Floyd Abrams has been perhaps the most prominent individual defender of the First Amendment in the United States, both in the courts and in numerous books and articles, particularly since he represented The New York Times in the Pentagon Papers case in 1971. That’s a very long run. Abrams is still at it in his short new book, The Soul of the First Amendment. It’s an effort, at a time when he believes the First Amendment is under assault from various quarters, to distill the leading arguments from his career, and it covers tensions between free speech and attempts to regulate money in politics—Abrams represented then–Senate minority leader Mitch McConnell in the Citizens United case that opened the floodgates of dark-money spending in elections—and hate speech, and to protect privacy and national security.
Each of these debates is important to have, and his chapters on them, when taken together, make a larger argument about free speech—a kind of First Amendment fundamentalism that makes only cursory acknowledgment of the countervailing concerns, indeed at times real harms, of racial intimidation or digital attacks on privacy and reputation—and which is now under strain from a number of progressive activists appalled at the ACLU’s defense of the neo-Nazis who marched in Charlottesville. But Abrams’s way of engaging the subject of free speech leaves one feeling that it’s past time to shake up First Amendment discourse. The Soul of the First Amendment makes all the standard absolutist arguments that any possible gain from regulation of speech is outweighed by its harms (arguments I happen to agree with, despite my concern about the real wounds that speech can sometimes wield, since I have yet to encounter a regulatory scheme that wouldn’t backfire against political, racial, and religious minorities in a world in which bureaucrats and prosecutors would be making the decisions about what passes), but as it does so it also reveals a considerable deficiency in how free speech is viewed today. It would be hard to grasp from this volume that free speech has been a vital tool for progressive social change, including all movements for equality. After reading this book, one is struck by how little the lines of argument have changed and the fear that Abrams, despite an honorable and accomplished career, may be part of the problem.
Abrams is a big believer in the American approach to free-speech rights. He also sees threats to their exceptional nature from many quarters. It is perhaps for this reason, in an odd echo of the Trump administration, that Abrams saves his greatest fire in his new book for two targets: Europe and the left. Among the things he notes that have bothered him and provoked his new book: His young son was turned away from a British cruise-ship screening of All the President’s Men some years ago because of the movie’s profanity; Belgium and England penalize anti-Islamic leaflets and posters; and in Finland and Germany, legal actions were taken by politicians and royalty to protect the privacy of their relationships and families. To his credit, Abrams concedes that “one could hardly argue that Canada, whose approach to [free speech] is in many ways similar to that of democratic Europe, suffers under a yoke of repression as a result.” Nevertheless, he spends many pages of a short book focusing on what he sees as insufficient protection for free speech in other Western democracies.