The Soul of the First Amendment

Jun 5, 2017

In this timely event, Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, examines the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world, including democratic nations such as Canada and England.

JOANNE MYERS: Good evening, everyone. I am Joanne Myers, director of Public Affairs Programs, and on behalf of the Carnegie Council I'd like to thank you all for joining us for this very special evening.

Our guest this evening is Floyd Abrams. If you believe in serendipity, as I often do, I'm convinced that our speaker's initials, F. A., were no accident. This celebrated First Amendment lawyer was predestined to be the foremost advocate for free speech in modern times.

Mr. Abrams began his work in First Amendment law when in 1971 he represented The New York Times before the Supreme Court in the seminal Pentagon Papers case. He has been a defender of the First Amendment in major cases ever since.

Today he is here to discuss his recently published book entitled, The Soul of the First Amendment. The focus of his discussion will be the First Amendment clauses that guarantee freedom of speech and freedom of the press. At a time when our president is calling the press "an enemy of the people" and a candidate for public office assaults a reporter who is just doing his job, our democracy is being tested. The relevance of his book could not be more timely.

The First Amendment to the Constitution personifies American exceptionalism. It is what makes America unique. Unlike most other nations around the world, even those that hold similar values to our own, such as Canada or the United Kingdom, Americans are given much wider latitude to speak their minds.

But why does this matter? It matters because in a democracy, if people cannot speak their minds, if their voices are silenced, we will never learn from the community the wisdom of different opinions and different ideas. The First Amendment's protection of free speech and expression is central to the concept of the American political system and the protracted life of our democratic institutions. Without free speech there is no free society. In many ways it is an affirmation to the bold experiment begun by our forefathers so long ago. It is a testament to our democracy.

For just how special it is and how fortunate we are to have this protection, please join me in giving a warm welcome to the enduring defender of free speech in our time, our guest today, Floyd Abrams. Thank you for joining us.

FLOYD ABRAMS: Thank you very much. Thank you all.

This is a time in our country's history in which people turn out for lectures about the First Amendment. I gave a talk a few weeks ago at the Newseum in Washington, and we had a filled room. The person who introduced me said at the start that she was so happy that so many people were there because they were so used to having five speakers and four people in the audience. She said that is what this administration has given to us.

I thought I'd talk to you a little bit about two basic themes, and both of them really relate to what has just been rightly described as "American exceptionalism." I'll offer a few examples of just how different we are than other democratic countries; I'm not comparing us tonight to Russia or Venezuela or Ecuador—pick your country. We can talk about Western Europe and the like.

But I want to start with just a very few words on how fortuitous it is that we even have a First Amendment. People forget—if we ever learned it—that when the framers met in Philadelphia in 1787, the Constitution they wrote did not have a Bill of Rights. The Articles of Confederation had existed, there were 13 states that prevailed together in a revolution, but there was no federal government, there was no president, there was no Congress. There were the states, and they tried to get along as best they could.

So when they met in Philadelphia they had to decide basically everything about the new government. There would be a president, it would be four years; there would be a Congress, here is what they would do; there would be a judiciary; separate sections of the Constitution dealing with, in one way or the other, how the new federal government, the new central government, would work.

When the subject arose on the floor in Philadelphia about whether they should have a Bill of Rights—only 10 states were there at that meeting—the vote was 10-to-0 against having a Bill of Rights. Every state voted against it.

Then there was a vote—"Well," one delegate said, "why don't we at least pass something about freedom of the press," and that was defeated seven states to three states.

It was not because the framers were against, or even indifferent to, the various freedoms which wound up in the Bill of Rights, it was because they basically didn't think it was necessary. They didn't think that was the sort of document they were drafting. They were drafting a blueprint of the new government and how it would work.

People like Alexander Hamilton—now a musical comedy person—but when he was the real Alexander Hamilton, he was against having a Bill of Rights. He wrote in The Federalist, "Why should we start listing all the things that the Congress cannot do when we never said they could do them?" This is a government of limited power, limited authority, set forth in the Constitution as to what it could do. "Why should we start listing all the things it can't do?"

