Floyd Abrams
Floyd Abrams; drawing by David Levine

“We are under a Constitution, but the Constitution is what the judges say it is….”

—Charles Evans Hughes, 1907


Nowadays that statement might be cited by right-wing critics of the courts as a shocking illustration of “judicial activism.” Chief Justice Hughes, as he later became, made it as a statement of fact. He added, “and the judiciary is the safeguard of our liberty and of our property under the Constitution.”

That the meaning of the United States Constitution depends on its interpretation by judges is so obvious that professions of shock at the idea are hard to take seriously. The Constitution lays out a system of government, and of restraints on government power, in a few thousand words, often using such spacious phrases as “due process of law.” Its brevity and open rhetoric are in contrast to the extended specifics of modern constitutions such as South Africa’s. From John Marshall to the present, judges have translated its majestic generalities into concrete commands.

A wonderful example of the interpretative process is what has been made, over the years, of the free expression guarantees of the First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press.” Today those clauses, enforced by the courts, protect journalists and artists and political speakers of all stripes. But for more than a century they gave no effective protection to anyone.

In 1798, just seven years after the First Amendment and the rest of the Bill of Rights were added to the Constitution, a Federalist Congress passed—and a Federalist president, John Adams, signed into law—a Sedition Act that made it a crime to publish false criticism of the president. The statute was never considered by the Supreme Court before it expired in 1801. But members of that court, sitting on circuit as trial judges, enforced the act, presiding at trials of editors under it and sentencing them to fines and imprisonment.

Judges then and for years after seemed to treat the First Amendment’s promises of free expression as admonitions rather than legally enforceable rules. Convictions of disfavored speakers were upheld if the speech could be said to have a “bad tendency”—which amounted to no protection at all. It was not until 1919 that our understanding of what the First Amendment means began to emerge.

During World War I, Congress, at the urging of President Wilson, passed another Sedition Act, which punished interference with the war effort. A group of radicals were prosecuted for throwing leaflets from the tops of buildings in New York protesting Wilson’s dispatch of troops to Russia after the Bolshevik Revolution. For that protest against a president’s policy they were convicted and sentenced to up to twenty years in prison. The Supreme Court affirmed the convictions: one more defeat for claims under the First Amendment.1 But this time there was a dissent, by Justice Oliver Wendell Holmes Jr., joined by Justice Louis D. Brandeis.

“Persecution for the expression of opinions,” Holmes wrote,

seems to me perfectly logical. If you have no doubt of your premises or your power…, you naturally express your wishes in law and sweep away all opposition…. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas…. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment…. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death….

Those extraordinary words—no judge but Holmes could have written “as all life is an experiment”—were the first in which a Supreme Court justice treated freedom of speech as a fundamental value. Over the next decade Brandeis and Holmes wrote eloquent dissents again and again in speech cases. They gradually persuaded the country and the Court.

In 1925 the Court intimated for the first time that it would apply the First Amendment’s restrictions on federal power (“Congress shall make no law”) to state abridgments of free expression.2 In 1931 it did so, enforcing the press clause to hold unconstitutional a Minnesota law calling for the suppression of “malicious” newspapers.3 Libel was always considered outside the protection of the First Amendment. During the amendment’s first 173 years no libel judgment was ever held unconstitutional. Then, in 1964, the Supreme Court, in New York Times Co. v. Sullivan, ended the exemption. It held unconstitutional a $500,000 Alabama libel award to a local official who had sued over a New York Times advertisement criticizing Southern officials for the use of brutal tactics against the civil rights movement. In his opinion for the Court, Justice William J. Brennan Jr. said that “the central meaning of the First Amendment” was the right to criticize government officials; he said the Sedi-tion Act of 1798, which punished criticism of the president, was unconsti-tutional.4 Until then all American libel cases were matters of state law; since then most have turned on questions of First Amendment law. In 1969, turning its back on the early-twentieth-century decisions upholding condign punishments for radical speech, the Court held that a state could not constitutionally punish speech advocating “the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Court reversed the Ohio conviction of a Ku Klux Klan member.5


Of course not every claim of First Amendment protection has succeeded. But freedom of expression gets more protection today in this country than in any other. No other country, in particular, protects defamatory publications or hate speech in the expansive way that American law now does. Even the argument that constitutional provisions should be confined to their original meaning has not stood in the way when it comes to the First Amendment. Justice Antonin Scalia, the Court’s leading “originalist,” joined in the 1989 decision6 that a ban on burning the flag in political protest was unconstitutional—a view that James Madison is not likely to have imagined when he drafted the First Amendment.

