Thoughtful, stimulating, and a bit edgy at times: New Floyd Abrams documentary — First Amendment News 394

11:04 PM, Manhattan. I’ve just returned to my hotel after watching “Floyd Abrams: Speaking Freely” at the Museum of Modern Art’s Celeste Bartos Film Preservation Center. This new and captivating documentary is directed and written by Yael Melamede, produced by Clare Smith Marash, and released by Salty Features in association with American Masters Pictures.

The theater was chock full of First Amendment powerhouses — lawyers, professors, journalists, luminaries of all stripes, and even some college students. They gathered to view an 83-minute unapologetic documentary about Floyd Abrams, a man whose lifework has pleased as many people as it has offended — just the kind of cerebral soldier needed to defend First Amendment principles in our censorial times.

No modern-day lawyer has had more of a sustained impact in developing our First Amendment law of free expression than Floyd Abrams. As Tom Goldstein put it in “The Yale Biographical Dictionary of American Law” (2009): “Abrams has become the premier ‘explainer’ of developments in First Amendment law.” And that role of “explainer” is, to be sure, an important one — especially when it comes to the development of doctrine.

Make of him what you will, but Abrams has not only explained what free speech doctrine has been, but he has often outlined what it might be in future cases.

“The modern history of the freedom of the press in this country is intimately associated with the career and work of Floyd Abrams.” — Lee Levine (2005)

As much as I like Floyd Abrams — and I greatly admire him! — I confess to having an aversion to films or books that are too venerating. You know, the over-the-top kind of puff stuff that makes a realist want to puke in dissent. We are, after all, mortals. We all have our flaws, our dark sides. And who among the living has never gotten something wrong, even dreadfully so? Believe it or not, the adoration mindset exists even in the First Amendment community, where sometimes the real-world consequences of free speech are glossed over in the excited rush to claim constitutional supremacy. It is as if free speech were the paramount value in life and law. Mind you, I don’t mean to be constitutionally sacrilegious, only realistic. Every law or norm has its limits.

That brings me back to the film about Abrams, which thankfully avoided over-venerating. 

While “Floyd Abrams: Speaking Freely” is thoughtful and stimulating, it is also a bit edgy at times. And though some of those interviewed in the documentary took nuanced swipes at “Mr. First Amendment,” others were not as reserved in their assessment of certain aspects of Abrams’ work.

Even so, the man of the moment took it in true First Amendment stride.

In so many creative, informative, and stirring ways, Yael Melamede has skillfully and superbly honored her subject by being faithful to those values that inform a robust and wide-open conception of the First Amendment. In other words, there was something in this documentary to offend nearly everyone. Maybe that explains Abrams’ occasional playfulness, which can make one pause to ponder the possibility of irony. For instance, consider this exchange:

Ari Melber: “Do you think there are any places where the First Amendment has gone too far?”

Floyd Abrams (after a pause): “Not yet.”

“I want people to love someone with whom they might profoundly disagree.”

That is how Melamede characterized her “biopic” during the Q&A with Abrams and Ari Melber following the screening. At one point, Melber (who once worked with Abrams) turned to him and said, “You remain respected but not as popular as you once were.”

How true of the man who, on the one hand, helped argue the Pentagon Papers case and defended Nina Totenberg in a confidential source case, but on the other hand successfully argued the Citizens United case and other campaign finance cases echoing its free speech message. Enter Professor Richard Hasen, the liberal campaign finance scholar, who voiced a respectful dissenting opinion.

How many people could appreciate (or even tolerate) a biographical work that was honest to the point of being uncomfortable? Well, here is how Abrams answered that question: “Any documentary on the sort of topic Yael tackled is extremely difficult,” he said. And then glancing over at Yael, he added, “I think this is a great achievement and thank you for it.”

Classic Floyd Abrams — the man who actually savors a taste of his own medicine!

Think of it: What kind of person defends controversial positions? Who sometimes defends the views of those whose gospel he detests? Answer: Floyd Abrams. His creed is also his calling card:

It just seems to be a human trait to want to protect the speech of people with whom we agree. For the First Amendment, that is not good enough. So it is really important that we protect First Amendment rights of people no matter what side of the line they are on.

Those are Abrams’s words, as he shared them with Renee Giachino in a June 2005 interview for the Center for Individual Freedom. Faithful to that creed, Abrams has devoted much of his career to defending everything from the right of newspapers to publish sensitive materials concerning national security to the right of for-profit corporations to contribute colossal amounts of money to political campaigns. Most recently, Abrams has defended Elon Musk’s X in the case of X Corp. v. Bonta (E. Dist., Cal., Sept. 8, 2023). See Ashley Belanger, “X sues Calif. to avoid revealing how it makes “controversial” content decisions,” ARS Technica (Sept. 8, 2023).

