♪♪
-The show "Sensation" is sparking demonstrations
at the Brooklyn Museum of Art.
And the show hasn't even opened yet.
-Let's stop this nonsense now.
-Pigs in formaldehyde and cows dissected
and have their parts put out there.
-The Brooklyn Museum's controversial painting
of a Black Virgin Mary splattered with manure
is drawing more fire from city hall tonight.
-This should happen in a psychiatric hospital,
not in a museum.
-It was an enormous exhibition.
It caused a bit of commotion.
[ Indistinct shouting ]
-They say it's art, they pass it off as art.
I say this damn painting
should be thrown the hell out of there.
-I had death threats.
Bomb threats.
People attacked me on the street.
I mean, I was an art museum director.
-They seem to have no compunction
about throwing dung
on important religious symbols.
I'm not going to have any compunction
with trying to put them out of business.
-Almost $35 million was going to be removed
from the museum's funding.
All of our employees
thought that they were going to be fired.
-The language, the tone, the music of what the mayor
is saying is the same as that of dictators.
-Floyd Abrams was on TV and radio
saying that this was wrong.
-This is a serious, profound First Amendment issue.
It's sad to see good lawyers make such bad arguments.
-We made an appointment. We got to see him immediately.
Floyd was going to take this on.
This is, you know, clearly a First Amendment case.
And we exhaled for the first time for weeks.
-I'll ask our attorney, Floyd Abrams,
to take that question.
-The spirit of the First Amendment,
as well as its letter,
must permit this exhibition to go on
and this museum not to be punished for doing so.
-During the months of legal wrangling
over the controversial "Sensation" exhibition,
the Brooklyn Museum fought back and won.
-The court said, and I'm paraphrasing here,
"You're not making government weaker
by forcing it to support unpopular speech.
You're making it stronger
by forcing it to support the First Amendment."
-They may not decide on their own that
because they don't like a picture
or they don't like a book,
that the public doesn't get to see the picture
or doesn't get to see the book.
-An overflow of art lovers, protesters
and the curious streamed into the Brooklyn Museum today.
-In order to be able to discuss it either way,
I'd like to see it before, you know,
fighting against it or fighting for it.
-The colors, the mosaic effect, the blending of the colors.
Yes, it is beautiful.
-I can't believe that this caused a commotion.
-Floyd, you know, was our hero.
♪♪
-Floyd Abrams is known as
almost 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.
♪♪
-Everybody in journalism knows who Floyd Abrams is.
You know, he's quite a lion in the field.
-He's a legendary figure
in the world of the First Amendment.
And his legacy is tied to the First Amendment
that we have today.
Whether he deserves credit for that or blame for that
I think is -- is an important question.
Probably some of, you know, some of both.
♪♪
-Sometimes I think of the First Amendment
almost as one of his clients, if you will.
-The fundamental insight of Floyd
is that the American public has to be trusted
and that the government has to be distrusted.
I think is the essence of the First Amendment
so it's not saying anything new,
he just powerfully articulated it.
-If there were the history of defense of the First Amendment
in modern times,
there probably wouldn't be a chapter about Floyd Abrams.
There'd be a -- It would be part one.
[ Chuckles ]
[ Keyboard clacking ]
-I'm gonna be throwing away a lot of stuff.
We're moving to one of these glass places.
Every office the same size,
every -- the furniture the same in every office.
Oh, here are earlier drafts of a book that I wrote, so...
Ah.
This is a newspaper clipping recalling July 9, 1936,
which happened to be my birthday
and was the hottest day in the history of New York City.
These are the files, one of my favorite cases,
the Brooklyn Museum case.
We worked so hard on these cases
that you're throwing
a little bit of yourself away.
♪♪
I went to Cornell.
I started when I was 16.
I had a stuttering problem,
which was sometimes embarrassing.
In college debating, the dangers were greater and more immediate.
But stutterers learn ways to avoid problems.
It does lead you to be pretty good about synonyms,
other articulations.
When I was a junior, I became the head of our debating team.
We were in a contest at McGill,
and that night we were taken to dinner by the Canadian team.
There were toasts.
And I remember I toasted the queen.
[ Cheers and applause ]
And the Canadian stood up and said,
"To the American Constitution with all its amendments."
And I thought, "That's good."
It's nice to think it, without a queen, without a king,
they didn't speak about the president or the presidency
or our Supreme Court.
No, they spoke about the Constitution.
This country came into being after a revolution.
The leaders of the country
had lived through limitations on speech.
So when a written constitution
and what became the Bill of Rights came into being,
there was great clarity that there could not be legislation
which limited freedom of speech and freedom of the press.
-The First Amendment says
Congress shall make no law.
Congress can be read as government, right.
So it's about restricting the government's authority.
The reason to protect free speech
is because when we set up societies
and we give certain people power over others,
we want to have limits on that power.
-There was concern
that this newly empowered federal government
could deprive its citizens of basic human rights
that are articulated in the First Amendment.
What that doesn't answer and what they did not answer then,
is what is protected under the First Amendment.
-There are things that you're not allowed to say.
Language that's harassing.
True threats. Fighting words.
-Perjury. Libel.
Lots of situations where speech is not protected.
But in general, we have a system
which more broadly protects speech rather than narrowly.
It's not just aspirational.
It's law.
And it's not poetry.
It's law.
It is there to be used, to be asserted, you know,
like the cross in front of the vampire
in circumstances in which...
our government comes down unacceptably against us.
♪♪
At Cornell I was in ROTC military training.
Graduated in uniform.
I spent six months at Fort Lee.
I did not have the most nation-saving position.
I was in charge of a shoe repair unit.
And then I went to law school.
♪♪
These are the dormitories in which I lived
for my three years as a law student.
Yeah.
I bet that tree was there.
[ Chuckles ]
Ah.
After law school,
while I was clerking for a federal judge in Delaware,
I met my wife, Efrat.
♪♪
I remember taking her to a party.
I had a good time at the party and I asked her,
"What did you think of it?"