He made one very good lawyer's argument, which every lawyer would recognize immediately, which is, "We're going to forget some things, and then lawyers will argue that we didn't mean to exclude that because we said 'free speech,' we didn't say 'free X or Y or Z.'" That argument, which is reflected in The Federalist and which was articulated very briefly on the floor in Philadelphia, was what led the framers not to have a Bill of Rights.

But what happened next is that it had to be ratified, and a number of states would not ratify it without a Bill of Rights. Led by Thomas Jefferson, who was the U.S. ambassador in France, there was increasing opposition to ratifying the Constitution unless there was as part of it, or separate amendments to it, at the same time a list of the various things that the new government could not do—the areas into which they could not go—and those were what became known as the Bill of Rights. Jefferson wrote: "It astonishes me that our countrymen should be contented to live under a system which leaves to their governors the power of taking from them freedom of religion, freedom of the press, and other basic rights." He wrote, "A Bill of Rights is what the people are entitled to against every government on Earth, general or particular, and what no just government should refuse or rest on inference."

While there were still some individuals in authority who mocked the idea of a Bill of Rights, Madison himself, who wound up drafting it, referred to it as a "parchment barrier which will never be given effect when opposed to the sense of the public." When the public cared enough to suppress free speech, they would do it, and indeed sometimes they have done it in our history.

But we wound up, in order to get the Constitution ratified, with a Constitution with the 10 Amendments attached to it, which specified, in one way or the other, a variety of things that Congress could not do. And it was very deliberately phrased negatively. Many constitutions around the world are phrased in terms of individuals, people, citizens having rights. The Bill of Rights is not that. The Bill of Rights says, "Congress shall make no law which abridges the freedom of speech or of the press." It was deliberately phrased negatively to make very clear that these were boundaries over which the government could not go.

Of course, the Bill of Rights applies only to the government. We do not have free speech rights in the Constitution against each other; people can be fired for their political views. That may violate other laws, but not the Constitution. The Constitution limits only the government. By its terms, "Congress shall make no law." Congress was later expanded to be the president, the states, the cities, public officials in general, but the government. So we have a government which is limited in power by the Bill of Rights purposely, and it has wound up to be a Bill of Rights which has provided more power to the public, more limitations on the government, than exist in any other democratic state.

For example, the subject of hate speech, terrible, vile speech aimed at minorities, often in the grossest of terms—every other democratic country in the world, in one sort of language or another, bans, criminalizes, hate speech. And indeed, the United States is a party to an international convention on civil rights which basically says that "every country shall take steps to protect people against that," but when President Carter signed that, he had to attach a "reservation," as it's called, saying "this is all subject to the U.S. Constitution," which means that we can't adopt legislation of the sort that other countries have and do.

So where do we come out then? Example: In Saskatchewan, Canada, a religious zealot, learning that homosexuality was going to be taught about in the high schools in Saskatchewan, printed out fliers, which he put in mailboxes all around town, denouncing the idea of teaching about homosexuality in the schools, and phrased it very broadly and very crudely. One line: "If Saskatchewan sodomites have their way, your school boards will be celebrating buggery." There was that, and there was a lot worse than that, all aimed at, and derogatory about, gay people. He was convicted of a crime in Canada just a few years ago. The crime was the speech; the crime was what was on those fliers that were put in the mailboxes.

Compare that to here. There is a group you may have read about, the Westboro Baptist Church, a family that travels basically from church to church, synagogue, or whatever, around the country when there are funerals of American soldiers who have been killed in Iraq or Afghanistan, with ugly, vile signs, denouncing the soldiers by name—they don't even know anything about the soldiers—and saying, "This is God's punishment for America's too favorable treatment of homosexuals." The signs are filled with "God hates f-gs," "f-gs doom nations," "f-g troops." Some of the language was celebratory about the death. They always obey the police. They never get closer to the place of the burial or the church or whatever than the police allow, but they're always outside, just outside there, with their signs.