The process of constitutional interpretation depends, as does decisional law generally in the Anglo-American tradition, on the interplay between judges and lawyers. A notable example of the lawyer’s role was in the 1964 libel case, New York Times v. Sullivan. Counsel for The New York Times, Professor Herbert Wechsler of the Colum- bia Law School, put forward the proposition that a libel suit threatening to inhibit press coverage of a profound public issue, civil rights, was like the restraints imposed on political comment by the Sedition Act of 1798: an argument that Justice Brennan made a central point in his opinion for the Court.

Floyd Abrams is the country’s leading practitioner of First Amendment law. His book is a look at the process of constitutional interpretation from the ground up: how a case arose, how the lawyer making the claim for constitutional protection dug into the facts and analyzed the law, how arguments were developed to present to the courts.

The first thing to say is that Speaking Freely is a fascinating book. Abrams is an engaging writer. He tells stories, which is a way to the reader’s heart: stories of cases in which he has participated over the last thirty-three years. He lets the law emerge from the facts, a wise thing in literature as in law.

The stories Abrams tells illustrate an important point. Lawyers in constitutional cases must not let grand visions of establishing new constitutional theory obscure their first responsibility, which is to win the case for the client on any available ground. Justice Brennan used to say that the most important quality needed by a Supreme Court justice was the ability to count to five. That is, he or she must be able to stake out a position that will attract a majority on the Court. Of course any justice may rather be right, in his or her eyes, than make concessions needed for a majority. But that option is not properly open to a lawyer.

The search for five votes on the Supreme Court was present throughout the first and most important of the cases discussed in Abrams’s book, the Pentagon Papers case. That was the attempt by the Nixon administration in June 1971 to stop The New York Times from publishing stories about and texts from a secret Pentagon history of the Vietnam War.

Abrams got into the Pentagon Papers case in an accidental way that he describes disarmingly. At Yale Law School one of his professors had been Alexander M. Bickel. Like the professor, Abrams as a student had little interest in press freedom issues. He “had never met a journalist” then, he writes, and “had never understood that while there are always arguments available in support of suppressing speech, society is almost always better served when those arguments are rejected.”

In his first years in practice with the New York firm of Cahill Gordon, Abrams helped to represent NBC. That connection found him trying to persuade Professor Bickel to write a brief as a friend of the court in 1971 favoring a press claim, then heading for the Supreme Court, of a right to conceal anonymous sources. Bickel told Abrams on the phone that he was “no First Amendment voluptuary.” That was just what the press organizations wanted for the brief, a rather conservative scholar. Bickel said yes.


On June 14, 1971, Abrams was the host of a lunch in New York at which Professor Bickel told press lawyers and journalists what his approach would be. The Times had started its Pentagon Papers series the day before, with a second installment that morning. That night the Nixon administration told the paper it would go to court. The Times’s longtime law firm refused to represent it. The Times’s general counsel, James C. Goodale, thought of Bickel and, around midnight, found him. He then called Abrams. He and Bickel worked through the night.

The next morning Bickel met journalists and executives of the Times. He emphasized, Abrams writes, “the need for us to articulate legal positions that could attract the…critical fifth vote on the Supreme Court.” They assumed that they were likely to have support from four justices usually sympathetic to freedom of expression: Brennan, Hugo L. Black, William O. Douglas, and Thurgood Marshall.

From the start Bickel wanted to emphasize Congress’s refusal over the years to pass a statute authorizing such a suit for an injunction against publication of national security information. It was a point based on the Separation of Powers: the Constitution’s fundamental premise that each branch of government has its own function to perform. Bickel relied on the steel seizure case of 1952, when the Supreme Court held that President Truman’s seizure of the nation’s steel mills to prevent a damaging strike during the Korean War was invalid because Congress had not authorized the remedy of seizure.

