First Amendment expert visits Rochester

Listen to this article

Famed First Amendment lawyer Floyd Abrams started a presentation in Rochester on Monday with the same anecdote that he used at the beginning of his new book — “The Soul of the First Amendment.”

To illustrate the significant differences in how the United States and other democracies treat free speech, Abrams recounted a 1976 trip to England on the Queen Elizabeth 2 ocean liner with his wife and two children.

His 10-year-old son, Dan, who is now chief legal affairs anchor for ABC News, hoped to watch a screening of the movie All the President’s Men, but a ship steward wouldn’t let him because the British considered the “salty language” in the film inappropriate for children.

“My forthright, outspoken, First Amendment treasuring son said to the steward: ‘That’s why we had a revolution,’” Abrams told an audience of about 100 people who attended the luncheon at the Nixon Peabody LLP offices.

“It just seems to me still sort of startling to realize, not that they’re not free, but that we’ve made very different choices about what values to protect more, and what values, therefore, to give somewhat less protection to,” said Abrams, 81.

In Canada, for example, a religious zealot who printed fliers denouncing a local school board for teaching about homosexuality was convicted under a statute that criminalizes hate speech because the fliers used several disparaging words about homosexuality.

Meanwhile, in the United States, Westboro Baptist Church in Topeka, Kansas, routinely sends church members to funerals for American soldiers where they hold signs saying their deaths are God’s punishment because the United States is “too soft and friendly and accommodating to gay Americans,” Abrams said.

The Supreme Court of the United States sided with the church in a lawsuit filed by the father of a soldier who claimed the protests amounted to intentional infliction of emotional injury.

Abrams explained that the court ruled that “this offensive, outrageous, wounding speech was not just protected, but was particularly protected because it was about matters of public interest.”

“It’s an example, I think, of quite how different we are, our law is, our First Amendment protections are,” Abrams said.

In 1971, when he was with the law firm of Cahill Gordon & Reindel, Abrams was co-counsel to The New York Times in the Pentagon Papers case.

The Nixon administration was trying to prevent the Times from publishing details of a 7,000-page top-secret study of the United States involvement in the Vietnam War. Government lawyers claimed that publishing the papers would cause irreparable harm.

In a 6-3 ruling, the Supreme Court said the government did not show sufficiently that great harm would be done by publishing the papers.

“None of this was possible anywhere else in the world,” Abrams said. “There’s not a country in the world that would have ruled the same.”

The decision in the Pentagon Papers case amounts to “a nearly total bar to prior restraints on the press,” Abrams said.

The only other case in which the government tried to get a prior restraint since then was in 1979 when a temporary injunction was granted to prevent The Progressive magazine from running a story about how to make a hydrogen bomb.

But that case was dropped after it was discovered that the same information had already been published elsewhere and was not a secret.

While free speech is given more protection in the United States than in Europe, privacy gets more legal protection in Europe than it does here.

In fact, a “right to be forgotten” law was adopted throughout Europe in 2014, which has led to Google removing more than 600,000 internet references to people that were true and previously published, Abrams said.

While such a policy could never be allowed in the United States under the First Amendment, the idea has quite a bit of support here, Abrams said.

He said 88 percent of Americans surveyed were in favor of a right to be forgotten law, “which is why we have judges and a written constitution.”

[email protected] / (585) 232-2035