And the father of one deceased soldier brought a lawsuit saying that the family ought to be able to recover, as a result of the nature of the insult, the calumny aimed at his dead son. The case went to the Supreme Court just a few years ago, and the Supreme Court, taking a uniquely American approach to it, said in so many words, "Not only is this the sort of speech which cannot be punished, it is the sort of speech which requires special protection, and is given special protection under the First Amendment because it relates to matters of public interest and concern," not the soldier, which might be private, but homosexuals in the military or other issues phrased in a variety of different ways. The Court said, "The political and moral conduct of the United States, homosexuality in the military, scandals involving the Catholic Church"—there were some anti-Catholic things there too—in an 8-to-1 opinion written by the chief justice, that "This is the sort of speech which may not be elegant or attractive or anything good, but it is the sort of speech we protect."

We see that again and again in different areas. Lawsuits brought in England and one in Belgium, both just a few years ago, where people were carrying signs. One in Belgium: "Belgians and Europeans first. Stand up against the Islamification of Belgium." Criminal action was brought. The European Court of Human Rights (ECHR), the highest court in Europe that deals with civil liberties issues, affirms the conviction of the person who was carrying those signs, saying that such language might be effective, especially "with less knowledgeable members of the public."

In England, signs with pictures of the World Trade Center falling, and the language, "Islam out of Britain. Protect the British people" and another sign saying "Don't come over to this country and treat it like your own. Britain first." It may sound vaguely familiar.

One way to say it is that Donald Trump, when he was running for president, said things which would have been criminal throughout the entirety of Western Europe about Muslims, Mexicans, and the like. The penalties, by the way, for these people, some of whom were legislators, was in one case somebody couldn't run for office for 10 years; in another, a fine being imposed.

But it is a total difference in approach in terms of the level of legal protection that is afforded and the degree to which the law is really based on a concern about having government involvement in this area, even as to speech that very few people would argue is worthy, or for the most part, makes a contribution to public discourse. We refuse to define what speech that is, and other countries, democratic countries—Canada, England, and the like—do define it, and do say, and have said, "If you want to say 'Islam out of Britain,' that's a crime. It is picking on an oppressed minority," etc.

One more example—I think lighter in heart: Finland is a country that tends to win the award that some journalistic organizations in Europe give every year to the most speech-protective country in the world. It's usually—always, really—a Scandinavian country. Finland was chosen as the winner. The United States was 41st, which I think is absurd, by the way, but was a slap at the United States for going after whistleblowers or leakers of information; Snowden, Assange, etc.

The prime minister of Finland, just a few years ago, had a girlfriend. He was divorced. He had a girlfriend who lived at the place of the prime minister. He had a child, I think two children. And she wrote a tell-all book about her relationship with the prime minister. She wrote it just after they broke up, you will not be surprised to hear. He went to court, and the government, the state of Finland, went to court saying this interfered with the right of privacy of the prime minister. The court ruled in his favor as to two areas: sexual conduct, and the children; how the children behaved with the woman, with the prime minister, and the nature of their sexual relationship.

Do I have to say, just imagine if Monica Lewinsky had written such a book and President Clinton had gone to court? I can assure you he would have been laughed out of court and mocked by the American public for bringing the action, and really ripped apart by the court in deciding such a case.

But again, we're talking about Finland, a country that has long cared about free speech and free press, and their view and a European view, much more than our view, that principles of privacy trump free speech principles in a case like this where it does relate to those very personal issues.

A final example: In Europe now they have adopted what is referred to in their cases as a "right to be forgotten." It is a notion, privacy-based, that if enough time has passed after somebody has done something which has been written about, and whatever it was is no longer "relevant," that Google and other entities which reprint, as it were, or carry old information of that sort, should not be permitted to do so if the individual involved complains.

So a person in Belgium went to Google and said: "Twenty-two years ago I was the driver of a car which resulted in the death of two people. It was in the newspapers. On Google it is my only listing. It has been 22 years. I'm not a public person, I'm a private figure, and I don't think Google ought to be allowed to carry that." And the person won.