She said, "All you people do is talk --
Kennedy and Nixon
and Kennedy and Nixon -- as if you know these people.
There was no dancing."
♪♪
-One thing I love, my dad, when he used to say
he liked the people in the smoking section.
He liked interesting people, fun people.
And of course, it applied to my mom.
He loved the fact that she just says what she thinks
and, you know, said what she thought about everything.
-My dad always respected
her sort of common sense take
on things.
-She has tended to think that a lot of questions
can be answered a lot more easily than I have thought.
Or to put it differently, that there was an answer.
You ask a question,
you get an answer to the question, not an essay.
And that was really true from the time I met Efrat.
♪♪
-My mother's older than my dad,
and she was more cosmopolitan.
I think my mother was very helpful in assuring him
that he would succeed.
If it hadn't been for my mom,
he would have stayed in Delaware.
My mother insisted that she wouldn't marry him
if he stayed in Delaware.
And he moved,
and he had a hard time finding a job as a Jew.
Cahill Gordon was one of the only major New York law firms
at that time that accepted Jews.
It was a very Catholic firm.
Catholics and the Jews aligned
in that way of being the outsiders.
-The Cahill Gordon law firm
represented NBC for a number of years.
I came to meet reporters who I found charming,
impressive, doing God's work.
[ Indistinct conversations ]
In 1968, the Democratic Convention in Chicago.
There was violence on the streets.
There were reporters being beaten up.
♪♪
And then there were reporters being subpoenaed
to testify at trials.
It was really then
that I started to get attached
to a notion of the First Amendment
as being so central
to the protection of liberty.
There was very little law at that time.
We were making up, in a sense,
First Amendment law as we went along.
-You know, First Amendment as we know it today
is relatively recent, only 100 years old.
Most people think First Amendment
beginning of the Constitution, yes, it was there,
but no Supreme Court cases interpreting it until 1919.
[ Film reel clicking ]
-With the First World War and really the establishment
of the First Amendment as we know it today,
the most important First Amendment cases
were often national security cases --
a conflict between individuals' right to speak
with national security justifications
offered by the government.
[ Film reel clicking ]
-So only a hundred years.
And then in fact, it really only came together
in the way that we understand it today
in the 1960s and '70s.
-Freedom. Freedom.
Freedom.
-The gains we've achieved in the civil rights movement
we owe almost entirely to the First Amendment.
♪♪
It was the ability to march, to speak,
to engage in demonstrations.
[ Horn honks ]
♪♪
-The Supreme Court,
to the surprise of a lot of people,
started saying that schoolchildren
have First Amendment rights.
A kid that went to school with a black armband
protesting the war in Vietnam had a right to have it.
-Some of the really important cases
in which we sort of see the contemporary kind
of emergence of this conception of the First Amendment
do critically involve the press.
-The great case was
New York Times against Sullivan.
-Southern officeholders wanted to enforce Jim Crow laws
and wanted the Northern press to shut up about it.
[ Indistinct shouting ]
-In a supercharged atmosphere,
the racial antagonism flared into violence.
-That's what these libel suits were designed to do,
burden the press and get The New York Times
and CBS News and other news organizations
to stop covering the civil rights movement.
And the court said, no,
we're going to change the rules around libel
so that doesn't happen.
[ Cheers and applause ]
-It was a political refashioning.
One of the most exciting periods in modern history.
[ Indistinct shouting ]
That's Floyd's beginning period.
-Those cases are part of what have given us
the framework that we have today.
But with respect to press freedom,
and particularly press freedom
relating to the publication of national security secrets,
which is a huge part of press freedom,
there's no case more important than the Pentagon Papers case.
-This weekend,
portions of a highly classified Pentagon document
came to light for all the world to see.
The New York Timesbegan publishing parts
of a voluminous report that the Pentagon had drawn up
on the causes and conduct of American involvement in Vietnam.
-The Pentagon Papers were 7,000 pages
commissioned by Defense Secretary Robert McNamara,
addressing the question of how we got into
the then raging war in Vietnam.
-There was real basis to believe
that the government misrepresented,
if not lied to the American people
over a long period of time regarding the war.
♪♪
-What theTimeshas done is placed itself above the law.
They say it's our responsibility to print it.
Now God dammit you can't have that thing in a free country.
Freedom of the press does not --
is not the freedom to destroy the integrity of the government.
-The New York Times'lawyers at the time
was a law firm named Lord Day & Lord,
and the managing partner was Herbert Brownell,
who had been the attorney general
for President Eisenhower in the '50s.
[ Indistinct conversations ]
WhenThe New York Times got the papers,
the advice they got was that the patriotic thing
forThe New York Timesto do was to turn the papers
back to the government forthwith.
-Their senior partner was quoted as having said,
"I don't want to touch them.
It's a violation of law."
They told theTimes it was unpatriotic.
They told theTimes,
the publisher, Sulzberger, could go to jail.
They told Mr. Sulzberger
that his father wouldn't have run it.
-This could backfire on theTimes.
The main thing is to cast it
in terms of doing something disloyal to the country.
-That's right. -This risks our men, you know.
-Do you feel, Mr. Sulzberger,
that the national security
is endangered as charged by the administration?
-I certainly do not.
This was not a breach of the national security.
We gave away no national secrets.
We didn't jeopardize any American soldiers
or Marines overseas.
-When I interviewed Mr. Sulzberger,
he held out his hands and said, "I'm ready to go if I have to."
-The lawyers had urged them not to publish.
TheTimeswent ahead and published.
TheTimescalled its lawyers.
Their lawyers came over and said, "We won't represent you."
And so theTimesfound themselves without a lawyer.
[ Telephone rings, clicks ]
1:00 in the morning my phone rang
and it was the general counsel of theTimes,James Goodale,
who had already called a professor of mine
from Yale Law School, Professor Bickel,
to ask him to lead a team in representing theTimes.
And I was stunned. Stunned to get the call.
