Where there's smoke arising from a free-speech matter, you're likely to find the fiery attorney Floyd Abrams. He's blazed a trail for freedom of the press from the Pentagon Papers case to protecting reporters' sources. He's just as incendiary when he's fighting forced warning labels on cigarettes and championing the Citizens United court decision. Abrams' memoir, "Friend of the Court," arrives as news media and government are again at loggerheads over reporters' phone records and revelations-by-leak of widespread domestic surveillance — all burning issues for him.
What do you think about the NSA leaks?
It's good to have a public debate. There's no arguing with the proposition that, as the president stated, you can't have 100% security and 100% privacy. But the administration is not focusing sufficiently on the loss of personal privacy imposed by the NSA activity, which we now know is major.
Are the NSA revelations bigger than the Pentagon Papers, as Daniel Ellsberg has said?
In some ways. The papers were a historical study [that] showed government misconduct that the NSA [reporting] does not. The impact on American society of the NSA surveillance may well be greater than the impact of the Pentagon Papers study.
In the scandal over the seizing of phone records of Associated Press and Fox News reporters, the Obama administration is being compared to the Nixon administration.
I don't think President Obama is like President Nixon. He doesn't have an enemies list. However strongly I feel the policy has gone astray, [it is] not aimed at people who disagree [with Obama].
That said, it's troubling to the point of being dangerous, particularly about Fox. What the government said in its filing was that simply asking questions of someone in the government who had access to classified material can be deemed a crime under the espionage law. [But the crime of espionage] requires proof that the accused engaged in this activity for the purpose of harming the U. S. or helping a foreign country. There's nothing which would suggest that was true, or that the government would even argue that.
Is that a post-9/11 provision?
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No, that's a 1918 provision. The Espionage Act is one of those relics. We're stuck with the same overbroad language written at the conclusion of World War I. The 1918 law ought to be changed. My only concern is whether Congress would make it worse.
The president has seemed shocked that anybody would think his administration was criminalizing reporting.
But that's what they were doing. There are lots of things we don't do even though they might help accomplish an end; that's especially true of the government.
Do you think this is an aberration or something more symptomatic?
The administration has become so overzealous in leak investigations that it seems to have lost sight of the need for vigorous journalism. At the same time we try to protect national secrets of real moment. Sixty years ago, as Secretary of State Dean Acheson was about to leave office, he wrote to New York Times columnist James Reston and said: "Your job is to pry. Mine is to keep secrets."
That doesn't mean the press ought to publish everything; the AP played it by the book. They had information which dealt with national security. They went to the government to ask if it would do harm if they published it. Only when the government was about to release the information did the AP [publish] it. That's the way the system ought to work. If the press learns some things that could do some harm, we hope and trust they don't reveal those — but we don't allow the government to make all the decisions.
The Washington Post published just four, out of 41, NSA PowerPoint slides. In the case of the Pentagon Papers, the press was also a discerning intermediary. Compare that to WikiLeaks.
I have been very critical of WikiLeaks. I don't believe WikiLeaks behaves the same way the New York Times did or that Daniel Ellsberg did — he withheld three volumes from the New York Times because they contained information about negotiations to try to end the war; [releasing that] would [have] hurt the cause of resolving the war. That's not the way Julian Assange and WikiLeaks behave. They release so much information that could do harm to national security that I think they shouldn't be viewed as heroic but as, often, reckless. That said, we can't pick and choose among speakers who gets 1st Amendment protection.
The constitutional scholar Ronald Dworkin argued that you can't turn the 1st Amendment into a pointless mantra that subverts rather than sustains democracy.
I disagree significantly with his view. It would constantly require an [official] assessment of whether certain speech benefits or does not benefit "democracy." I don't want government officials deciding what furthers democracy. What furthers democracy is freedom of speech. When you're talking about political speech, virtually anything goes and should be legally protected — that's at the core of the disagreement over Citizens United. The point is we take the benefits and sometimes the harms of living in a free society.
You argued for the plaintiffs in Citizens United. A lot of people put an asterisk by your name because of that.