The law throughout Western Europe—not Canada—is that if enough time has passed—and I have to speak vaguely because the language is vague—if the information is not relevant, which it is usually interpreted to be if it is an otherwise private person—they wouldn't say this about a politician who had been in an accident 22 years ago, but a private person—if it's no longer relevant, that Google can't carry it if the person protests.

Here I am confident our courts would say: "We don't kill history. If it's true, it's true. If somebody finds it out, he could publish it now for the first time, and he can publish it 22 years later. Google and its competitors are the place where most people get most information these days about the past, and we're not going to start down the road of making such information unavailable."

As of this time, over 500,000 newspaper articles have been banned from Google throughout Western Europe because of this right to be forgotten. The way it works is that Google has to decide first after the protest or the request to drop it, what's relevant and what's not, and if the person disagrees, if Google says, "No, we think we should continue to carry it," they can go to court and get a court order, and that's what the person in Belgium did, in the case that I described to you.

It is a really interesting area, and it is one in which legislation has just been proposed in the New York legislature to adopt here. It's not going anyplace in the legislature, but it may be a sign that down the road there will be more pressure to do that. As I said, my own view is that it is very unlikely that the Supreme Court would uphold the constitutionality of any law which made it illegal to carry truthful information about matters which at one point or other were deemed newsworthy enough to write about. But that's our law, and that's their law.

I could go on with one area after another. The right to criticize judges is much broader here than there. Libel law is much more protective here.

You may recall that candidate Trump said that if he were elected, he would loosen the libel laws so that he could, and others could, bring lawsuits and make a lot of money as a result of doing so. It happens to be the case that there is no federal libel law, so it's preposterous. There is nothing Congress can do about libel law because we have no libel law. We have 50 state libel laws.

What is also true—and more important—is that it is because of the First Amendment that these state libel laws do not allow public officials—or what he was, a public figure, Mr. Trump before he was president—to win a libel suit about criticism or statements about him. He can't win unless what is proved is that it is about him, it is defamatory—speaks very badly of him—that it is untrue, and the add-on is that the person who said it knew it wasn't true or suspected it wasn't true. That last part, which we refer to as "actual malice," is what totally distinguishes American law from that in Western Europe.

We have a situation, for other reasons as well, in which England has become a paradise for libel plaintiffs. That has been cut back because of certain reform legislation adopted the year before last, but it is still very friendly to people who bring libel suits in almost the precisely obverse way to our protection of people who speak, even when they are sometimes wrong about what they say.

All these are policy issues to which people, nations, and democratic nations can disagree. The direction we have chosen to go in, as I've said, is to have much more expansive protections of speech and press and the like, and therefore at the same time much less in the way of power of the government. Even acting in good faith and even acting in a way that other democratic countries would think is the way a civil society ought to be run, we simply wouldn't allow it and don't allow it.

A final comment before we turn to some questions: All this is both old and new. The words of the First Amendment are 18th century words. But there were no cases almost at all in the 19th century. It wasn't until the beginning of the 20th century that we started to have real First Amendment cases in the courts, and that wasn't until World War I began and socialists and anarchists were jailed for giving speeches opposing the war even after the war began. The government took the position under the Espionage Act, which still governs us and was adopted 100 years ago this year, that if you are allowed to say things like that, it will deter people from enlisting in the Army; it will lead to the United States having less of a chance to win the war which was then underway.

So we had a number of cases, including one in which Eugene Debs, a Socialist candidate who got 3 million votes in the election, was jailed for a number of years for his advocacy against World War I. [Editor's note: Debs ran in five different elections. His most successful campaign was in 1912, when he received roughly 900,000 votes, or 6 percent of the electorate.] Those were the cases that started to have the great dissenting opinions of Justice Brandeis and Justice Holmes, which were really the beginning of the development of serious protective First Amendment law in this country, initially as dissenting opinions, and later by popular acclaim understood to be appropriate statements of what the First Amendment means, leading to, and then cited in, opinions in mostly the second half of the 20th century, within living memory of me and some other people in this room.