A second approach, favored by Abrams, was to rely on the fact that prior restraints on the press—injunctions against publication—had long been viewed by the Supreme Court with the utmost skepticism. In the Minnesota newspaper case in 1931 the Court had found the state law invalid as a prior restraint. But Chief Justice Hughes, for the Court, did say that restraints might still be applied to prevent publication of such a thing as the sailing date of a troopship—an exception that government lawyers later argued would allow suppression of the Pentagon Papers secrets.

A third possibility was to argue, even more broadly, that the First Amendment was designed to let the press expose government mistakes, of which the Vietnam War present-ed strong examples. But Bickel and Abrams reckoned that few members of the Supreme Court would want to give the press that wide open a right to publish secrets. One did, in the end: Justice Black, whose opinion was the most eloquent of the nine issued by the justices. “The press was protected” by the First Amendment, Black wrote, “so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”

In the event, the Times lawyers used the first and second arguments in combination—crucially so. The six justices who decided in favor of the Times relied partly on the disfavoring of prior restraints and partly on the absence of a statute.7

Justices Byron White and Potter Stewart joined the four who were regarded as almost sure votes. Bickel assured their support when he carefully rejected an absolute view of First Amendment protection for the press. The American Civil Liberties Union criticized him for doing so. But it was surely better for the First Amendment to win the case than to stand on an absolute principle and go down in defeat.

One episode that may have been decisive but has not been much noticed is well described by Abrams. Early on, government counsel asked Judge Murray Gurfein of the Federal District Court in New York to make the Times turn over its copies of the Pentagon documents so it could be sure what the paper had. The Times refused, saying that might let the government identify the papers’ source. If Gurfein had upheld the government demand, the Times would have refused to obey. It might then have been held in contempt, and in any event it would have gone to the Supreme Court under a legal cloud. Judge Gurfein offered a brilliant compromise: have the Times hand over a list of the documents it had. Lawyers on both sides agreed, and that saved the day.

I have read innumerable articles and books on the Pentagon Papers case. (Abrams generously compliments a recent book, Inside the Pentagon Papers, edited by John Prados and Margaret Pratt Porter.8 ) But I still found Abrams’s account fresh and informative.


If the Pentagon Papers were law practice at its most sublime—profound issues in a case that went all the way to the Supreme Court in fifteen days—the case of Wayne Newton was an example of the ridiculous. Newton, a singer who lived and was beloved in Las Vegas, sued NBC for libel after it reported on television that he was mixed up with organized crime. Newton’s fame in Las Vegas assured that jurors there would favor him. Abrams, as the lawyer for NBC, expected that but was still stunned at the size of the judgment the jurors awarded Newton: $22,757,273.80. From the start Abrams had reasoned that his task was to make a record that would allow him to win on appeal. And so he did: a panel of the US Court of Appeals for the Ninth Circuit dismissed all of Newton’s claims. It was a ridiculous case because NBC’s broadcast was utterly correct. But the case was serious in its costs: twelve years of litigation and untold millions of dollars. The case showed that in subjecting libel to constitutional limits, the Supreme Court had not altogether removed from speakers and writers the burden of suits by parties with deep enough pockets to litigate worthless cases endlessly.

What makes the Wayne Newton tale worth reading is Abrams’s fun with it, particularly his wide-eyed reporting of the bizarre qualities of Las Vegas. He also has a good time with the story of how Mayor Rudolph Giuliani of New York tried to shut down the entire Brooklyn Museum because he disapproved of a show including a painting of the Virgin Mary that used elephant dung as a decorative material. But here there was a very serious constitutional issue: the right of an official to close a publicly funded museum that displays offensive art work.

