Hoan Ton-That interviews Floyd Abrams, Of Counsel, Cahill Gordon
By Hoan Ton-That INTERVIEWS
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?
I would add more protection for freedom of conscience, something Madison wanted to include in the First Amendment but didn’t wind up there.
On balance, throughout your career, you have seen many new mediums arise: TV, cable news, and now the internet. Do you think the internet has increased freedom of speech overall since its inception? Also, how have these mediums changed partisanship?
I think the Internet has increased the amount of speech we have but not its quality.
What are some important cases regarding the First Amendment and how it applies to photographs done in public?
There are lots of cases about photographs but from my perspective the rather unheralded Ness decision less than two months ago of the Court of Appeals for the Eighth Circuit is the most telling. A statute passed by a California community barred taking pictures of children in a public park without the consent of the individuals taking care of the children. The Court of Appeals held the law unconstitutional, saying basically that public parks are public and that such a limitation violated the First Amendment. As simple as that and in my view all the more important because of that.
You mentioned that people were worried about “Kodak Fiends” when the advent of modern photography happened. How has the perception of privacy changed regarding public spaces as the proliferation of cameras, social media and the internet has accelerated, while the laws have remained the same?
A really good question. Too often claims of privacy have been made at the very time the public has embraced one after another new form of technology which by their very nature makes more information public. I think we should come to grips with the reality that what is said on the Internet is inherently public and that if one wants privacy he or she should act that way.
Is there a mentor from your past that stands out? And if so, what is one of the best pieces of advice she or he gave you?
My professor, Robert Cushman, at Cornell who taught me about the First Amendment and urged me to go to Yale Law School. And my professor, Alexander Bickel, at that law school, who required students to avoid cliches and sound bites and to focus intently and narrowly on the topics we were discussing.
It’s been written that after you completed your undergraduate degree, you were considering going to graduate school to pursue a Ph.D. in American History. Do you ever wonder what your life would have been like if you had chosen that path instead of law school?
Yes I have and while it’s always difficult to imagine a different path in life than the one one has chosen or slipped into I consider myself fortunate indeed that I happened upon the path I did follow.
You have two children that both followed in your footsteps and pursued careers in the legal field, one as a legal analyst and correspondent and the other as a judge. What advice did you give them before they went off to law school? And how did each of them do in Constitutional Law?
No particular advice but by the time they entered law school they had heard so much about law and lawyers from me that I don’t think I had anything left to say.
And speaking of law school, I just watched Legally Blonde for the first time, have you seen it? If so, what’s the main lesson from the movie?
That if you look like Reese Witherspoon and work pretty hard the world is yours.
Clearview AI Advisory Board
Of Counsel, Cahill Gordon
Long regarded as the nation’s preeminent attorney on the issue of free speech, Floyd Abrams’ legal defense of the media is unparalleled both in its breadth and variety. He was co-counsel for The New York Times in the landmark Pentagon Papers case and has represented ABC, CBS, NBC, Business Week, Time, The Nation, Reader's Digest, the Providence Journal, Random House, Alfred A. Knopf and many other media in trials, appeals and amicus efforts.