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Floyd Abrams

Hoan Ton-That interviews Floyd Abrams, Of Counsel, Cahill Gordon


Hoan Ton-That and Floyd Abrams

When you first heard of the Clearview AI case, why was it a clear First Amendment issue for you, despite not knowing much about facial recognition technology?

The creation and dissemination of information is protected by the First Amendment. Requiring consent prior to making public already public information is inconsistent with the First Amendment.

Besides Clearview AI’s case, what are some other examples of First Amendment cases that can be counterintuitive for most people to understand?

Many forms of speech that are protected by the First Amendment seem off-putting to many in the public. By way of example, the First Amendment protects much racist speech, protects false statements about public officials and other prominent people unless made with knowledge of falsity or serious doubts as to truth and protects corporations in spending large amounts of money aimed at persuading people who to vote for.

What’s one example of where the First Amendment applies where people don’t think it applies, and vice versa?

Many people don’t think it applies (or that it should apply) with respect to the spending of vast amounts of money in elections. Many others may think it does apply when people say genuinely threatening things to each other.

You once said that when you were speaking at a top university, you asked the students “Should Facebook or Twitter moderate the content on their site in principle with the First Amendment”, only around 10% of people raised their hands. Are you concerned about the younger generation not appreciating the “soul of the first amendment”?

It’s true that it does not appear that the younger generations fully appreciate the benefits of the First Amendment. But I agree with the audience shying away from regulations requiring social media to carry everything that people wish to say, however offensive or personally offensive. Content modification policies are themselves protected by the First Amendment and I think that it is entirely appropriate for Facebook and the like to decide that it will not carry certain speech and speakers.

In your book, Friend of the Court (it’s a must read), you describe how the libel laws in Britain were strong where the court system there would be handing out large fines. Plaintiffs would sue. This led to journalists publishing more stories in US newspapers because they had First Amendment protection. Do you think the First Amendment helped US companies have an advantage in the global media landscape?

I do. It’s a public good to publish articles even when governments take issue with what is said and I think US companies benefit, as they should, in doing so.

In an ideal world, what is one thing you would change about the First Amendment?