The Important Formative Years of a Legendary First Amendment Advocate 

The new PBS “American Masters” documentary, Floyd Abrams: Speaking Freely, chronicles legendary First Amendment lawyer Floyd Abrams.  It largely focuses on the amazing trajectory of his career in this vital area of constitutional law.  

As a young law firm associate on Wall Street, Abrams was a pivotal member of the legal team that successfully argued before the U.S. Supreme Court that the national security concerns advanced by the U.S. Department of Justice did not justify a publication prior restraint of the Pentagon Papers by The New York Times.   

His work on that case gained national headlines, and for more than 50 years that have followed since then, he frequently is retained by clients as the First Amendment lawyer of choice in many seminal cases.

Less well known is how his First Amendment views were shaped well before he became a lawyer and achieved such well-deserved prominence.  I was fortunate to learn about them directly when I spoke with Floyd Abrams for my book, The First Amendment Lives On: Conversations Commemorating Hugh M. Hefner’s Legacy of Enduring Free Speech and Free Press Values.

Here is a personal glimpse into the early years of this First Amendment champion, which helped shape the remarkable story that the documentary tells so well.

Stuart Brotman: Let’s start with your earliest thoughts about the First Amendment.  Did they start in college or earlier?

Floyd Abrams: It was in college at Cornell, when I was an undergraduate, that I first started thinking about addressing various First Amendment issues.  But in those days, I was more on the other side.  That is to say, I was very impressed with the English system.  It made a lot of sense to me that if a court can’t accept or allow a jury to hear a coerced confession, then a newspaper shouldn’t publish it.  It made sense to me that publishers and editors ought to be held to pretty strict standards of accuracy.  And I suppose one could say that by chance or not, starting with the law of a free nation without a First Amendment has made me a better lawyer in this area.

Stuart Brotman: What about experiences with free speech?

Floyd Abrams: I did college debating.  That was a formative matter for me, in part because I found I did it well.  I would say [it was] probably the only area at college in which I sort of stood out.  I was also a pretty young man; I was 16 when I started.  So I was unformed in all sorts of ways.  And there was McCarthyism.  That was something I did care about.  I certainly was on the libertarian side of that.

Stuart Brotman: How did McCarthyism affect Cornell then?

Floyd Abrams: Just as one example, when I arrived at the campus as a young freshman, I received from the university an identification card, which I signed and carried.  It said in effect that the university can get rid of you for any reason it wants.  It was very clear that included speaking out.  That was one of the things that was always at risk.

Stuart Brotman: Did you ever see repercussions like that for speaking out?

Floyd Abrams: I must say no.  At least for a campus like Cornell, the times were silent ones.  There were fraternities and non-fraternities, there was no overt racial conflict, there was hardly a person of color on the campus.  I don’t recall seeing a male student of color who was not on the football team or some other team.  It was a time of at least surface equanimity.  I came from a public school in Queens [New York].   I had to look around a lot to see how people behaved in this world.   But I was glad I went, and everything was new. I met a poet once.  That surely was new to me.  He quoted Dylan Thomas, and I’d never heard of Dylan Thomas.  I thought it was exciting.  Yeah, it was.  Absolutely.  But it was a whole new world.

Stuart Brotman: What type of issues were argued by your Cornell debate team?

Floyd Abrams: To give you an idea of the time, I did a debate against traveling law students at Cambridge, who were doing a national tour of the U.S.   The topic was whether West Germany, as it was then called, should rearm. It was something I was quite prepared to take either side on.  But I remember saying in a debate attended by a few hundred people, because of these Cambridge guys, something to the effect of, “Why should we now, 10 years after the war, be more concerned about the Germans than the French?”  And a professor let me know, in a very nice way, that I should read something about World War II before spouting off in a way that equated the risks of German rearmament just a few years after World War II with that of France.

But that’s how I learned things in college.  The debating part of it was very helpful for me.  The notion that being assigned a topic and assigned a side, looking back on it, seemed sort of liberating.  I didn’t have to have a side.  I didn’t have to know about the subject.  Walking in to a new topic, I could learn it freshly, while simultaneously focusing on what arguments were more persuasive for my assigned side.  And I’ve often thought that for practicing lawyers, who sometimes take difficult public policy positions because of their clients’ needs, that is sort of morally liberating, to be assigned as it were.  Because that’s what lawyers do, you know.  But the starting point there is we have to win this thing. 

Floyd Abrams has combined his passion for free speech and free press with an unrelenting focus on developing successful arguments that have helped set legal precedents.  This mixture of theory and practice uniquely represents the First Amendment legacy that he has created. 

Stuart N. Brotman is a Distinguished Senior Fellow at The Media Institute, where he serves with Floyd Abrams on its First Amendment Advisory Council.