The Pentagon Papers case was mentioned; it was a pretty big deal in terms of having it now in our arsenal. The decade before, New York Times v. Sullivan that I mentioned in libel law, pretty big deal in terms of protecting the press and all public speakers in situations in which otherwise it might be very possible for a president or powerful people with a lot of money to step in and suppress speech of great importance.

So that's where we are. I wrote in the book that I didn't mean it to be a valentine to the First Amendment. Of course, it is. But we should remember that we have had dark days as well as bright ones. We've had times throughout our history, and bad times, in which speech was suppressed notwithstanding the fact that we had a First Amendment, either because no one went to court in those days or because the courts simply did not read the First Amendment the way we read it now.

Final story: My daughter is now a federal judge. My poor children were told fairy tales. What were my fairy tales about? Cases. I told my daughter, who used to very cleverly ask me what my cases were about just as I was leaving her room, so I would sit down on her bed and talk about cases.

I described one case involving commercial speech, and she said, "Well, what do you say?"

I said, "Well, we say that the First Amendment means this and that, and that, and that."

She said, "What do they say?"

I said, "Well, they say the First Amendment means the opposite; it means this and that."

And she looked at me and she said, "Hasn't anybody read it?"

Thank you all very much.


JOANNE MYERS: It is such a privilege to have you here. As you said, you've just touched upon very little. I know there is so much more.

I have a question to ask. You touched upon Snowden. I would just like to know, with all these protections of free speech that we have, where do you come down on this? Or is the release of documents not the same as speech?

FLOYD ABRAMS: I think that as a pure legal matter Mr. Snowden probably has violated the Espionage Act and probably would be convicted, and probably the conviction would be upheld.

I have very mixed feelings about him as reflected in the book, very ambivalent feelings, like many people, including the attorney general of the United States, who filed the criminal complaint against him. I distinguish myself between what I think was the public service of his revealing domestic surveillance by the National Security Agency (NSA), all duly enacted by Congress and signed by presidents, but nonetheless unknown to the public, which he did reveal, I think, with great profit to the country. I distinguish that from his revelations about American intelligence gathering abroad, which I view as a different type of revelation with much more potential to do harm and much less potential to serve the public. Those are personal views. I think in his role as a former contractor—which is like being a government employee—he would have a hard time winning a case brought against him.

Assange is a different story. WikiLeaks is a different story in a few ways: One, he's not American, and therefore some different standards and legal principles might come into play. It is one thing to say "you can't be a spy," whatever your nationality is; it's something else to say that you owe some duty of loyalty to a country of which you're not a citizen.

Beyond that, Assange has played a journalistic role in part when he has gathered information and made it available to the public. So phrased, that sounds like what journalists do. That's the case that everyone thinks that the Trump administration may well bring, and may well bring soon, against Assange. Then people like me, who, like in my book, are only critical of WikiLeaks and Assange, will be in the position of saying that "we're sorry the government brought the case, and we hope Assange wins the case, because if he doesn't, they could bring the same case against journalists who I might think better of, and we all might have at least fewer qualms about the nature of their behavior." But that is the case which could very well come up and would be very dangerous.

QUESTION: James Starkman. Thank you for a wonderful discussion.

Just briefly, what is the status of British tabloid journalism today vis-à-vis, let's say, The New York Post on Page Six—which is more truthful or truthful at all? And also just if you have a comment about the Paula Jones suit, if there is any application to that?

FLOYD ABRAMS: Rupert Murdoch brought Australian and English journalism to America. There are differences, but interestingly, the English tabloid yellow press has always been racier than ours, even though they were more subject to legal restrictions. That remains the case.

In terms of truthfulness, they work very hard to avoid—in England especially—libel cases. Here, because of what I just said a few minutes ago, they don't have to be as concerned about libel law. We really do still have libel law, and newspapers are at risk, but nothing like the situation in England. So their papers go on more or less as before.

