34 The Nation. October 9, 2017F
loyd 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 Pen-
tagon 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 Amend-
ment 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, which opened the flood-
gates 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 Abrams’s chapters on them, taken to-gether, form a larger argument about free
speech: a kind of First Amendment fundamen-
talism that only cursorily acknowledges the
countervailing concerns—indeed, at times,
real harms—of racial intimidation or digital
attacks on privacy and reputation, and that is
now under strain from a number of progres-
sive activists appalled at the ACLU’s defense
of the neo-Nazis who marched in Charlot-
tesville. But Abrams’s way of engaging the
subject 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 inflict, as I have yet to
encounter a regulatory scheme that wouldn’t
backfire against political, racial, and religiousby GARA LAMARCHE
IN FREE-SPEECH TERRITORY
The use and abuse of the First Amendment
The Soul of the First Amendment
Why Freedom of Speech Matters
By Floyd Abrams
Yale University Press. 176 pp. $26Gara LaMarche is president of the Democracy
Alliance.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—as well
as by the fear that Abrams, despite an honor-
able and accomplished career, may be part of
the problem.A
brams 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 per-
haps for this reason, in an odd echo
of the Trump administration, that Abrams
saves his greatest fire 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.
Most of Abrams’s arguments with Euro-
pean free-speech practice and with the left’s
greater concern about the effects of hate
speech on communities of color and women
rely on little evidence and few empirical stud-
ies; they are primarily anecdotal in nature. I
understand that principle lies at the core of
the debates, and it should. But it’s worth ask-
ing, and studying, what the relationship is, if
any, between the way a society regulates some
aspects of speech—slander and libel; racist
and sexist utterances and writings; privacy;
spending on election campaigns—and how
robust its political debate actually is. These
are questions not just of principle, but of
social science and empirical analysis. I see no
signs that political discourse in, say, France
and the Netherlands is more crabbed and
tame, as Abrams might have us believe, just
because it is in some ways at least slightly
more fettered than in the United States.
Some argue that free speech serves as aCapitol Hill, 2016.AP / BILL CLARK