Given his expertise and extended career as a free speech lawyer, the name Floyd Abrams has become synonymous with the First Amendment. And because of both, he has been able to tailor and perfect certain views concerning free expression in ways that have helped to shape the law and explain it. This he has done in trial and appellate courts, in testimony before legislative bodies, in various speeches he has given, and in articles he has authored. In all of these ways, Abrams’ career as portrayed in this film is a unique and rich one. His critics notwithstanding, jurists, lawyers, scholars, journalists, and students have been the beneficiaries of his life in the law of free expression. 

There was much talk about the Pentagon Papers case, the one successfully argued by the team of Alex Bickel and Floyd Abrams. At a poignant point in the film, Abrams paused to quote from Judge Murray Gurfein’s 1971 trial court opinion:

A cantankerous press, an obstinate press, a ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know… These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form.

Those words capture the animating spirit of the man who sat in the audience watching himself recite them.

One more thing: There was also a romantic side to Melamede’s film that touched the heart every time the image of Efrat Surasky, Floyd’s spouse, appeared on the screen. So different and yet so similar to her man, one could not help but be moved by their love story, which continues even as a debilitating illness has taken its demanding toll on her. 

In the cinematic process, another side of Floyd Abrams was exposed — the side of him that fell in love with a carefree woman from Israel. That romance has thrived since they were married on Christmas day in 1963. Watching his children Ronnie Abrams (a federal judge) and Dan Abrams (a media persona) talk about their mother also revealed how even a man steeped in law needs a soul full of vitality to give life its richest meaning. By that psychological measure, one might well tag Floyd Abrams a romantic.

“Floyd Abrams: Speaking Freely” will premiere on PBS’s American Masters on Sept. 22, 2023.

Summary of ‘Floyd Abrams: Speaking Freely’

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Floyd Abrams: Speaking Freely is a biopic of the First Amendment as told through the story of one of its greatest legal advocates.

The film traces the path of this law from its early precedents in the 1960s to today, as pressing concerns around free speech have the nation questioning anew: what price are we willing to pay for free speech?

Floyd Abrams: Speaking Freely reveals how a legal titan helped transform the First Amendment from an oft-ignored principle into a bulwark of American democracy.

As the nation grapples with issues such as hate speech, censorship, the impact of money in politics, artificial intelligence and the dangers of boundless internet communication in a rapidly changing media ecosystem, Abrams continues to advocate for broad First Amendment protections — but acknowledges the increasingly heavy price we pay for such freedoms.

This topical and thought-provoking film offers critical context for how we came to this moment, where free speech issues have never felt more complicated and urgent, and explores the directions this still-evolving area of law might be going.

With Floyd Abrams: Speaking Freely, we aim to capture the complexity of free speech issues through the story of one man who has had such an extraordinary impact on this area of law. . . In a dynamic narrative [the documentary] brings together the drama of epic court cases, the inquisitiveness of journalistic enterprise and the personal and emotional spirit of a biopic. Ultimately, through the story of a legal titan we aim to better understand the impact of lofty legal principles on our daily lives, and what the future of this law may look like.

Featuring

Floyd Abrams / Dan Abrams / Judge Ronnie Abrams / Lee C. Bollinger / Vera Eidelman / Richard Hasen / Kashmir Hill / Jameel Jaffer / Adam Liptak / Ari Melber / Eleanor Holmes Norton / Theodore B. Olson / Kate Shaw / Emerson Sykes / Ai Hoan Ton-That / Nina Totenberg, and others.

Quotes from the film

“Sometimes it takes a long time for the public opinion to be formed. And then a moment comes when people start to say, that's all wrong. None of that makes sense. What are we doing there? The more we make it difficult to express dissenting views or controversial views, the less we can move, the less we can change, the less we can even understand. I mean all we can say now, I think, is that we have to lean very, very strongly in the direction of free expression, whatever the future may bring us.” — Floyd Abrams

“His greatest contributions really were in the area of making sure the press couldn't be stopped from publishing the truth and couldn't be punished for publishing the truth. And those things now wholly accepted, were not well-established before Floyd Abrams hit the scene.” — Adam Liptak, Supreme Court Reporter, The New York Times.