Giuliani won national and even international praise for his leadership after the terrorist attacks of September 11, 2001. (He was awarded an honorary British knighthood.) But in the museum case two years earlier, Abrams writes, “I found myself confronted with an authoritarian Giuliani, a bullying Giuliani, a Giuliani deeply contemptuous of the First Amendment.” The battle with the mayor was carried on simultaneously in court and in public volleys. Abrams rightly deplores a New York Times Op-Ed piece by the director of the Metropolitan Museum, Philippe de Montebello, “fawning over Mayor Giuliani,” as Abrams put it, “for his ‘aesthetic sensibilities’ in criticizing the exhibition.” But the mayor only dug himself deeper in legal error by his public rhetoric, and a federal court enjoined the city and him personally from carrying out his threats.

Floyd Abrams may not be a First Amendment “voluptuary,” in Professor Bickel’s tart phrase, but he could fairly be said to have a very broad view of what the free expression clauses of the amendment protect. There are issues on which he goes too far for me. One is whether the Constitution everallows penalties to be imposed on a publication that is truthful but that damages an important interest of privacy. That was the question in the 2001 case of Bartnicki v. Vopper.9

A federal wiretapping statute allows civil damage suits against anyone who “intentionally discloses” the contents of a telephone conversation that he knows, or has reason to know, was unlawfully intercepted. During negotiations between a teachers’ union and a school board in Pennsylvania two union officials talked on cell phones. One said that if they did not get a 3 percent offer from the board, “we’re going to have to go to their, their homes…to blow off their front porches….” Someone unknown overheard and taped the call and gave the tape to an opponent of the union, who in turn gave it to a radio station. It was played on a talk show—and the overheard union officials sued the station for damages. The question was whether the First Amendment allowed the station to be penalized for broadcasting a tape that had been recorded in violation of the federal law. Abrams filed a friend-of-the-court brief on the station’s side on behalf of some leading newspapers, magazines, and broadcast networks.

The Supreme Court held that the station was protected by the First Amendment. Justice John Paul Stevens, in the opinion of the Court, said that the intercepted conversation was of a “public concern” that outweighed the interest of privacy in communication. The vote was six to three. But two members of the majority indicated that they took a narrow view of the outcome. Justice Stephen Breyer, in a concurring opinion joined by Justice Sandra Day O’Connor, said the anti-wiretapping law served the important interest of “fostering private speech.” People will be reluctant to speak freely in private, Breyer said, if they fear that their words will become public. The concurring justices evidently agreed to protect the radio station only because this conversation was of such aggravated public concern. Under other circumstances they would not let the First Amendment stand in the way of enforcing the wiretapping statute.

Abrams looks at the opinions in the Bartnicki case and says, “The closeness of the vote was ominous.” That is so only if one thinks the First Amendment always trumps the claims of privacy. In the leading law review article on the case,10 Professor Paul Gewirtz of Yale takes the opposite view—one that I find convincing. In our age, when so little is free from the prying gaze of multiplying media, we need to protect what Justice Louis Brandeis famously called “the right to be let alone.”

On one subject Abrams admits to displeasing, indeed shocking, many of his liberal-minded friends. That is campaign finance regulation. Abrams prepared the brief and argued, in a special three-judge trial court and then the Supreme Court, the case asserting that the McCain-Feingold Act of 2002 violated the First Amendment.

The Supreme Court sustained the major provisions of the McCain-Feingold Act by the narrowest of margins, five to four.11 This is not the place to try to find a way through the thicket of contentions about campaign finance reform. It is enough to say that Abrams lays out his arguments against the statute in fine professional style. He is so good, in fact, that the reader may forget that he or she is hearing one side of a matter hotly disputed on both facts and law. I have never been displeased, much less shocked, by Abrams’s opposition to campaign finance regulation. He is on the same side as the American Civil Liberties Union. But I do disagree. There is an abstract quality to the opposition, a deafness to the reality of America’s distorted election process. To the observation that money can corrupt the democratic system, Abrams replies that the answer cannot constitutionally be to limit the volume of political speech—and money makes the volume possible. I remember the comment of Professor Paul Freund when in 1976 the Supreme Court held part of an earlier campaign finance limitation unconstitutional because, according to the Court’s opinion, money is speech: “They say that money talks. I thought that was the problem, not the solution.”


Toward the end of his book Abrams briefly discusses what is the hottest issue of press freedom today: the protection of confidential sources. Abrams again takes what seems to be an absolute position: that journalists should have a legal right not to disclose their sources. And again I see other interests that deserve some recognition.

