Floyd Abrams, an attorney who has argued for freedom of speech and freedom of the press before the U.S. Supreme Court in cases such as Citizens United and New York Times v. United States (the “Pentagon Papers”), came to Charlottesville on March 22 to speak at the Virginia Festival of the Book.
In a panel ostensibly about Abrams' recent book, Friend of the Court: On the Front Lines with the First Amendment, he was quizzed by Ronald L.K. Collins, author of Nuanced Absolutism: Floyd Abrams and the First Amendment, and audience members. Josh Wheeler, director of the Thomas Jefferson Center for the Protection of Free Expression, hosted the panel, which was held in the Charlottesville City Council chambers.
After he had autographed copies of his book for admiring readers, Abrams answered a few questions posed by the Charlottesville Libertarian Examiner.
One concern of his is the evolution of the American Civil Liberties Union (ACLU) towards a position that often seems at odds with free speech rather than in favor of it.
The ACLU, he said “is becoming more of a liberal organization – more of a progressive organization – than a free-speech protective one.”
That is not to say, he explained, “that they would not protect, on the face of it, the right of some conservatives who were thrown in jail for speech; they would.”
In “hard areas” such as campaign finance law, however, he said that the ACLU is “too willing to give up speech for what they consider to be other social benefits. I think that they hurt themselves as an institution and limit themselves in terms of serving as a protector of the public when they do so.”
Related to that, Abrams indicated that he agrees with the premise of Jonathan Rauch's book, Kindly Inquisitors (which he said he has not read), that posits that members of minority groups are better off in a robust free-speech regime than in a regime that limits speech for the purpose of protecting those same groups.
Minority groups, Abrams said, or “people who are weaker than stronger are the people who generally benefit the most from living in a free society and a society in which speech is free.”
While that may not satisfy “people who say, 'but we have some people with more power than other people because of their money,'” he argued that “anytime we cut back significantly on speech, the people who tend to get hurt most, if not first, are people without rather than with power.”
With regard to campaign finance law, Abrams offered some thoughts on the Tillman Act of 1907, one of the first such laws. The Tillman Act, which banned corporate contributions to federal campaigns, has been criticized by Justice Clarence Thomas, who told Stetson University law students in 2010 that Senator Benjamin Tillman “was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
Abrams said the Tillman Act had “conflicting” aims.
“One was to limit corporate power and corporate control,” but, he added, “the Tillman Act also had significant racist aspects to it,” although it was “basically a reform piece of legislation designed to crack down on corporations.”
Lane v. Franks
Finally, Abrams talked about a free-speech case he is following that he expects to be heard by the U.S. Supreme Court.
“There's one I'm watching very closely,” he said, and he has filed a brief in it, “which is a follow-up to the Garcetti case of a few years ago [Garcetti v. Cebalos, 2006], which basically said, if you work for the government, and you're doing something within the course of your governmental duties, they can fire you for any reason, including your speech.”
The current case, Lane v. Franks, he explained, involves a former government employee in Alabama, who observed a politically-connected person who was being paid for a government job that he did not actually do, and “who revealed the fact that the other person was essentially acting criminally. The other person was convicted, jailed, fined $160,000, and they fired the guy who turned him in.”
According to the First Amendment Coalition, which filed Abrams' brief in the case, Lane v. Franks “tests the limits of the categorical, on-off rule of constitutional interpretation that was applied in Garcetti. We think (hope) that the Court chose to review the Lane v. Franks case to reverse the appeals court and clarify the Garcetti decision in a way that permits First Amendment protection for true speech by government employees, at least in circumstances where the speech serves a public or governmental interest.”
The question raised by this case, Abrams noted in Charlottesville, is this: “Is that really consistent with the First Amendment? Is it really consistent to say that when you tell the truth in court, you can be fired for that? I don't think the Supreme Court is going to say that, but that's one case I'm watching.”