 for referring to local military leaders as walruses. The laws in effect in Hungary, Japan and Argentina differed in significant respects. The central censorial character of each was identical.
All these examples are to be found in this volume of New York Times articles setting forth, in the revealing language used at the time, one example after another of political censorship in the twentieth century. It is a long and fascinating book that rarely shows humanity at its best. Censorship is not pleasant business, and while censors often act ridiculously, they rarely act with a light touch.
The Nazi example cited above may be a bit misleading. The censorship of that regime was not only unusually racist and murderous; it was also unusually candid. Censorship is usually masked in code words—the language of "responsibility" and "accountability," of "values" and "honor" and of "stability" and protecting "public morals." New censorial schemes are usually pronounced with regret, asserted to be temporary and declared to be consistent with principles of free expression.
Not in the German Reich, which trumpeted the New Order as offering new norms of human behavior. During the Nazi reign, the German Supreme Court acknowledged that its country did not have a "free" press as those words were used in "liberalistically governed States." The press, the Court said, was "ordered" since the regime viewed it "as a medium for the education of the national community in the spirit of National Socialism and as a means of leadership in the service of the State and nation, expecting the press not to oppose the decisions of the government but to support them and to try to bring them to concrete results."
Throughout the century, nations far more often defended their censorial conduct in more euphemistic terms. Was the new Soviet Union a despotic state? A New York Times article written in 1923 (by Walter Duranty, whose pro-Soviet sympathies later led to justified criticism of and then self-criticism by The Times) summed up the situation by acknowledging that "no opposition to the Government, either written or spoken, is allowed." Duranty went on to relate a common Soviet defense of censorship, saying, "freedom of speech in America and England are the slow outcome of a centuries long fight for personal liberty. How can you expect Russia, just emerged from the blackest tyranny, to share the attitude of Anglo-Saxons who struck the first blow against regal tyrants a thousand years ago at Runnymede?" A Russian official was then quoted as acknowledging that censorship proceeds "in the first instance from fear" and as expressing the hope that "time and the continued stability of the Soviet regime will bring us gradually into line with Western standards."
Twentieth century censorship reflected in this book varied in the degree of governmental involvement of what could be freely uttered. Not surprisingly, there are differences in kind between the censorship in totalitarian states and in democratic ones. But censorship remains the appropriate word to describe the conduct involved in both. Consider three of the articles from the first decade of the twentieth century. All are about the United States. Not one of these censorial acts was treated as a serious threat to expression a century ago. Not one would be legally permissible today.
A 1901 dispatch reports laconically on the sentencing to jail of the managing editor and a reporter of the Chicago American for publishing an article critical "of the court's decision on an application for the forfeiture of the charter of the People's Gaslight and Coke Company." Five years later, an article describes the indictment of three St. Paul newspapers for reporting on the hanging of a criminal, notwithstanding a law that forbade "publication of details of a hanging" and permitted newspapers simply "to announce the fact of the execution." Three years after that, Spokane authorities are reported to have seized every copy of The Industrial Worker, the house organ of the International Workers of the World, for publishing an article relating the "alleged experience" of a prisoner in the county jail. "The papers," The Times reported without comment, "will be burned."
The censorship of any of these newspapers for the reasons asserted at the time would be unthinkable (as well as unconstitutional) today. More significantly, all these efforts at censorship—the first for expressing an opinion about the performance of a judge, the second for accurately reporting about governmental conduct and the third for reporting on conditions in a public facility—are rooted in the same sense of hubris: that it is for the government to determine what is best for the people to know. While this is not, by any means, the worst sort of repression, it is the worst of paternalism.
Nowhere is the effort of twentieth century states to decide what may and may not be said more comic—sometimes more lunatic—than with respect to issues of culture. One may not be shocked to read that Tolstoy's publisher was jailed for six months in 1909 for publishing one of his novels, but who would have imagined that a year earlier Parisian intellectuals would have been forced to defend their right to observe "scantily clad women" in music halls against raids by French police?
The contagious nature of censorship is also displayed. In 1908, performances of Oscar Wilde's Salome were barred in Germany. Dr. Richard Strauss objected, saying, "It is nonsense to forbid such a play! I should like to work out the idea into a musical drama." He did so and the resulting work was promptly barred in Cleveland and Chicago. The police chief of St. Louis was more worldly. The opera, he said, would be permitted "until a point where in the opinion of the 'morality squad,' it gets shocking."
The boundless degree of authority to determine what might and might not be shown was startling. In New York City in 1908, police barred jokes told in dialect and permitted "acting" while barring "vaudeville." In a Mack Sennett–like comedy routine, the police watched a quartet sing and then saw "between two of the songs, the baritone [strike] the second tenor with a newspaper." "Cut that out," yells a policeman, "that's vaudeville."
How did a system of censorship work in a democratic society? It worked to bar films that were viewed as suggestive, to jail journalists who told too much truth, and ultimately to ban books. A noted example is reflected in a 1921 New York Times article under the headline "Improper Novel Costs Women $100." In its entirety, the following description was offered:
Margaret C. Anderson and Jane Heap, publisher and editor respectively of The Little Review, at 27 West Eighth Street, each paid a fine of $50 imposed by Justices McInerney, Kernochan and Moss in Special Sessions yesterday, for publishing an improper novel in the July and August, 1920, issues of the magazine. John S. Summer, Secretary of the New York Society for the Prevention of Vice, was the complainant. The defendants were accompanied to court by several Greenwich Village artists and writers. John Quinn, counsel for the women, told the court that the alleged objectionable story, entitled "Ulysses," was the product of one Joyce, author, playwright and graduate of Dublin University, whose work had been praised by noted critics. "I think that this novel is unintelligible," said Justice McInerney.