[ Indistinct conversations ]
♪♪
-I was a young reporter
working for the late greatNational Observer,
and they sent me to New York
to cover the temporary restraining order.
I remember being scared, really scared.
If the government could stop The New York Times,
the Gray Lady, the most important newspaper
in the United States,
at a time when newspapers were still king,
that meant they could stop anybody from publishing
for whatever they called national security.
-Well, it's a prior restraint on publication.
They're trying to tell us that we can't publish in advance
of seeing what we are going to publish.
♪♪
[ Horn honks in distance ]
-The first thing I remember coming up these stairs then
was I'm not going to know where the courtroom is.
Everyone's going to look to me.
And when we met with Judge Gurfein
for the first time,
he said in so many words,
"I'm sure we're all patriotic here
and we're all gonna try to do
the right thing for the country."
Which we took as very threatening.
[ Laughs ]
-We've got a good judge on it,
Murray Gurfein who was -- -Oh, yeah.
-He's new and he's appreciative, so...
-Good.
-The trial judge, Murray Gurfein,
had just been confirmed.
He was an appointee of President Nixon.
So here this judge on his first day as a judge,
first case winds up with the Pentagon Papers case.
-The judge asked The New York Times
if they would agree to a temporary restraining order.
-TheTimes'answer was no.
Barring the press even for a day
is itself an egregious violation of the First Amendment.
-I think that aggravated the judge
and then within a short period of time,
he granted the temporary restraining order.
[ Bell ringing ]
♪♪
-No, I was busy.
We had to prepare for the argument that I made,
which was not to turn over the documents.
-Speaking for theTimes, attorney Floyd Abrams.
"We are asserting," he said, "the rights
ofThe New York Times and the public
under the First Amendment."
-We were drafting our opposition,
interviewing witnesses, making a decision,
should we call an expert witness.
In the hearing in front of Judge Gurfein,
an admiral testified
and another very high ranking military person,
and it became clear that they really had no idea
what's in the Pentagon Papers
or how much harm, on what basis it could do.
They just thought things ought to be quiet.
These are secrets.
Why do you reveal secrets?
It shouldn't be allowed.
-It was well after 2:00 when Judge Murray Gurfein
finally handed down the decision in favor of theTimes.
-Judge Gurfein was a levelheaded
and serious questioner of the government witnesses.
-Judge Gurfein had come out strongly in favor
of freedom of the press.
"A cantankerous press," he said, "an obstinate 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."
I thought it was maybe the best statement
of the value of the First Amendment
and its centrality to our legal system
and the protection of the press.
-The Justice Department then appealed Judge Gurfein's ruling,
and it won another restraining order against theTimes
until the appeal can be heard on Monday morning.
In all probability, it will go further than that --
all the way to the Supreme Court by midweek or sooner.
-If Judge Gurfein had written a sort of a narrow opinion,
"You can publish most of what you want,
but you can't publish this, this and that,"
it would have been harder to make sort of full throated
First Amendment arguments in the Supreme Court.
On the argument day we had written all we could,
urged Bickel to focus more on this and less on that.
-Prior restraints fall on speech
with a special brutality and finality.
If a criminal statute chills speech,
a prior restraint freezes it.
We believe that the only proper resolution of the case
is the dismissal of the complaint.
-For two and a half weeks,
two constitutional principles have clashed,
the government's view of our national security
versus the newspaper's view of their freedom to print,
and the newspapers won.
[ Cheers and applause ]
♪♪
-When the vote came down 6 to 3,
streets across America erupted with applause and relief
that the press had won.
-People look back now today and say,
well, obviously the Pentagon Papers
should have been published.
I think it's a very lucky thing that the Supreme Court upheld
the right of a free press to publish.
♪♪
-I mean, think of it again.
A war.
Prisoners of war held.
Efforts at negotiations under way.
And the press comes along and publishes
this secret, secret bunch of documents.
We're really the only country prepared to take these risks.
-This case has been and remains one of the key pillars
of press freedom in the United States.
Every day, you know,
you can read government secrets
in the pages ofThe New York Times
and every other major newspaper in the country.
That's traceable to the Pentagon Papers.
-I think the publication of those documents is long overdue.
-Yeah, I just feel
like everybody should know what's going on.
And I don't like the idea
of our government having all these secrets.
♪♪
-I was in India in my 20s.
A law school classmate of mine, Indian woman,
took me to her fortune teller.
And he announced that before I was 35...
I would go to the country's capital
and do something that would make me famous.
The Pentagon Papers case began
when I was 34 years and 11 months
and ended a week before my 35th birthday.
♪♪
A libel case.
-CBS are being sued by Colonel Anthony Herbert
for $45 million for libel.
It's no exaggeration to characterize
the "60 Minutes" case as the most significant
free press case in years.
-What we want to avoid
is any kind of system of law which allows
"Why did you print that story instead of another story?"
-The press was popular, rich, powerful --
investigative reporters like Woodward and Bernstein
were heroes, and Floyd was representing them.
-This is from the Nebraska Press Association case.
-Attorney Floyd Abrams said
the power to order prior restraint
is the power to destroy the media.
-Floyd Abrams is nationally known
as a defender of the freedom of the press rights in court.
-There was a period of time in which I was the only, quote,
First Amendment lawyer, unquote.
I think those words had not existed
before my stroke of good fortune.
♪♪
-You know, Floyd was,
in those days
like a legal rock star,
and people really flocked to him.
That's what you wanted to do.
You wanted to come out of law school, be a lawyer,
you might want to be a First Amendment lawyer
and work for Floyd Abrams.
-I wouldn't be where I am professionally or otherwise,
without the way that he mentored me
and helped me think through things in a really big way,
which he didn't have to do.
-He was just sort of insatiably curious.
Genuinely interested in the other side
of absolutely everything.
To the point, as an associate,
it sometimes was, you know, too much.
-There must have been 10 of us at Cahill
who were in the same position as me,
who worked for Floyd and then got jobs,
in-house at various media companies.