“There are a number of cases in which we are making arguments in court that Floyd has made 20 years ago or 30 years ago. Few people have done as much to shape the First Amendment as it exists today.” — Jameel Jaffer, Executive Director, Knight First Amendment Institute

“Floyd Abrams is known as almost a First Amendment embodiment. When he takes a principled position on behalf of the press or on the behalf of the publisher of a book, he's taking a position on behalf of all of us who need to know what's in that book.” — Ted Olson, Former Solicitor General (2001-2004); Partner, Gibson, Dunn and Crutcher LLP

“The fundamental insight of Floyd is that the American public has to be trusted and that the government has to be distrusted. I think this is the essence of the First Amendment so it's not saying anything new, he just powerfully articulated it.” — Lee C. Bollinger, Law Professor and President (2002-2023), Columbia University

“People who do journalism for a living have been very lucky to have Floyd Abrams on our side for generations.” — Nina Totenberg, Legal Affairs Correspondent, NPR

Related Resources

1. Bookends 

“I cannot imagine being more fulfilled at doing anything other than being a lawyer. There are some things that are unimaginable — the centerfield slot for the Yankees has always been filled — but of things that are within my imagination, I’ll stick at what I’m doing.” — Floyd Abrams (Ronald Collins, “Nuanced Absolutism”)

2. “Rearguing Masses v. Patton (1917),” with Floyd Abrams and Kathleen Sullivan, Thurgood Marshall Courthouse of the Second Circuit (Nov. 6, 2017) (intro. by Chief Judge Robert Katzmann)

View video

3. Videos: First Amendment Salons

• “The Supreme Court’s Term and the First Amendment,” with Paul Clement and Floyd Abrams (July 21, 2020)
• “The Soul of the First Amendment,” with Floyd Abrams and Adam Liptak, Yale University (April 5, 2017)
• “Reed v. Town of Gilbert & the Future of the First Amendment,” with Floyd Abrams and Robert Post, moderated by Linda Greenhouse, Floyd Abrams Institute, Yale Law School (Nov. 2, 2015)
• “McCullen v. Coakley: Free Speech & Abortion Clinics,” with Floyd Abrams and Steven Shapiro, moderated by Nadine Strossen, New York City (April 28, 2014)

4. Abrams on the defamation suit against Fox News

“First Amendment and Constitutional lawyer Floyd Abrams explains why he believes Fox News will have 'major problems' exercising first amendment protections in its defense against a $1.6B lawsuit from Dominion Voting Systems.” CNN (Feb. 27, 2023)

View video

Related

“Floyd Abrams blasts proposed Florida law to roll back NYT v. Sullivan protections,” First Amendment News 368 (Feb. 22, 2023)

2022-2023 SCOTUS term: Free expression and related cases

Cases decided

• 303 Creative LLC v. Elenis (6-3 per Gorsuch for the majority and Sotomayor for the dissent: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.)
• Counterman v. Colorado (held: First Amendment violated — 4 votes per Kagan with Sotomayor concurring in part joined by Gorsuch in part. Thomas filed a dissent and Barrett also filed a dissent, in which Thomas joined). (“In this context, a recklessness standard — i.e., a showing that a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another’ . . . — is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats — with diminished returns for protected expression. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment.”)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny non-commercial use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.) (This is from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)
• United States v. Hansen (7-2: Title 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encouraging or inducing” illegal immigration — forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law and is not unconstitutionally overbroad.)

Review granted

• Vidal v. Elster
• O’Connor-Ratcliff v. Garnier
• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC  (argued March 22)
• United States v. Hansen (argued, March 27) (Volokh commentary here)
• Counterman v. Colorado (argued, April 19)

Cert. granted and case remanded

• U.S. v. Hernandez-Calvillo (cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the 10th Circuit for further consideration in light of United States v. Hansen).
• Klein v. Oregon Bureau of Labor and Industries (cert. granted, judgment vacated, and case remanded to the Court of Appeals of Oregon for further consideration in light of 303 Creative LLC v. Elenis).

Pending petitions

• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• O’Handley v. Weber
• Center for Medical Progress v. National Abortion Federation
• Mazo v. Way
• Tingley v. Ferguson
• Frese v. Formella
• National Rifle Association of America v. Vullo
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice

State action

• O’Connor-Ratcliff v. Garnier (cert. granted)
• Lindke v. Freed (cert. granted)

Qualified immunity

• Novak v. City of Parma (cert. denied)

Immunity under Foreign Sovereign Immunities Act

• NSO Group Technologies Limited v. WhatsApp, Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)

Section 230 immunity

• Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)

Review denied

• Mobilize the Message v. Bonta
• North Carolina Sons of Confederate Veterans v. North Carolina Dept. of Transportation 
• Price v. Garland 
• Keister v. Bell
• Morgan v. Arizona

Previous FAN

FAN 393: “A few reflections on alienation and speech in our post-modern times”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of Mr. Collins.