Saturday, January 28, 2012

Superstar 1st Amendment Lawyer Floyd Abrams on Why Free Speech is an All or Nothing Deal

Superstar 1st Amendment Lawyer Floyd Abrams on Why Free Speech is an All or Nothing Deal:

interview by Jonathan W. Peters of First Amendment Hero Floyd
Abrams. A snippet:

What’s the most serious threat today to free

...there’s too much legislation and regulation adopted on the
basis of content. One example would be the rights of broadcasters.
They are relegated to a second level of protection, to being judged
by standards that couldn’t survive First Amendment scrutiny if
applied to newspapers, the Internet or other outlets.

One thing that troubles me is the willingness of too many people
to be selective in their support for First Amendment norms, because
of their political or ideological views. The First Amendment
doesn’t work that way—its protections don’t vary according to
whether the left or right will benefit from a particular
case. The Nation magazine invited me to a forum
in the late 1990s or early 2000s. Someone at the forum said, “The
wrong people are winning First Amendment cases. What can we do
about it?” My answer was, “Maybe you ought to change your political
views to conform with your First Amendment views, rather than the
other way around, trying to change the First Amendment to conform
with your political views.

Abrams means what he says. Here's his take on Citizens United
and the largely uninformed criticism of the seemingly obvious
notion that people don't lose their speech rights when they form

I was very surprised by criticism of the idea that corporations
should receive any First Amendment protection at all, as if the
entities I’ve represented through the years—the New York
, NBC and CBS—weren’t corporations.

I’ve been surprised, too, by the degree to which
the Citizens United opinion has been treated as
if it had no roots at all, as if no prior cases indicated that the
speech at issue should be protected. And most of all, I’ve been
shocked at the notion that people who claim to defend the First
Amendment would acquiesce in the idea that a politically oriented
group might be criminally sanctioned for producing a documentary
criticizing a candidate for the presidency of the United

And just to throw some seltzer into the mix, here's Abrams, who
represents the Directors Guild, on why he doesn't think the Stop
Online Privacy Act (SOPA) was the problem that most of us online
types thought it was:

The basic proposition that we should take steps to shut down
entities that are nothing but infringing does not threaten the
First Amendment. That’s not censorship.

Abrams grants that he's "by no means expert" on the
technological issues posed by SOPA (and its analogue, PIPA), which
is no small admission, since there are serious questions as to
exactly how shut-down mechanisms on alleged infringement would be
handled and exactly how allegations would be settled. Similarly,
it's far from clear what constitutes entities that are "nothing but
infringing." Etc.

Read the whole thing here