And we kind of went out there
as the sons and daughters of Floyd.
-Press law for a long time was evolving,
and Floyd in particular was making new gains for the press.
-I had a very major case in California, in San Francisco.
-Can television be held accountable
if the content of one of its shows is imitated in real life?
-A girl had been attacked on a beach by three other girls
in a manner similar to what was shown the night before
in a docu drama on NBC.
And the mother of the girl was claiming
NBC was responsible for the harm done to her daughter.
Among the many briefs submitted
on behalf of NBC in this case
was a very telling one from the American Library Association,
saying, in effect, "If NBC loses this case,
we don't know what books we're going to be allowed
to keep on our shelves."
If somebody takes out a book and reads something
and supposedly gets some idea and goes and does something
and a lawyer takes the position that he did it
because he read it,
that there'll be a lot of problems.
What I fear is that a loss in this case will necessarily lead
to a kind of blandness,
a kind of avoidance of television
dealing with with hard and real and poignant social problems.
So that raised one of
these issues where if we win, life goes right on.
But if we lose, everything changes.
-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.
-What has been missing from the public
is what we came to court to seek.
The right of the public not present in court
to hear the tapes that everyone in court heard.
-He brings the court in,
talks to the court as a colleague.
He does not overwhelm with drama.
And it just gets laid out in a way that it seems obvious
that his side should win.
-I thought about the situation of a lawyer
arguing in the Supreme Court, of me, of anyone arguing.
He or she is alone
like a batter in baseball.
One person by himself or herself
facing nine...
and even one of the nine can ruin your performance.
-To urge upon you today a ruling which would be
unthinkable in any nation in the world except ours.
That it is, in our view, entirely consistent
with American history, makes it no less remarkable,
but simply points to the remarkable nature
of that history, for what we would ask of you
is nothing less than a renunciation of power.
-Your person, your judgment,
your wisdom benefits your argument.
People ask themselves, do they want to live
in the world that you're arguing for?
♪♪
[ Airplane engines roaring ]
-I was on an airplane flying to San Francisco
with a number of cases terribly active.
And tears came out of my eyes.
I didn't even think I was depressed.
Just tears started coming as a response
to the totality of the obligations I was under
and the risks my clients were at.
It was -- You know, sometimes it could be really tough.
This, one of my favorite things in my office.
This is from my daughter to me when she was nine.
"Love is more important than books and studies."
-[ Laughs ]
-"Have a great Father's Day.
Love."
-He did work hard, and on weekends
sometimes we went with him to the office.
You know, we'd play on the now old fashioned typewriters
and get Mr. Softee,
which I now realize he liked a lot more than we did.
-A lot of the time,
the activity was
going to the office.
Dad working and us drawing or eating cookies.
-We used to play soccer right here.
That's a perfect Sunday thing to do.
-He worked very often till 10:00, 11:00, midnight
on a regular basis.
I remember the sound of the door closing when he would get home.
We'd get so excited that Dad was home.
♪♪
-We didn't have fairy tales at my house.
We had cases that I would talk to them about
and when I would go in to say good night to them,
that's what it was.
"What did you do today? You have any good cases?"
And all they wanted was for me to stay later.
And I would.
-My brother and I would try
and keep him in our rooms after bedtime.
So when he was ready to go,
we would then say, "Tell us about your cases."
He would tell us about his cases.
And they were suspenseful and sometimes moralistic,
and the law seemed noble and even romantic
and the lawyers were heroes.
-Floyd was my lawyer in a time
of great trial and tribulation.
-It was a bombshell that almost derailed
Clarence Thomas' confirmation to the Supreme Court --
Anita Hill's charges that Thomas had sexually harassed her.
Now, the reporter who broke that story is being asked
by a Senate committee where she got her information.
You are willing to go to jail over this.
What are the chances that it will come to that?
-I have no idea.
I like to think the chances are small. [ Chuckles ]
And certainly I don't want to go to jail.
And I'm no braver than the next reporter.
But this really is a matter of the --
of an essential professional constitutional principle.
And I am not going to reveal my source.
And if that means I have to go to prison
then I have to go to prison.
-It was the biggest scoop I ever had
and will ever have in all likelihood.
♪♪
[ Gavel pounding ]
♪♪
I was at a hearing of the Judiciary Committee
to confirm Clarence Thomas.
Joe Biden was talking about this confirmation
was not going to be about personal matters.
-Some have asked why we have not asked certain questions.
-And there had been no discussion of personal matters.
So I thought there, something was up,
but I had no idea what.
♪♪
Then I started kicking tires.
And pretty soon I found out that this law professor,
Anita Hill, had made allegations of sexual harassment
against Clarence Thomas, for whom she had worked.
It ran on "Morning Edition."
I think it was a Sunday morning. -X rated and extraordinary.
Millions glued to their television sets
as senators scrutinized the sexual harassment charges
against Supreme Court nominee Clarence Thomas.
-The Anita Hill allegations disqualified Clarence Thomas
as far as many of us were concerned.
A number of us in the House walked over to his confirmation
to oppose his appointment to the Supreme Court.
-Thomas won confirmation despite the allegations,
but the Senate still wants to know
who leaked them to National Public Radio.
-The way they were talking about me,
as if I'd done something
really wrong and criminal.
And I remember going home that night
and suddenly said to myself,
they're going to subpoena me.
They're going to investigate this,
and they're going to subpoena me.
And I want Floyd Abrams as my lawyer.
-I had represented years before
aNew York Timesjournalist, Myron Farber,
who was called to testify in a New Jersey case.
He refused to reveal sources.
It was a criminal case against doctors
who were accused of essentially killing patients.
And theTimeshad done big stories about it
and had confidential sources.
Members of the New Jersey Supreme Court
were asking me, almost disbelieving me,
"You're saying in a criminal case
that a journalist doesn't have to reveal information?"
I said, "I don't have to reveal information
and Idohave the information.
You wouldn't call me, put me in jail.
I have an attorney-client privilege,
he has a journalist-source privilege."
