The First First Amendment Lawyer

Floyd Abrams on the Pentagon Papers, Judith Miller and why clerkships are great (it’s not why you think)

Published in 2007 New York Metro Super Lawyers — September 2007

It’s not trendy to say you like the media, but Floyd Abrams doesn’t care. 
 
“Journalists do have awfully thin skins for people who can dish it out,” Abrams says. “But they’re smart, fun, exciting.”
 
That’s one reason why the 71-year-old partner at Cahill Gordon & Reindel teaches at the Columbia Graduate School of Journalism rather than, say, any law school he desires.
 
“I like law students,” he says. “I hire law students. But if I had to pick a social class to spend time with, I’d rather hang around with journalists.”
 
Journalists can be fond of Abrams too. For more than 35 years he has been their patron saint. Described as being “to First Amendment rights what Clarence Darrow was to the rights of the accused,” he has represented media clients, including The New York Times and the major television networks, in cases involving the Pentagon Papers in 1971 to Judith Miller last year. He also teaches, lectures and writes books about the First Amendment. 
 
But Floyd Abrams never set out to be a First Amendment lawyer. At first he didn’t even want to be a lawyer.
 
 
Abrams was born in the Bronx and grew up in Queens in a middle-class family whose business was manufacturing and importing artificial flowers. Dubbed “The Little Yankee” in his junior high yearbook, he eventually gave up stickball for the debate team. At 12 he attended his first political rally—a torchlight parade for Harry Truman—and at 16 he went off to Cornell, where he became president of the debating society. His award-winning senior thesis called for restrictions on pretrial publicity. “Quite antithetical to First Amendment norms,” Abrams says, enjoying the irony.
 
He loved Yale Law School but thought he would become a political science professor. “Everything I’d read about the practice of law, it seemed awful,” he says. He worked for eight months at Princeton with Alpheus Mason, the Supreme Court historian, then decided to give law a chance with a two-year federal clerkship in Delaware. “One of the real things clerkships give to the young lawyers who do them,” he says, “is a sense of confidence that they would probably do better than most of the lawyers they see.”
 
Afterwards Abrams interviewed with only one firm. Today Cahill Gordon & Reindel is widely respected for its corporate and financial work, but back then it was known for its tough litigators. “Up-from-the-gutter Irishmen,” Abrams remembers fondly. He started in 1963 as a third-year associate at $10,000 and threw himself into a range of cases. He remembers the legendary John Cahill confronting clients who expected him to win a weak case. “Look,” Cahill told them in his gruff brogue, “I’m ready to get up there with an onion under each eye and just cry, but isn’t there something you can tell me that I can persuade someone with?”
 
NBC was one of the firm’s clients, and, like other media organizations in the late 1960s, its news division was continually fighting government subpoenas for confidential sources. Abrams was assigned to help. “It wasn’t until I got out of law school, came here and started meeting some journalists in the course of the NBC work that I really changed my views about the need to protect the press in order to inform the public,” Abrams says. 
 
As cases mounted, news organizations helped each other build legal defenses. One group of cases, later consolidated as Branzburg v. Hayes, focused on a reporter’s privilege to protect confidential sources in grand jury testimony. When the media lawyers went looking for an expert consultant to help build their case, Abrams suggested bringing in Alexander Bickel, his constitutional law professor from Yale.
 
Bickel, brilliant and conservative, was wary. “You know I am not a First Amendment voluptuary,” he told Abrams. Abrams insisted the media companies wanted a distinguished constitutional scholar, and that Bickel’s belief in judicial restraint could have special appeal to conservatives. So in late spring of 1971 Bickel came to New York. Abrams showed him the NBC newsroom and took him to lunch with a number of media executives, including several from The New York Times, where they talked about the Branzburg case. They also discussed the Pentagon Papers, the leaked documents showing how the government misled the public about the conduct of the Vietnam War, which the Times began publishing the day before. Its editors were worried that President Nixon’s administration would try to stop further publication.
 
Bickel and Abrams talked expansively, as lawyers often do when they are not involved in a case, and dismissed their fears. “The government would never prevail in court on that,” they assured the editors. “So it’s unlikely they’ll even try.” 
 
That night Abrams was awakened by a phone call. It was the Times. Attorney General John Mitchell had just demanded the paper stop publishing the Pentagon Papers, and the Times’ attorneys, at now-defunct Lord Day & Lord, had refused the case, saying that publishing the Pentagon Papers would violate the espionage law, and was therefore an unpatriotic act. So at 1:00 a.m. Abrams picked up Bickel, they drove to Cahill, flipped on the lights of the library, and went to work on New York Times v. U.S.
 
“Thirteen days later, the Supreme Court decided the case in our favor, and my life changed,” Abrams says. 
 