The biggest reform in English libel law in recent years is that there is now a defense which is permitted that a story is in the public interest. We don't phrase ours that way, but that's a big deal to be able to defend on the grounds that this is not just salacious journalism, we're not just printing secrets because we've got them, somehow the public is served. That really started in the great thalidomide case that Harry Evans was involved in—now Sir Harry Evans, who lives here—and who very bravely published articles about how a German drug company had sold drugs that had terribly deformed children in England, and did so during the cases, which were interminable.

In England the law is still that in general when a case is on, you can only write what happens in court. We would be allowed here to say that "this person has a criminal record" or "this person has confessed." That is contempt of court in England. It's been a contempt of court for years, and it is still a contempt of court. So the English journalists work around that. I'd say in general they are less truth-oriented than ours.

QUESTION: Thank you so much for speaking with us today. I was just wondering, where do you perceive the discourse on freedom of speech going in the near future in terms of any new court cases on the docket or legal precedent?

FLOYD ABRAMS: I view this Court as one of the most pro-First Amendment Courts in our history. I think that something that has happened in the last 20 years has led to that. In general, throughout American history, people of the left, or jurists of the left, more liberal jurists, were the First Amendment defenders, in part because of the nature of the cases that reached the Court.

In more recent years there have been a number of cases in which conservative jurists—sometimes very conservative jurists—have led what they thought was the battle for the First Amendment, including the Citizens United case that I was on their side in, including very important cases about being present and outside abortion clinics and trying to persuade women not to go through with abortions in situations in which they weren't blocking and weren't threatening, but they were deeply troubling and bothering women going in to have abortions.

We've had two very major cases which went in different directions, but in both of them all the conservative members of the Court were on what was argued to be the First Amendment side. They have now carried the day in that of type case, so long as the two features I mentioned earlier were present—no threats, no blocking, can get in and out—but what you can't do is to make it a crime, which Massachusetts did in one of the cases and Colorado did in another case, to speak to a woman who is walking in without her permission.

Again, one would understand why people might try to pass such legislation, to protect the women from the offense of sometimes being criticized or denounced or begged not to go ahead with it. But these are almost always on public streets and places where people generally have the right to engage in First Amendment advocacy, and we allow it. The votes in a lot of these cases are frequently unanimous, or 8-to-1. That "awful fact" situation I described to you a few minutes ago about the Baptist Church family, when I was in law school I don't think there would have been one vote protecting that speech. I don't think the liberals would have protected that speech, and now it's 8-to-1.

By my lights, I'm pretty optimistic about the direction of the Court. Many of my liberal friends disagree with that because they disagree with the rulings that the conservative jurists have brought about.

QUESTION: Larry Zicklin.

Given the extraordinary amounts of money that are being spent in campaigns these days, do you believe there should be disclosure of large expenditures on anyone's behalf—individuals, unions, corporations, etc.?

FLOYD ABRAMS: I do, for two reasons. That is what the Supreme Court has said over and over again in Citizens United. They affirmed disclosures in Buckley v. Valeo, in one case after another, including very controversial cases. But I think they were right to do so.

I'm representing Governor Cuomo now in a case defending a New York statute dealing with charitable organizations—501(c)(3) and 501(c)(4)—which require the disclosure of the identity of donors over a certain amount if the money is used either for lobbying or for advocacy about public issues.

The American Civil Liberties Union (ACLU) is on the other side of that, and it is still an issue. But we've had five Supreme Court cases in the last 30 years, all of which have affirmed the constitutionality of required disclosure of large donors, and I think that's a good idea.

QUESTION: I am from the Jewish Foundation for the Education of Woman State University of New York (JFEW-SUNY) global program.

My question is: In what ways do you think the way in which the First Amendment is interpreted has changed as a result of the presidency?

FLOYD ABRAMS: Not much yet. If anything, I think the courts have been resistant to this president. I think that the immigration cases, which are not First Amendment cases but are a prime example of that, where the courts have been looking to statements made by the president during the campaign, is really very unusual to do in American legal history.