And I thought it was a great argument, to no avail at all.
And so he was jailed for some time.
-The first thing he said to me was,
"We don't have a legal leg to stand on."
-That's not -- That's not the way I would say it.
It's a long time ago, so...
It's a tough case legally.
-"So we have to have a different strategy.
Our strategy is that you will do every interview
you're asked to do."
-NPR reporter Nina Totenberg broke the story.
-The interview with Anita Hill was September 23rd.
I was so scared.
[ Chuckling ] I imagine that
that's hard for people to believe.
But I was so scared that I asked them
if I could have my lawyer on set with me.
-Floyd Abrams, counsel for National Public Radio.
-If journalists reveal their confidential sources,
there won't be any confidential sources.
And if that gets violated, the public just won't have
the sort of information that all of us need.
-Ultimately, I was called to testify and refused to testify.
I mean, I went in and I didn't answer the questions.
-It looked very threatening.
And then the senators decided
that it wasn't worth the bad publicity for them.
-[ Chuckling ] It'll go to my grave with me.
My husband doesn't know.
Nobody knows who my sources were.
-The U.S. Supreme Court has never said,
certainly not in so many words,
that there is protection
for confidential sources of journalists.
So as a result, it has fallen to members of the press
who gather this information,
I have to use the word bravely, and at great risk to themselves,
to say, "I won't tell you how I got it."
-Judith Miller, highly regarded journalist
forThe New York Times,
currently faces 18 months in jail
for refusing a court order to testify about her contacts
with confidential sources.
-Judy Miller was a reporter,
and in this particular case,
she was asked to testify in the prosecution of Scooter Libby,
Cheney's chief aide.
-If there is a leak
out of my administration,
I want to know who it is.
-Maybe the most significant clash
between federal prosecutors and the press in 30 years.
So, not surprisingly, Floyd Abrams is involved.
-The particular leak that was at issue in this case
was something that she had not written about,
but which the government, the prosecutors,
at least thought she might well,
or indeed they were sure she must have information about.
-They knew that I spoke to a lot of the people
who would be the targets of such an investigation.
Suspected leakers of information.
They wanted all of the notebooks for a period of months.
They wanted all of my records.
And that would expose not just Scooter Libby,
but a great many potential sensitive sources.
That I really didn't have much of a choice.
I just had to do whatever I had to do to protect not just Libby,
but all of the sources, all of the people I had dealt with,
or I would never work in that town again.
[ Chuckles ]
-Mr. Abrams,
what federal law is it that allows a reporter
to withhold his testimony from a grand jury?
-Well, it's called the First Amendment.
Reporters have a right not to reveal their sources
because that's a part of newsgathering.
-Right. That's the position you're staking.
Is that position settled law?
-No, it is unsettled law, in fact.
-One of the first conversations Floyd and I ever had
was about the need for a federal shield law.
Many states have shield laws to protect journalists
from being hauled up before grand juries
and questioned about their sources.
But unfortunately, national security is a federal issue.
Our goal was to stretch the protection
to try and advance it.
-So when she was called to testify,
she refused to do so.
And we sought review by the U.S. Supreme Court.
-Judith Miller in the aftermath of her flawed work
in the run-up to the Iraq War
had become a controversial figure.
-She didn't have many allies, let's put it that way.
And part of that was because of the way she had reported.
-I had gotten a lot of criticism for my own reporting
on weapons of mass destruction
in Iraq.
From 9/11 until the war began
was one of the most fraught periods in American journalism.
The pressure to produce at that point,
to tell Americans what had happened to us and why.
It was a period in which I wrote more stories
than I had ever written before.
Some of them were certainly
not as well-sourced as I would have liked.
-Elements in the press
are outdoing the Special Counsel
by far in becoming mini prosecutors.
There's a quite concentrated effort
to really, you know, bring down Judy.
It was a case and probably the only one I had
involving confidential sources
in which the journalistic community,
or at least a good part of it,
you know, was never really persuaded
that they were sure they wanted us to win.
-Nina's case, everybody on the liberal end of society
would think it's easy
and she should be able to protect her sources.
Judith Miller, the source she was protecting
was a member of the Bush administration,
quite unpopular in liberal groups.
So people may have flipped a little bit
on which side they were on.
[ Indistinct conversations ]
-Judy Miller today joins a long train of journalists
throughout our history
who have insisted on protecting
the confidentiality of their sources.
♪♪
In a sense, I was...
too stuffed with knowledge about the area,
about the arguments, about the different positions.
-Floyd had a hostile court and a bad day.
It was clear he was going to lose.
-The New York Times the next day on page one --
I remember that --
referred to the fact that the judge had asked me
the same questions five times.
Now again, very hostile judge, made no difference.
But...
certainly did to me.
-You know, when you're representing individuals
and there's so much at stake for them on a personal level,
that's really hard.
I remember that being hard for him.
-We lost.
[ Chuckles ]
To this day, there is no sort of flat
written-out protection
for confidential sources of journalists.
And I think that that's -- that's a loss.
I mean, not just that we lost the case,
but a loss -- a loss to the public.
♪♪
All these files are Judy Miller files from one case.
[ Files thud ]
[ Siren wails in distance ]
[ Horn honks in distance ]
This is a family picture.
My mother and father.
This is my uncle, who I learned when I was 12 years old,
was a Republican, I couldn't believe it.
I had heard a labor union broadcast on the radio
opposing the Taft-Hartley Labor Act.
And my uncle, pleasantly enough, but authoritatively objected,
started arguing, and this and that.
And I said, "Uncle Barney, you sound like a Republican,"
as if -- and he was my first. [ Chuckles ]
♪♪
-Certainly in the '70s, Floyd was the name
that would have come to me immediately
when I thought of a advocate for the First Amendment.
-Well, Ted and I have always been on opposite sides
politically.
He's been connected with about every Republican administration
of which I disapproved through the years.
I think we found we had in common some views --
on the First Amendment, for example.