Abrams represented Judith Miller of The New York Times and Matt Cooper of Time magazine in their trial and first appeal of what has become a painful test of the confidential source issue. In his 2003 State of the Union address President Bush said that, according to intelligence reports, Saddam Hussein was trying to get uranium ore from Niger, in Africa. Joseph C. Wilson IV, a former ambassador who had been sent on an official mission to Niger to check those reports, wrote an Op-Ed piece in The New York Times saying that the reports were false and known by administration officials to be false. Eight days later Robert Novak, the conservative columnist, wrote that Wilson’s wife, Valerie Plame, was a CIA “operative on weapons of mass destruction.” Novak said, “Two senior administration officials told me his wife suggested sending Wilson to Niger….” Novak’s column was criticized as an effort by Bush’s people to get even with Wilson—and as a violation of a statute that makes it a crime to disclose the identities of secret intelligence agents.

The criticism led John Ashcroft, then attorney general, to appoint a special counsel to look into the possible violation of the agents’ identity law. He chose Patrick Fitzgerald, the United States attorney in Chicago. Fitzgerald has a reputation as a non-political prosecutor. A self-made man—his father was a janitor in New York—he was Phi Beta Kappa at Amherst and went to the Harvard Law School. He was an assistant US attorney in New York when President Bush nominated him for the Chicago position in 2001.

Fitzgerald subpoenaed Cooper, who had written a follow-up piece to the Novak column, and Miller, who had written nothing but had done some reporting on the matter. He asked them to name government officials who had talked to them; they refused. He took them before a judge, who held them in contempt. Both appealed unsuccessfully to the United States Court of Appeals for the District of Columbia Circuit. They then petitioned the Supreme Court to review the case; Miller’s petition was filed by Floyd Abrams, Cooper’s by a new lawyer brought in for this purpose: Theodore B. Olson, who was solicitor general in the first George W. Bushadministration. At this writing the two petitions are pending before the Court.

The case is clouded by a mystery. No one knows what counsel Fitzgerald has done about Novak, the author of the column that started the controversy, or what Novak has done. Was he subpoenaed? If so, did he name his “two senior administration” sources? If he did not name them, is he under a contempt order? Or, in view of the possibility of prosecution under the agents’ identity statute, did he invoke his Fifth Amendment privilege against possible self-incrimination? Novak is not saying, and neither is Fitzgerald.

The claim that the First Amendment gives journalists a privilege to withhold the names of confidential sources when they are demanded in legal proceedings was rejected by the Supreme Court in 1972.12 The vote was five to four. One of the five, Justice Lewis Powell, while joining the majority, added an enigmatic concurring opinion saying that journalists could look to the Court when “legitimate First Amendment interests require protection.” A good number of lower courts, taking the Powell opinion into account among other things, have refused to insist that journalists testify despite the 1972 Supreme Court decision. The formula generally used is that someone seeking a journalist’s testimony must show that there is a compelling need for it and that it is not available from some other witness.

Nevertheless, I think there is little chance that the Supreme Court will now find a testimonial privilege in the First Amendment. For one thing, the privilege claim does not fit easily with the main use of the amendment, which is to prevent censorship before or penalty after publication of something one knows. It rarely is seen as constitutional support for acquiring information. And in this case the argument is that a privilege is necessary for journalists to get information. What really underlies the lower courts’ refusal to compel some journalists’ testimony is not a constitutional right, though the judges may couch their actions in those terms, but a question of wise policy for society.

Judges commonly consider claims of privilege as a matter of public policy. The Constitution does not give lawyers, or spouses, or doctors privileges not to testify. Those privileges have been adopted by courts or legislatures because they are seen to advance important social interests. Congress in 1975 enacted a “rule of evidence” explicitly authorizing federal courts to develop privileges in keeping with “the principles of the common law as they may be interpreted…in the light of reason and experience.” Under that authority, the Supreme Court has recognized privileges for communications between attorneys and clients, wives and husbands, and psychotherapists and patients.

