YaleNews | Legal scholar speaks about why free speech matters – Yale News

In Europe, Donald Trump could have been arrested for some of the comments he made about Muslims and Mexicans while campaigning for president, legal scholar Floyd Abrams LAW 59 pointed out during a campus visit on April 5.

But thats not the case in America, which has been more dedicated to the protection of free speech than anywhere else in the world, said Abrams, and hes grateful that it is.

Considered one of the nations top constitutional lawyers and staunchest defenders of the First Amendment, Abrams took part in a conversation with Adam Liptak LAW 88, the Supreme Court correspondent for The New York Times. The public event took place in a Yale Law School classroom, with lawyers and law students joining remotely from the New York and Washington, D.C. offices of the firm Levine Sullivan Koch & Schulz. Abrams new book, The Soul of the First Amendment, was just published by Yale University Press.

Abrams told his audience that the starting point for his book and the core principle at heart in his own legal work is his belief that the First Amendment is meant to be a protection against government over-control and censorship, even though it hasnt always been interpreted in that way. As he notes in his book, the First Amendment is a mere 45 words: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Even in Canada, Abrams said, a religious zealot who passed out pamphlets condemning homosexuals and homosexuality, for example, could be convicted of a hate crime. Asked by Liptak why Americas approach to freedom of speech is better, Abrams answered: I think its better for all of us because we have shown through our history tendencies to limit speech and move into highly anti-free expression modes. Weve made enormous progress and moved in the right direction by sort of gulping and saying, Were going to protect this sort of speech even though we understand that its going to inflict pain, and inflict pain on people already suffering pain from their stigmatization in American society.

Americas constitutional commitment to free expression even of the sort that denigrates groups of people, as Trump did is bred most of all from the fear that if we start banning politicians from saying things, or the rest of us from saying things even if theyre deeply offensive and antisocial the effect as a whole would be a significant deprivation of freedom of a sort that all of us would recognize.

The legal scholar defended his own decision to represent (on behalf of Senator Mitch McConnell) the conservative nonprofit organization Citizens United in the controversial 2010 Supreme Court case Citizens United v. Federal Election Commission. That decision reflected his devotion to the cause of free speech, regardless of politics, he said. In a broadly sweeping decision, a majority of the justices (5 to 4) voted that freedom of speech prohibited the government from restricting a corporations independent political expenditures.

Commercial speech, I think, is an interesting area in which there will be a lot of development, sooner rather than later, predicted Abrams.

He called the Supreme Court under Chief Justice John Roberts a spectacularly protective one for First Amendment rights, but warned that college campuses have most recently been the place where First Amendment values have been the most challenged in American life. He cited the shouting-down of campus speakers because of their views as one campus danger, and called Fordham University administrators decision to forbid conservative commentator Ann Coulter from speaking there unless she was part of a panel an absolute disgrace.

In the older days, university administrations objected to liberal and left-wing speakers appearing, said Abrams. Today, he added, college professors sometimes warn students in advance that class content will include something that may offend or upset them.

Its a difficult area because it is important for students to feel some level of comfort, he continued. On the other side, education isnt always comfortable, and it shouldnt always be comfortable. The non-negotiable part of that is that there should be absolute freedom of ideas and presentations of ideas, no matter how offensive they may seem.

During a question-and-answer session, Abrams who represented The New York Times in the Pentagon Papers case said that despite its protectiveness of free speech, the current Supreme Court isnt likely to be as protective of the press, particularly in cases involving leaked classified information.

Journalists are at very great risk in front of the Roberts court, Abrams said. I think thats one of the softest spots in term of potential for great harm [to press freedom].

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YaleNews | Legal scholar speaks about why free speech matters - Yale News