Geoffrey Stone reviews Speaking Freely: Trials of the First Amendment
Review of Speaking Freely: Trials of the First Amendment by Floyd Abrams
If you've ever wondered what it would be like to argue a case before the Supreme Court, or to cross-examine John McCain, or to defend the First Amendment against the likes of Richard M. Nixon or Rudolph W. Giuliani, then this book is for you.
For more than 30 years, the lawyer Floyd Abrams has been at the epicenter of almost every major controversy involving the First Amendment's "freedom of speech, or of the press," including the United States government's effort to enjoin The New York Times's publication of the Pentagon Papers, the Brooklyn Museum's exhibition of Chris Ofili's "elephant dung" Virgin Mary, the constitutionality of campaign finance regulation and libel actions brought against NBC and ABC by such diverse characters as Wayne Newton and Victor Lasky.
In "Speaking Freely: Trials of the First Amendment," Mr. Abrams brings all these battles to life, tracing the constitutional arguments, the strategy sessions, the behind-the scenes maneuvers and the pivotal moments in the resolution of these conflicts.
He offers some stunning insights and revelations. In 1971, when Attorney General John N. Mitchell demanded that The New York Times cease publication of the Pentagon Papers, Robert S. McNamara, the former secretary of defense who had commissioned the secret papers years earlier, helped draft The Times's reply, bluntly rejecting Mitchell's demands. Mr. McNamara, "steeped in depression and despair over the failure of his Vietnam policies," he writes, even offered to testify for The Times if the Nixon administration started a criminal prosecution. Mr. Abrams is now the lawyer for Judith Miller, a reporter for The New York Times, and Matthew Cooper, a reporter for Time magazine, who have refused to testify about discussions with confidential news sources.
In another pivotal case, Mr. Abrams argued to the Supreme Court in Landmark Communications v. Virginia that the government can never constitutionally punish the publication of truthful information about public officials. Mr. Abrams shares with readers the exhilaration and anguish of his oral argument. He reveals his thought process as he struggled to survive 54 questions from the justices in 30 minutes. Some queries were friendly, others hostile. The challenge was to know the difference, and to respond coherently before the next question flew from the bench.
During one exchange, Justice William H. Rehnquist asked a question for which Mr. Abrams said he was "totally unprepared," but Justice Potter Stewart came to his rescue. Of all the justices, Mr. Abrams found Justice Byron R. White the most unnerving. White "invariably asked questions that were both pointed and powerful," he recalls, and Mr. Abrams never once "had the sense that anything I said pleased him." He confides that during oral argument he often felt like a mouse with "a tormenting cat." Nonetheless, he won a unanimous victory.
Mr. Abrams also describes the trials in several libel actions against news media defendants. Each offers unique insights into the complex nature of First Amendment litigation. In one, Victor Lasky, "the right-wing journalist" who had risen to prominence in the McCarthy era, sued ABC News for broadcasting a one-hour program, "American Inquisition," that explored the impact of McCarthyism on a small West Virginia town. The central issue in the litigation was whether, at an American Legion meeting on March 31, 1951, Lasky had accused Luella Mundel, a local college teacher, of being a Communist, a charge that led to Mundel's being fired and blacklisted; she later attempted suicide. Lasky maintained that the program inaccurately reported that he had called Mundel a Communist.
It is no mean feat to try a case that focuses on whether a single phrase was or was not uttered 37 years earlier. Witnesses die, memories fade, recollections change. Mr. Abrams invites us into difficult strategic deliberations over whether to call as witnesses individuals who would support ABC's position but who were so infirm by trial time that they would be easy pickings for Lasky's lawyers. Lasky testified unequivocally at trial that he had never called Mundel a Communist ("No. N-O, exclamation point period, no."), characterized the ABC program in withering terms and described its producers as "arrogant lying bastards." Clearly, Mr. Abrams needed to destroy Lasky's credibility. As he takes us through the intricate details of his bruising cross-examination, we see firsthand the meaning of the phrase "to undress the witness." To expose Lasky, Mr. Abrams recalled for the jury another incident, from the late 1940's, involving Lasky, Dalton Trumbo and the actor Edward G. Robinson.
Trumbo, the great screenwriter of movies like "Johnny Got His Gun" and "30 Seconds Over Tokyo," had been imprisoned and then blacklisted because he refused to answer questions from the House Un-American Activities Committee. Robinson sent Trumbo's family a check to help them through this painful period in their lives, and as a consequence was accused of being a Communist.
In response to Mr. Abrams's questions, Lasky boasted that he had played a generous role in guiding Robinson through his crisis. Having set his trap, the lawyer then read to Lasky and the jury Robinson's own account of the incident. In his memoirs, Robinson wrote that Lasky had pressured him to publish a 26-page confession (written for him by Lasky) admitting that he had been a "dupe" of the Communists. Robinson refused, informing Lasky that he "wished no part" of his sordid effort to portray him as "a fool who out of brainlessness" had been "blindly led into organizations that wished to destroy America." After hearing this evidence, the jurors turned their heads away from Lasky, Mr. Abrams recalls, and shortly thereafter unanimously found the ABC program accurate.
Throughout "Speaking Freely," Mr. Abrams offers candid impressions of some of the most important judges and politicians of our age. Some assessments are harsh. Mr. Giuliani, for example, is portrayed as "authoritarian,'"'bullying" and "deeply contemptuous of the First Amendment," and Mr. McCain, whom Mr. Abrams confronted on the issue of campaign finance regulation, had only "contempt, sometimes reflected in fury, for those who disagreed with him."
"Speaking Freely" is testament to a remarkable career in the law. More than that, though, it is Mr. Abrams's testament to the vitality and centrality of the First Amendment in American society. He describes himself as "a First Amendment voluptuary," but part of what fascinates about this book is that Mr. Abrams came to this self-identity gradually, over many years of reflection. Indeed, his own evolution as a First Amendment thinker can be seen as a metaphor for the role of the First Amendment. Over the years, as he read, thought, listened, studied and learned from others, Mr. Abrams came to a fuller appreciation of the fundamental importance of civil liberties to the strength and well-being of our nation. All Americans would do well to follow his example.
Geoffrey R. Stone is the Harry Kalven Jr. distinguished service professor of law at the University of Chicago and the author of "Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism."
Copyright 2005 The New York Times Company