It is in this perspective that the cases of Judith Miller and Matt Cooper should be seen. And it was in fact the way the cases were analyzed in the most thoughtful and persuasive of the three opinions issued when the Court of Appeals upheld the contempt findings, the one by Circuit Judge David Tatel. Judge Tatel concluded that the courts should add a privilege for journalists to the other privileges recognized under the 1975 congressional enabling act. “Reason and experience” pointed that way, he said, referring to the important role of the press in exposing official wrongdoing and to the fact that forty-nine states have adopted some form of journalists’ privilege by statute or judicial decision.

Judge Tatel rightly dismissed as useless in investigations of leaks the formula that the government must show a convincing need for information about which other witnesses are unavailable. In those cases the leaker and the reporter are probably the only ones who know what happened, so there is no alternative witness. The interests that have to be balanced, Judge Tatel said, are “the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value.” And then, weighing those interests in the Miller and Cooper cases, he decided that the need to find out who leaked the dangerous information of a secret agent’s identity outweighed the reporters’ interest in finding the motivation of the leaker who targeted Valerie Plame.

Ronald Dworkin urged years ago in these pages that the issue of a testimonial privilege for journalists be considered as a matter of policy rather than constitutional right.13 At a minimum, he said, judges should show respect—even gratitude—for the courage of a journalist who risks much in thus carrying out the highest obligation of the profession. Judge Tatel certainly met that obligation. He recognized the seriousness of the two journalists’ work. Moreover, his record shows sensitivity to the First Amendment. It cannot be doubted that he gave the claims of Miller and Cooper full consideration.

But the secrecy pervading these cases still leaves a sense of doubt and unfairness. Judge Tatel’s reasoning on the crucial issue in his analysis—whether the interest in finding out who leaked Valerie Plame’s name exceeded the journalists’ interest in exposing the possible political motivation—was kept secret. He issued his opinion with four and one half pages—pages that evidently weighed those interests—blanked out. The secrecy about what has happened in Novak’s case intensifies the feeling of unfairness in the prosecution of Miller and Cooper.

The issue of confidential sources cannot be resolved, I fear, in a way that satisfies the needs of both journalism and the law. There is no doubt that journalists must sometimes rely on confidential sources. The press has overdone the use of unnamed sources, and that can endanger its credibility—as the recent flap over Newsweek’s Koran item illustrated. But on profound matters reporters may properly invoke confidential sources, for if they were not to do so, official wrongdoing would never be uncovered: Watergate provides a persuasive example. And if a reporter promises confidentiality, he or she must keep the promise. But it does not follow that the law must always back off from an attempt to discover the sources.

A South African case illustrates the point. In the apartheid years a weekly news magazine called To the Point published an article about a black minister, the Reverend Dr. Manas Buthelezi, saying that while he spoke publicly of the need for peaceful change, according to “reliable sources” he privately advocated “violence.” That was an extremely damaging charge in that era; it could have led to Dr. Buthelezi’s imprisonment. He sued To the Point for libel—and demanded to know the names of the “reliable sources.” The editor claimed a privilege to keep them secret. The court rejected the claim and awarded damages to Dr. Buthelezi.14 Some time later, in what South Africans called the “Information Scandal,” leaks from the Ministry of Information showed that the article had been written by the secret police and planted in To the Point.

Reputations can easily be ruined by false reports in the press. Do we really want the authors of defamatory articles to be able to hide behind alleged anonymous sources? And the argument that journalists should be given a privilege against having to testify, whether by judicial decision or a new federal shield law, courts another danger. It would risk adding to the already evident public feeling that the press thinks it is entitled to special treatment. The press does not need, right now, to separate itself further from the public. Any privilege that is won should surely be qualified, not absolute, with judges balancing the interests, as Judge Tatel indicated, and with his respectful care.

Justice William J. Brennan Jr. was one of the press’s greatest judicial friends. But when press organizations lost a case in the Supreme Court and cried out that the Constitution was unraveling, he urged them to be more careful and more understanding in their claims. “This,” he said,

may involve a certain loss of innocence, a certain recognition that the press, like other institutions, must accommodate a variety of important social interests.15

—June 16, 2005

This Issue

July 14, 2005