Only 34, he was suddenly the First Amendment lawyer. “The work didn’t exist before,” Abrams says. “There were lawyers who represented pornographic stuff, and lawyers who did libel work, but no one had the appellation of ‘First Amendment lawyer.’” 
 
More press cases followed. In 1972, the Supreme Court in Branzburg rejected Abrams and Bickel’s arguments, 5-4, holding that, under some circumstances, reporters can be compelled to disclose confidential information to grand juries. (Abrams believes Branzburg would have been decided in his favor a year earlier, before Justice Lewis Powell replaced Hugo Black.) In 1976, Abrams argued Nebraska Press Association v. Stuart before the high court, winning a landmark decision that limited court prohibitions on pretrial publicity. His argument was, of course, the exact opposite of his Cornell senior thesis.
 
Abrams works behind a large curved desk 19 stories above Wall Street. A Louisville Slugger leans in a corner, beneath a framed, yellowing 1898 Paris newspaper proclaiming: “J’Accuse …!” Abrams confirms it’s an original of the famous Emile Zola essay that exposed anti-Semitism in the French military and showed the modern world the power of a free press. The clipping was a gift from his wife a few years ago. 
 
 
Abrams is unapologetic and a near-absolutist on the First Amendment. He says there is a reason the press is the only private business granted protection by the Constitution. Reminded of the late Kurt Vonnegut’s quote, “The First Amendment reads more like a dream than a law, and no other nation, so far as I know, has been crazy enough to include such a dream among its fundamental legal documents,” he smiles. 
 
“I don’t talk a lot about democratic theory,” he says. “I do talk a lot about why we have a First Amendment, and how we got a First Amendment, and what I think the First Amendment ought to mean.” He recalls that a synagogue crowd was hostile when he supported the rights of neo-Nazis who applied for permits to march and demonstrate in Skokie, a predominantly Jewish suburb of Chicago, in 1977 and 1978. “I think I made headway in persuading them that people who are in a minority ought to be particularly protective of free speech because they and other minorities are the ones who are first damaged by the loss of it,” Abrams says.
 
He works other cases—copyright, libel, employment law and others—but he’s still in the middle of most major First Amendment issues. Two days earlier, he traveled to the U.S. Supreme Court with a brief defending a private high school’s free-speech right to invite public grade school students to try out for its football team. Abrams has argued before the high court 15 times and assisted on innumerable cases. He groans that it’s still nerve-wracking.
 
The Judith Miller case was one of his most difficult. The former Times reporter went to jail for 85 days in 2005 for refusing to answer grand jury questions about the source of a leak identifying Valerie Plame as a CIA agent. “I was especially disappointed that a lot of people who in other circumstances would have supported our position in the Judy Miller case abandoned it because they were angry at her for her coverage of the events leading up to the war in Iraq,” Abrams says. “From my perspective, to impose a sort of political test on the exercise and then the defense of First Amendment rights is extremely dangerous.” He points out that most states have some sort of shield law protecting confidential sources, and hopes that the Miller case will lead to a federal shield law. 
 
Abrams sees a number of “real and growing” threats to the First Amendment in the 21st century. Fewer people read newspapers, he points out, and declining readership creates economic strains and discourages the broad, in-depth news coverage that reveals the value of a free press. Abrams says the Internet offers “an explosion of free speech, which serves democratic interests,” but also makes it easier to avoid contrary opinions—and the kind of robust public debate envisioned by the Founding Fathers. 
 
“While First Amendment law continues to be extremely protective of the press, judges are less likely now than just a few years ago to lean a little bit in favor of the press,” Abrams says. “There’s a shared cynicism among an awful lot of decision makers, in the judiciary and out of it, about the behavior of the press, which inevitably impacts their rulings.” He is especially careful about the way he presents himself to jurors when representing the media in court; he doesn’t want to appear to talk down to the jury. “The media itself is suspected of arrogance, overstatement, a loud sort of ignorance, and it’s very important for its lawyers not to be viewed that way,” he says.
 
 
Abrams has no plans beyond what he’s currently doing: protecting the First Amendment at work, spending time with his family away from work, perhaps going on a real vacation with his wife, Efrat, “which I have not done in many years,” he says. Their son Dan is chief legal correspondent for NBC News and general manager of MSNBC (Abrams calls it a joy to be introduced on college campuses as “Dan Abrams’ father”), while their daughter Ronnie is deputy chief of the general crimes unit for the U.S. attorney in Manhattan. 
 
When asked if he’s used to journalists gushing over him and thanking him for sticking up for a free press, he blushes all the way to his fringe of gray hair, and smiles hugely. “Sometimes the introductions get a bit over the top,” he admits. “But it’s a nice problem to have.”  

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