Mr. Quinn admitted that it was cast in a curious style, but contended that it was in similar vein to the work of an American author with which no fault was found, and he thought it was principally a matter of punctuation marks. Joyce, he said, didn't use punctuation marks in this story, probably on account of his eyesight. "There may be found more impropriety in the displays in some Fifth Avenue show windows or in a theatrical show than is contained in this novel," protested the attorney.
Assistant District Attorney Joseph Forrester said that some of the chief objections had to do with a too frank expression concerning a woman's dress when the woman was in the clothes described. The court held that parts of the story seemed to be harmful to the morals of the community.
Pause for a moment on that period piece. Think what Justice McInerney would have thought if he had understood the novel by "one Joyce." Or what Joyce must have made of Justice McInerney's difficulty with his prose. Or of the defender of his book explaining away Joyce's lack of punctuation as being rooted in his poor eyesight.
It is the last line in the article, however, that is most telling. Because "parts of the story seemed to be harmful to the morals of the community," the story (and the book) was suppressed. Not for another dozen years was "Ulysses" permitted into the country.
The censors in the Joyce case were judges. In other censorship schemes throughout the world, that role was played by military officers, police and other designated officials. The tone with which they spoke was often reassuring, frequently containing denials that the process of censorship was, in fact, censorial. When George Alexander Redford, the dramatic censor in London, banned any performance of Shaw's "Mrs. Warren's Profession" in 1910, he observed that the play was "clever, but impossible" and described his own role as follows:
I am not a censor. I never censorize over anybody. I merely used the experience I have gained from a long association with theatrical matters to administer the regulations of my office. There is no such thing as an offhand decision about interdicting a play. No play is ever prohibited without the most careful thought, and every chance is given authors to tone down their work whenever it is possible.
Redford's self-deprecating description of his own role has been unwittingly tracked by censors throughout the century. A recent study published by the World Press Freedom Committee entitled "New Code Words for Censorship" concludes that:
The words and phrases evolve and change, but their meaning remains the same: restrictions on the news media, and thus on what the people can know. The censorship of 2000 and beyond will be more difficult than past censorship to identify, more challenging to confront and will originate from some surprising new corners. It already is coming. Not just from heavyhanded dictators, but also from sources supposedly supportive of democracy—Western linked international and intergovernmental institutions.
Behind claims they are safeguarding the commonwealth these groups are grasping for power to control the news that citizens hear, see and read, through a language of benevolent-sounding hogwash that ultimately translates into old-fashioned censorship.
Whether couched in older language or new, then, the logic and the appeal of censorship remains the same. And the need to confront it remains constant.
The First Amendment, Under Fire from the Left
Debating Catharine MacKinnon
New York Times Magazine, March 13, 1994
"Congress shall make no law ... abridging the freedom of speech, or of the press." The late Justice Hugo L. Black wrote memorably about that proposition: "First in the catalogue of human liberties essential to the life and growth of a government of, for and by the people are those liberties written into the First Amendment to our Constitution."
Are those guarantees in trouble? That is the question put by The Times Magazine to two quite different authorities: Floyd Abrams, the prominent First Amendment lawyer, and Prof. Catharine A. MacKinnon, the author of "Only Words" and an advocate of legal measures to curb pornography. They met at The New York Times for the discussion excerpted here. Anthony Lewis, a columnist for The New York Times, was the moderator.
ANTHONY LEWIS: Repression in this country, repression of speech, has historically come from the right. It was so with the Sedition Act of 1798; it was so when Attorney General A. Mitchell Palmer arrested thousands of supposed radicals in 1920; it was so when Senator Joseph McCarthy tyrannized the nation. Now I think there is a significant movement for repression from the political left. There have been calls, especially on campus, to repress certain kinds of expression—speech demeaning to minorities and disadvantaged groups, pornography. Mr. Abrams, could you comment on this phenomenon?
FLOYD ABRAMS: Well, I think there is a significant effort to restrict First Amendment values, if not legally defined First Amendment rights, which comes from the liberal community or the left-liberal community. Why is that so? It is human nature. People don't like to permit speech of which they thoroughly disapprove, and liberals are no more able to disassociate themselves from trying to impose into law what they wish people would say than conservatives are. It's true that most of the efforts, historically speaking, that have posed direct threats to the First Amendment have come from the right. Now we see on campuses around the country in a wide range of circumstances things being done, limitations on speech being imposed, that if they came from the right we would call McCarthyism. And so they are.
Excerpted from Friend of the Court by FLOYD ABRAMS. Copyright © 2013 by Floyd Abrams. Excerpted by permission of Yale UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Chapter 1 The Vice of Censorship.................... 17
Chapter 2 The United States and the World.................... 75
Chapter 3 The First Amendment and National Security.................... 133
Chapter 4 Presidents vs. the First Amendment.................... 181
Chapter 5 On Libel and Privacy.................... 217
Chapter 6 Copyright Woes.................... 243
Chapter 7 Confidential Sources.................... 275
Chapter 8 Citizens United.................... 303
Chapter 9 Assessing the Press.................... 349
Chapter 10 Reflections.................... 395