Senator Daniel Patrick Moynihan described him as "the most significant First Amendment lawyer of our age," and President Barry Mills called him the "rock star of First Amendment rights." Floyd Abrams, a lawyer and Yale Law School professor who has argued several high profile cases before the Supreme Court, is no stranger to high praise. In his lecture on Tuesday night, Abrams challenged his audience to broaden their perspective and consider the role of journalists in protecting First Amendment rights.
Abrams' lecture, "WikiLeaks and the First Amendment," also served to introduce the Corydon Dunham Open Forum Fund. According to the Bowdoin website, the fund is "designed to underscore the importance of freedom of speech in American society, and to educate Bowdoin students and the greater community about the necessity of these protections."
Abrams is methodical, slow to speak and careful in choosing his words. He began his lecture by surveying his landmark cases, most notably the Pentagon Papers, before segueing into a discussion of WikiLeaks and its implications for American journalists.
Does it matter, Abrams asked, if WikiLeaks is a journalistic organization? From his point of view, WikiLeaks "is not an organization any journalist would recognize." And if so, Abrams asked, is it worth making distinctions between journalists and other organizations that claim to be journalistic in nature?
The answer, it would appear, is yes. "There is reason to be proud to be a journalist," Abrams told the sold-out crowd in Pickard Theater, referring to his involvement in the Pentagon Papers case 40 years ago.
"It was a very hard decision about whether to publish the material, all classified and top secret, the highest level of secrecy, at a time when the government was saying it would significantly impair the security of the United States and its people," said Abrams. "It was not an easy call at all for the Times to decide to risk an Espionage Act prosecution."
Abrams, who has represented The New York Times in the Pentagon Papers case and challenged McCain-Feingold campaign finance reform in the controversial Citizens United case, was not shy in condemning the restriction of free speech and the freedom of the press.
"I think speech codes are counterproductive," said Abrams, referring to free speech on college campuses.
However, he also broadly criticized WikiLeaks for releasing classified information that have been "in my view, at best, problematic." WikiLeaks, for instance, released the names of people who had been marked under special protection by the federal government, as well as the names of low-level informants who are at risk for being targets of the Taliban.
"This is not to say that the only results or potential results of WikiLeaks actions were harmful," said Abrams, citing WikiLeaks' disclosure of the conditions at Guantanamo Bay. "I believe there are simply too many examples of WikiLeaks having released material of significant potential harm for only modest potential benefits."
During an interview with the Orient, Abrams explained that "WikiLeaks would not be an attractive party before the Supreme Court."
"Some members of the court are going to have to take a deep breath and say to themselves, 'Not withstanding how irritated I am at them sometimes, how reckless I think they've been sometimes, they still deserve First Amendment protection.'"
It is this sense of perspective that Abrams champions. He argued that the subject of First Amendment rights is far too often associated with a particular political party, and is not simply viewed as a constitutional issue.
"It's interesting to me that people with very different political views and social views rarely agreed with both First Amendment positions that I took," Abrams said, referring to the Pentagon Papers and Citizens United cases. "I think that's a sad reflection of the difficulty people have of treating First Amendment issues as something other than ideologically- charged political ones."
Abrams is also a pragmatist. During his interview, Abrams acknowledged the limitations of defending the First Amendment, explaining that he draws on a wide range of experiences and perspectives when arguing before the Supreme Court.
"Waving the First Amendment flag doesn't necessarily carry the day," said Abrams. In his speech, he referred to the "new modes of communication," such as blogs, that allow for the dissemination of contentious material at a much more rapid rate than in the mid-20th century.
Yet as Abrams surveyed the recent First Amendment decisions of the Supreme Court, particularly its decision to uphold Westboro Baptist Church's right to protest at funerals, he concluded that "we have a Supreme Court right now that is generally quite protective of the First Amendment."
"There are areas in which I have concerns," said Abrams, "and they include limitations on or sanctions for certain reporting about national defense and intelligence issues. But as a general proposition, I think we have a court that is on a near across-the-board basis committed to a very broad interpretation of the First Amendment."