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?
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.
I know! As a matter of principle, the Citizens United case was rightfully decided. A lot of people have no idea it was rooted in the 1st Amendment. We can argue about the impact of the case, but saying it can be a crime to put a movie denouncing Hillary Clinton on TV when she was the leading Democratic candidate is inconceivable and utterly inconsistent with the 1st Amendment.
Has Citizens United made you a hero on the right?
Mini. It does get me a few fans I'm a bit uncomfortable with.
Is technology changing our sense of the 1st Amendment?
The cliche —– like a lot of cliches, not totally wrong — is that everyone is a publisher [now]. That changes the dynamics of 1st Amendment protections. It's inconceivable that the law is going to protect everyone on the Internet who promises [a source] confidentiality. We will deal with that by looking at the function of the speech at issue, if someone on the Internet is performing what has always been a journalistic function, [applying] the 1st Amendment [with] some reconciliation with a new form of communication.
I have no doubt if Julian Assange had been the recipient of the Pentagon Papers, he would have lost that case. It was fortunate for the protection of freedom that the New York Times and other papers were the litigants.
Would you defend Julian Assange or Edward Snowden, the NSA leaker?
I would tell Assange: You really ought to get someone who thinks better of you. [As for Snowden:] I'm not joking when I say he really needs a criminal lawyer. He has all but confessed to one serious crime: misusing classified information.
The president has proposed a federal shield law for journalists.
I'm in favor of it. It's not clear what the impact would have been in these cases involving the AP and [Fox's] James Rosen, because the draft legislation leans over backward in the direction of protecting national security information. But at least it requires the government to go before a judge.
In your book you write about presidents coveting more power. Didn't the Obama administration take a huge preemptive step in that direction?
That's true. We can hope that having been burned to some degree, the administration will have learned a lesson.
Why do Americans have such an ambivalent relationship with free speech?
Because the 1st Amendment is counterintuitive. It's tough to accept that we should let people say things that are dangerous or harmful.
Think of the terrible anti-gay, anti-American military demonstrations [by the Westboro Baptist Church] at funerals of American soldiers, that were held protected under the 1st Amendment. The films of animals being tortured and killed, protected by the 1st Amendment. And both of these by an 8-1 vote. If you gave the public those cases, [they'd say,] like the woman on the jury in "My Cousin Vinny": "Fry 'em!"
When you read the 1st Amendment for the first time, was it an epiphany?
I came to the 1st Amendment in a tortured way, in college. I wrote my senior thesis supporting the English system, quite a free country but without a 1st Amendment. I thought, if there's a criminal trial going on, why should the press be able to publish a confession unless it was introduced in court? Why should the press be able to publish a prior criminal record of a defendant when it could interfere with a fair trial? In England, journalists go to jail when they publish that.
What changed my mind is that I started to meet journalists. I came to a law firm that represented NBC during the Nixon administration; a good deal of what journalists were doing seemed to me admirable, and I engaged in a rethinking. The American system answers the problems I mentioned without imposing limits on the press. But it took a while for me to get there.
On the 200th anniversary of the Bill of Rights, people read from the Constitution in New York City. They let me read the 1st Amendment, and people applauded. Then the next person read the 2nd Amendment and was booed. Only a New York audience!
Were you on the Nixon enemies list?
No, I didn't make it. I was sort of young. I always felt left out!
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This interview was edited and excerpted from a taped transcript. An archive of Morrison's interviews can be found at latimes.com/pattasks.Copyright © 2015, Los Angeles Times