The Yale Law Journal has just published online an article by Floyd Abrams. In language that is stirring in the power of its logic and elegance, yet solemn as a wake, the famed constitutional lawyer writes of his dismay over the way so many scholars and journalists have treated the Supreme Court’s decision in Citizens United, which largely overturned the law commonly called McCain-Feingold.
Abrams is neither surprised nor disappointed that these critics didn’t like the decision; his despair stems from their failure even to acknowledge the most obvious First Amendment aspects of the case. They have, he says, treated the ruling “as a desecration.”
Many people will review this article narrowly, in that they will focus their comments, pro and con, on the law and facts of the case at issue. But I view it from a wider perspective. I think it’s one of the grandest examples in recent memory of the courage that’s required these days to defend and promote free speech even-handedly.
More than this, I think it guarantees, if any such were needed, that Floyd Abrams will go down in history as the greatest First Amendment champion of our era.
In part it has to do with the gentleman’s style. Far from engaging the critics with language (like their own) that vilifies, Abrams flatters some of them for their scholarship. Rather than retreat to the safety of quiescence or worse, he calls out even such as The New York Times, his client in the celebrated Pentagon Papers case. And rather than indulge in any sort of self-pity, Abrams doesn’t even mention the scurrilous attack on him (because he wrote an amicus brief in opposition to McCain-Feingold) by Keith Olbermann, who predicted that Abrams “will go down in history as the Quisling of freedom of speech in this country.”
Summing up the essence of his argument, Abrams writes: “When I think of Citizens United, I think of Citizens United. I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency. And I ask myself a question: If that’s not what the First Amendment is about, what is?”
But enough of this. Abrams’s piece is so powerful that nothing I say can embellish it.
Read it, and learn.
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.