There is a very serious argument for it in circumstances in which what the president as candidate said was "I don't want to allow any Muslims in," and then said as president, "In effect, I'm using different words, but I'm still doing the same thing I wanted to do before." Given that the First Amendment bars religious tests and religious discrimination, there is no statute that would be affirmed constitutionally which basically said "All Muslims can't do this or that or that because they are Muslims."

I think the courts have been especially careful. You might think that it was also because of the level of his criticism of the courts. It is not a smart thing to do, to criticize the judges that you're about to appear before. It is not what outside counsel would advise. And that could have an effect, too—not to get back at him; I really don't believe that—but to make sure that the judiciary is playing its role of protector of the Constitution. It becomes much clearer to think of some of the legislation or some of the executive orders which have been enacted as putting at issue constitutionally guaranteed rights when the person that wrote or signed the executive order has described it in the way that the president has.

QUESTION: Simon Tschinkel. [phonetic] I really appreciate this.

My question has to do with the primacy or non-primacy of the First Amendment over the ones that follow. Specifically, it seems to me that many people will defend the First Amendment and the rights therein and yet dismiss the Second Amendment. Without getting into a debate, of course, of the Second Amendment itself, I'm curious as to whether there is a perceived primacy of the First Amendment over the Second, and could you comment on that?

FLOYD ABRAMS: Let me say first, on the 200th anniversary of the adoption of the Bill of Rights, there was an event I participated in at a university here in town open to the public where we read all the amendments to the Constitution. I got to read the First Amendment, and I was cheered. Someone next to me read the Second Amendment, and he was booed. Only at a New York audience would a reader of a part of the Constitution get booed.

It is not supposed to be a primacy. There aren't many clashes actually between the First and Second Amendments. I don't think anyone could argue seriously—any constitutional scholar or practitioner—that the Second Amendment should not be followed. The only arguments are: What does it mean? Is it limited to the militia? Is it an individual right? Things like that. Does each person have a right to have a gun? Does it make a difference if it's a machine gun or a pistol in your home to protect yourself? Those are the issues which the courts are still deciding. Even for those of us who are in favor of gun control, the Second Amendment is there, and it is supposed to be enforced. The question is how to read it.

QUESTION: I know a young girl, 13, 14, went to a party and acted in an extremely inappropriate way, and it got on the Internet, not in the newspaper. I know there are many cases like that. In these situations, do you think there should be some right to be forgotten in some—

FLOYD ABRAMS: In fact, I'm going to rephrase even to make it harder: Not so much to be forgotten, but is there some right to make you take it off while the girl is still 13? The right to be forgotten would be when it's a woman of 40 saying "you really ought to take it off."

QUESTIONER [Unidentified]: I like that better.

FLOYD ABRAMS: These are very painful issues, and very real ones. Bear in mind, again, that the First Amendment and the Constitution apply only as a limitation on the government. It doesn't limit Facebook, it doesn't limit Google; it limits what Congress can do, etc., or the courts, a government entity.

So the question is: Could a government entity constitutionally say, "Take down that picture. It's a girl, just a teenage girl"? I don't have an answer for you yet on that. I think the privacy interests are very great, even though the exposure was voluntary. That is one of the reasons that it is a hard case.

In cases where pictures are taken where people are sneaked up on or looked at through windows—the Hulk Hogan case, for example—that's a different situation. But where it's a child, even if the child has voluntarily allowed the picture to be out, it's hard to say.

If it were a newspaper that published it as part of some sort of a newsworthy article, I would say that they have the right to do it and that the parent couldn't overcome that right. But on the broader basis that you asked, I want to think about it some more.

QUESTION: My name is Gary Manicher [phonetic].

My question is to the president's utterances on Twitter and his interviews with correspondents. Can those statements be used against him in a court of law, particularly the ones he made about his firing of the FBI director, Mr. Comey?