-Among my first clients
were people in the outdoor advertising industry.
Some people think of that as billboards.
Some people felt that they were unattractive.
And cities started banning billboards or banning signs.
We were representing the sign companies
saying that you can't
just ban signs altogether.
And the Supreme Court agreed to hear that case.
And I went to my clients and I said,
you know, it's a First Amendment case,
but people don't automatically associate billboards
or outdoor advertising signs with the First Amendment.
It will be helpful to your case if we had someone
who immediately when they walked through the door,
the justices would say,
"Oh, that must be a First Amendment case."
Let's get Floyd Abrams.
-I will never forget a justice
of the California Supreme Court saying,
"You want to put a billboard
on every redwood in this state."
And I said with all the dignity I could muster,
[Chuckling] "No, I don't want to do that.
My client doesn't want to do that."
We think downtown San Diego is a place
where banning of all billboards is a banning of speech.
I mean, bear in mind, billboards,
while dominantly commercial, are also political.
I mean, they're used for speech,
whatever sort of speech people want.
We wanted to show them that the billboards in San Diego
were not just pure commercial speech,
which gets less protection than political speech.
And so we sent a photographer out.
And here are the -- are the billboards.
This was an ad by the police in San Diego
asking for more money.
"Support America's first environmental strike.
Don't buy Shell!"
"Get them home." The P.O.W.s in Southeast Asia.
They finally ruled by a very close vote in our favor.
The application of the First Amendment
to a variety of actions,
you could say, of corporate America or of businesses,
makes sense to me
that it was protected by the First Amendment.
That's very controversial.
-The '70s were really the sort of turning point
in the role of the corporation
and the relationship between money and speech.
-Commercial speech is not wholly outside the protection
of the 1st and 14th Amendments.
-The Virginia pharmaceutical advertising case
was about whether a state could limit corporations
from advertising about the pharmaceutical products.
And in that case, the court said,
no, there are these corporate speech rights.
And then '76 is also the year of Buckley versus Valeo.
And that isn't a corporate speech case,
but it is a money speech case.
In Buckley, the right to spend money in an election
was a free speech right.
On the one hand, you see money is speech.
And on the other hand,
you see corporations have free speech rights.
Each of those then grow and expand.
And there's basically a 30-year fight.
The court goes back and forth and back and forth
on how to deal with money in politics.
And then in Citizens United, grant corporations
the right to spend unlimited money in elections.
-Today, the Supreme Court of Chief Justice John Roberts
declared that because corporations
had all the rights of people,
any restrictions on how these corporate beings
spend their money on political advertising
are unconstitutional.
In the case Citizens United v. Federal Election Commission,
the lawyer is Floyd Abrams.
He will go down in the history books
as the Quisling of freedom of speech in this country.
-This is an extraordinarily triumphant day
for the First Amendment.
The court has ruled that corporations
may participate freely and openly
and spend money on electoral and political matters.
-In short, there are now no checks
on the ability of corporations or unions
or other giant aggregations of power to decide our elections.
None.
-Citizens United was about
a documentary about a political candidate
financed by a small nonprofit advocacy group.
Available only on video on demand.
[ Eagle cries ]
-Ruthless. Vindictive.
-Liar is a good one. -Scares the hell out of me.
-A hit job on Hillary Clinton.
That's what I thought it was.
And yet what is really at issue here
is something at the core of the First Amendment,
political speech.
I mean, there's no speech more important
to be independent of and not dependent on government.
-My client, Citizens United, had made a documentary
about someone running for president,
for heaven's sakes.
Their position was people ought to be able to see
the issues about presidential candidates,
it's a documentary, for heaven's sakes.
It was a felony.
You could go to jail for five years
for violating those provisions.
And so we defended Citizens United.
Floyd Abrams appeared in that case
supporting the position that we were advocating.
-I represented Mitch McConnell,
not my favorite public servant.
-So let me turn first to Floyd Abrams.
-But I agreed with his views on this.
[ Clears throat ]
Thank you, Senator.
I'm delighted to be here in rather unaccustomed company.
[ Laughter ]
It's the oldest of clichés
that politics makes strange bedfellows.
It is not at all strange that people who disagree politically
can come together in defending the First Amendment.
Right away we're in the area
where there is the absolute most First Amendment protection.
Nothing is more important than speech about who to vote for.
And maybe nothing, nothing, nothing is more important
than who to vote for for president.
That was an easy case.
That must be one in which the First Amendment carries the day.
-I actually was at the Citizens United argument.
I was a young lawyer
in the Obama White House Counsel's office,
and the White House would often send lawyers to the court
for kind of big, significant arguments.
Citizens United was initially a pretty narrow case.
It's actually not really about a ban on anything
but about just like a limitation on
when you could spend money and how you could spend money.
But then the court, when everyone was expecting,
you know, the case to be decided in June of 2009,
the court conspicuously set the case for re-argument,
reframing in much, much broader terms.
-Mr. Abrams.
-Mr. Chief Justice,
and may it please the Court, the first...
-He didn't go small. He went big.
He said, you know, this is an opportunity.
You could decide this case on narrow grounds.
And there's good arguments to be made
that the court should have decided in the narrow grounds.
But, justices, you should please make a big, bold statement
saying that the First Amendment protects
independent spending by corporations
in candidate elections.
-The First Amendment rights here transcend
that of Citizens United.
There is a blotch to public discourse
caused as a result of this congressional legislation.
-Last week, the Supreme Court reversed a century of law
that I believe will open the floodgates
for special interests.
To spend without limit in our elections.
[ Applause ]
-Money out. Voters in. Money out.
-Exxon or Microsoft could spend $1 million or $10 million
on ads against the candidate.
And in the name of free speech, that you find that acceptable.
-Yeah, I'm okay with that
in the same way I'm okay with the fact
that CNN andThe New York Times can speak out as they choose to.
-I object to the notion that a corporation
is equal to an individual.
-The fact that we're suspicious of corporations sometimes
and of unions sometimes is just not a good reason
to say that they have to be silenced.
[ Indistinct shouting ]
-These campaign finance laws served these really central,
arguably in a democracy, sacred values
of allowing for responsive self-government.
Protecting against corruption.
I think that I'll call it the Floyd camp,
got it wrong, they got the First Amendment wrong.
It's not serving First Amendment ends
to call these kinds of corporate behaviors free speech.
-One thing that happens when you attach the First Amendment
to a new activity
is that you make it very difficult
for the government to regulate that activity.
Now, that is, you know, in some ways, the whole point,
that's the point of the First Amendment
is to make it difficult for the government
to regulate a certain category of activities.
But it's very important that you get that line right.
-In Citizens United,
the court rejected what's come to be known
as the anti-distortion argument.
It's the idea that someone who has
hundreds of millions of dollars to spend on politics can do that
while the rest of us who don't have that
can't do that.
That means we have a very unequal playing field.
Money doesn't buy elections,
but spending money is like buying lottery tickets.
And the more money you have to spend,
the better chance you have of winning that lottery
and then being able to have outsized influence
over a candidate.
[ Indistinct shouting ]
-The argument against too much money
is that the speech that the money provides
becomes too overwhelming, it's not fair.
And my answer is it's still speech.
Those arguments really used to be made about newspapers,
about the enormity of their power,
about the wealth of the people that owned them,
about the impact on society of too few people
having too much power.
You know, the answer is taxation.
You want to take their money away,
deal with it in taxes, don't take the speech away.
To me, the notion that many of my friends have had
that corporations ought to have
less in the way of rights than individuals
is counter to all I've done
representing all my media clients,
most of which are corporations.
-It's commonplace
in American society and American law
for people who took one view of some legal principle
to all of a sudden take the opposite view of it,
because one side or the other would be helped by it.
And Floyd doesn't do that.
I mean, Citizens United is the most loathed case,
and not only by liberals,
and some of Floyd's other work
on behalf of businesses asserting First Amendment rights
also not super popular.
So where the Floyd Abrams I got to know in the 1980s was,
you know, a superstar lawyer on the side of good,
is now viewed by a lot of people
by dint of his consistency as,
you know, a problematic figure.
-For better or worse, I am very comfortable
with the position that I took in it.
-Been a while. -I know -- it's been a while.
-It's been interesting to watch my dad go
from a First Amendment kind of hero
to people get angry at him now for taking positions
which are not dissimilar to any positions he'd previously taken.
-Not long after Citizens United came down,
I appeared in front of the board
of the American Civil Liberties Union,
which was basically on the same side as we were
but was being overwhelmed
by internal criticism by their members.
It was a meeting to discuss whether they should criticize
the Supreme Court decision in Citizens United.
And I remember telling them, you know,
the Supreme Court will never forget you.
You'll be the only litigant who urged them to do something
and then denounced them because they did it.
I said you were in this case.
I mean, are you seriously thinking of denouncing them?
For validating the position that you were --
We're talking weeks ago, months ago,
and they didn't do it.
But that was fun.
Look, it's, you know, it's fun to be in the battle
and, you know, without overdoing this,
but fun to be in the battle
if you think, especially as I do,
that the battle is on behalf of the First Amendment.
[ Indistinct shouting ]
-When I was hired at the ACLU,
my predecessor,
she sort of wished me the best and said,
"If you ever figure out campaign finance [laughs]
you'll do better than all of us."
I'm deeply disturbed by the logic of Citizens United,
but I'm also humble about the fact
that I don't have a great answer
for how to really square that circle.
-Faith in the power of the kind of pure principles
that the Constitution contains is incredibly inspiring.
And so I wouldn't want a world
where you don't have kind of absolutist
and purist views of things like the First Amendment,
which I think kind of stripped to its essence
is an extraordinarily powerful idea.
But to me, I think I just can't avoid the context.
And I actually think that it's important
that all of us attend to it.
-I certainly have a very positive view
of Floyd the person
and a generally positive view of,
you know, his work.
But my feelings [Chuckling] about
the sort of expansionist understanding
or an expansive understanding of the First Amendment
have changed.
And since I associate Floyd with an effort
to really push the boundaries of the First Amendment,
my views of Floyd have become more -- more complicated.
♪♪
-My wife bought for me an original copy
of the French newspaper
in which Emile Zola wrote his classic
"J'accuse...!"--
one of the best known defenses of free speech in our history.
♪♪
-Yeah, sure.
I mean, Efrat has Alzheimer's, and so...
She's glad to see me, recognizes me, talk a bit.
And the children, too.
-The one voice that you're not going to have, obviously,
is my mother.
My mother is not all there at this point.
And yet, you know, she'll occasionally
make a joke or something
and he still touches her face the way that he always has.
-She still has the same personality and will tease him.
And so I think --
I think that's at least nice, but...
Yeah.
But, yeah, no, it's hard, of course.
-The saving grace is that it's not hard for her.
Not only no pain, but no pain at thinking back
at what you can't do anymore.
There are days when I don't go in to her room
because I really do have to get back to work.
Sounds silly, even hearing myself say it.
But no recriminations. I mean, just glad to see me.
[ Door opens ]
♪♪
-Clearview AI is
a groundbreaking facial
recognition technology
that scrapes
billions of images from social media
and all across the Internet.
-When I got to theTimes,
I had started looking at face recognition.
People had put photos out there of themselves,
not realizing that one day it was going to help fuel
just a real advance in facial recognition algorithms.
An activist reached out to me and said,
"There's this one company that I've never heard of before
that's doing something pretty wild.
They say that they've scraped all the social media sites
and that they're using those photos to help identify anyone."
That was Clearview AI.
And Clearview had been selling the tool
to law enforcement for a while --
for at least six months --
and no one knew about it.
-I mean, I've got to say, it's slightly unnerving
seeing someone able to scroll through
so many images of my face.
-The first TV interview I did was on CBS and I blurted out,
"We have the First Amendment right to do this."