FLOYD ABRAMS: Absolutely. They are statements against interest that can be used against him, just as a statement he made orally could be used against him. For example, whatever he said to then-FBI Director Comey in whatever level of confidence he thought he was saying it—and remember what Comey has said is that he told everyone else to leave the room, so it was just Comey and him—absolutely that can be used against him.

QUESTION: I'm also with the JFEW-SUNY program.

As a student of environmental studies and a woman, I'm very concerned about women's reproductive rights and climate change and pulling out of the Paris Agreement and things like this, and all the alternative facts surrounding this, and maybe some false information that our president is spreading around, just as an example. Do you feel that perhaps redefining what a "clear and present danger" could be would limit the First Amendment rights, in terms of we're in an age of social media where information is spread so quickly and is very impactful to large audiences in profound ways, and could create in certain situations clear and present dangers, especially if the information is not true?

FLOYD ABRAMS: My answer is that in general, no, I don't think there is, or can be, a legal remedy, certainly not on matters of public policy. Even false statements about public policy would be fully protected. We don't allow the courts or the legislature to define truth in a way which keeps people from having their say about it.

Could you posit a situation, though, in which we're not talking about policy but we're talking about an individual and statements were made? We had a case just in the last year or so—and I'm afraid we're going to have more of them—in which one young person encourages another young person to commit suicide. Then the question is: Can you hold the first one liable? So far, the answer seems probably yes.

Social media has changed, as an earlier question suggested, the fact patterns which come up in the courts now more and more. So a roommate films a roommate having gay sex and puts it out for everyone, and the person portrayed jumps off the George Washington Bridge, which is what happened. We had a criminal case. It's no defense to say, "Well, it was true," or it's not a complete defense to say it was true. We do have some level of privacy law and some level of criminal law which comes into play. How we draw the lines there will work out through the years.

QUESTION: Thank you for speaking with us today. My name is Tina Spizek [phonetic]. I'm also with the JFEW-SUNY program.

FLOYD ABRAMS: Are you assigned to ask questions?

QUESTIONER [Tina Spizek]: No. My question, not to digress, revolves around what you said about Snowden and how that is different from other cases we may be talking about with respect to the First Amendment. You said that you think there is a distinction with respect to being abroad for more potential to do harm than to do good. Why can't that same thing be said for domestic acts of hate speech? Saying "God hates f-gs" doesn't necessarily seem to be doing any good, and we can see that it has a substantial degree of harm, not only on the person or groups it's said about, but on contributing to existing structures of power within society.

FLOYD ABRAMS: The answer is entirely rooted in what the information is. My own view, which I was expressing, is that information about a pervasive pattern of domestic surveillance by the government of telephone calls of the public, even though they say they haven't recorded them, but they have enough information to identify, and did it for what I think was a more than plausible reason, but nonetheless that level of surveillance of our people, I think, was a public service to reveal.

I don't think it's a public service for Snowden to have turned over documents revealing that the United States and Sweden and Norway had a secret agreement to engage in surveillance of Russia, and that the three countries shared the information about Russian arms, Russian politics, and the like. Again, that is a view of mine. I don't think it served the country for Snowden to release documents showing that the United States listened to the telephone calls of the president of Russia as he attended a conference in England. I think that sort of spying is the sort of thing Americans shouldn't reveal about other Americans engaged in it.

But that is why these are issues that I have identified which are not legal distinctions. Snowden's legal problems would exist with respect to both sorts of things that we're talking about. He was a contractor, he signed agreements, he pledged secrecy, he turned over higher than top-secret documents, he did it in a way more protective than Assange because he gave them to journalists for them to decide what to release. Nonetheless, the reason he's not coming home and taking his chances is that he has surely been advised that his chances aren't very good, the legal matter, in defending his conduct.

JOANNE MYERS: In the legal profession, Mr. Abrams has always been known as "Mr. First Amendment," and I think you all can appreciate and understand why. I thank you very much for giving us the opportunity. We will continue the conversation happily. Thank you so much.

FLOYD ABRAMS: Thank you.

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