-You believe you have a First Amendment right...
-Completely. -...to access what's
on the platform? -Yes.
The way we have built our system is to only take
publicly available information and index it that way.
My instinct was like, it's public information.
People have that expectation.
So when things developed along, I was always trying
to find a lawyer who could encapsulate that idea.
Floyd ended up being the one
who really understood that at his core.
-We're talking about a direct clash
between privacy concepts and free speech concepts.
-It's actually allowed us to reframe the debate a lot.
Originally, a lot of it was a privacy case,
but more and more people are talking about it
as a First Amendment case.
-We first learned about Clearview as a company
I think at the same time that everyone in the public
basically did in Kashmir Hill's article,
which I believe was titled something like
"This Company May Destroy Privacy As We Know It."
We shared that reaction.
-Civil liberties advocates have sued Clearview,
arguing that the app,
and in particular the extraction of biometric data
from these photographs,
violates an Illinois state law.
-This law in Illinois says that you have to get
someone's permission to use their biometrics.
Biometrics are measurements of the body,
like your fingerprint or the geometry of someone's face.
-I also think there are even broader questions at stake here,
which really are about whether or not
we can have privacy and free speech, too.
And I think we have to live in a society
where the answer to that is yes.
-Many people will be reluctant
to go to political demonstrations,
to participate in political rallies
if they think that the police can and will
scan the faces of everybody who's there,
identify who they are.
That kind of surveillance will have a real chilling effect.
Individual privacy is necessary to protect all of the freedoms
we wanted the First Amendment to protect.
But Clearview is arguing, with the help of sophisticated
First Amendment lawyers like Floyd,
that this activity is protected by the First Amendment.
-The Supreme Court had said
that the collection and dissemination of information
is protected by the First Amendment.
And I think that's -- that's correct.
-There is a case where
somebody tried to sue Google.
They said,
"People searched Google,
and up came this negative story about me,
and I'm suing you
because I want you to take it off of the Internet,
it's not really fair."
They lost that case, right.
Clearview is a search engine for faces.
They are using this technology to allow people
to more efficiently identify, in this case,
criminals or even children who've been abducted.
Preventing that efficiency in that speech
would cause real harm.
-Impairing, if not destroying, the ability
to compare one photograph with three billion others
is a genuine threat to First Amendment interests
and to the even broader notion
that truthful information is essentially sacrosanct.
It is too easy to sort of yield
to the siren call of privacy
and to start limiting the dissemination of information,
which by its nature is public.
-The technology often seems to be setting the pace
rather than the law.
I always think about the TSA body scanners
that were introduced after September 11th
to try to make air travel safer.
When they first introduced these scanners,
privacy activists were outraged, they hated them,
they started all this litigation to say
this is an unconstitutional search.
[ Indistinct conversations ]
It took so long for the litigation
to make its way through the courts
that by the time they did,
the judges basically said this is not an unreasonable search.
People go through this every day when they go to the airport.
A new technology comes, it's shocking to us
and then we get used to it.
And I kind of expect facial recognition to be that way.
I think in 5 or 10 years we're all going to have
a Clearview AI-type app on our phone.
-The pace at which technology is improving
requires us as a people to,
you know, keep looking carefully at striking a balance --
a proper, a reasonable balance.
♪♪
Think back to when not many years ago
social media started to blossom.
First Amendment types couldn't have imagined
such a great thing.
What could be better than having speech,
which doesn't cost anything
and an ability for anyone to participate in it?
And here we are.
Careful what you wish for
and careful even what you imagine.
♪♪
Racist speech...
Russian propaganda...
false speech about medicines.
One of the dangers, one of the realities of free speech
is that everything can go overboard.
♪♪
A free speech regime has no answer for that
except more speech.
You know, we have to cross our fingers
and hope that the truth will out.
♪♪
I think that when one has to make that choice...
that the answer ought to be to hold our breath
and stay with the First Amendment.
History of mankind.
♪♪
Governments come to power around the world,
then misuse the power.
[ Indistinct shouting ]
[ Woman screams ]
♪♪
[ Bell rings ]
♪♪
And one of the first things they do is to go after
whatever the press is at that moment.
-Police last week
raided the offices of the 26-year-old tabloid paper.
[ Camera shutter clicking ]
-Russia blocked its last independent TV channel
and the network shut down.
-You are the enemy of the people.
Go ahead. -Mr. President.
-I mean, sometimes it takes a long time
for 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.
♪♪
-I don't always see the world in the same way that he does.
-...avoid is any kind of system of law...
-But 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.
-I think we in the press -- and I like to call it the press,
not the media, because media sounds like paint.
But people who do journalism for a living have been very lucky
to have Floyd Abrams on our side for generations.
-Floyd is a good litigator,
but by not a little happenstance,
he turns out to be the leading First Amendment press lawyer
in American history.
-I'm protecting the...
-His legacy will be as a fierce supporter of our Constitution
and our constitutional rights under the First Amendment,
which is just about the most important thing
in our Constitution.
-To this day, I'll be researching issues
and find cases that he was the lawyer on.
I mean, it happens all the time.
You know, my clerks will send me,
you know, 10 different cases, like my dad argued two of those.
Like, I can see just what an effect he's had on the law.
♪♪
-Not yet.
-You know, when we turn off the camera, who knows what I'll say?
How about a confession? -A confession?
What are you going to confess about?
-That I was wrong all the time. [ Laughter ]
Really bad answer, huh?
[ Laughter ]
Even in jest I won't give you a clip.
[ Laughs ]
-[ Indistinct ] -Oh, I thought
you said "fire" as in...
[ Laughter ]
A very subdued fire.
I had no better answer.
[ Laughs ]
I could have said yes or no,
I guess, but then -- then there'd be more questions.
[ Beeps ]
-Alright. -Okay.
See you tomorrow. -See you tomorrow.
-You're going to leave the cameras or...?
-Nope, we're not going to leave the cameras.
-I thought I'd sell them.
[ Laughter ]