Floyd Abrams refers to the First Amendment as "the rock star of the American Constitution," and he should know better than anyone its significance to the American legal system.
Since Abrams helped defend the New York Times from prosecution when it published the infamous Pentagon Papers, and then, years later, argued in front of the Supreme Court in defense of Citizens United, Abrams has garnered a reputation as one of the country's most well-known and respected experts on First Amendment rights.
Abrams' latest book, "The Soul of the First Amendment" (Yale University Press), is a clear and engaging primer that should be required reading for students, lawyers, and regular citizens alike who want an un-biased explanation of the law. Abrams will appear at this year's Savannah Book Festival to discuss his book, which covers topics in free speech ranging from information leaks related to national security (i.e. Wikileaks, Edward Snowden), the protection of "hate speech" (i.e. Westboro Baptist Church) and the freedom to criticize public figures.
In a book full of history, insight and wisdom, one of the most eye-opening revelations is that the U.S. almost didn't have a First Amendment.
"It's a generally unknown fact that the initial votes in Philadelphia at the time of the Constitutional Convention were against having a Bill of Rights at all," Abrams explains. "Now, that was not because the members didn't believe in freedom of speech, freedom of the press and the like, but because a number of them believed for one reason or another that it was either unnecessary or harmful to start listing all the things congress could not do.
"Alexander Hamilton was very much a leader in arguing that there was no need to specify that Congress or the federal government could not interfere with freedom of speech or freedom of the press, but that it would be harmful to do so because future generations would think anything not on the list of what congress couldn't do would therefore be something congress could do â€¦ It's one of the ironies of history that such a significant part of the constitution should have come so close to non-existence."
A common theme that runs throughout "The Soul of the First Amendment" is that, whether you are liberal or conservative, it is better to have offensive or controversial speech defended from government intervention than the alternative.
"Democratic countries have a lot in common and Western Europe and Canada are, by any standard, free, but they have significantly less in the way of protection against governments than we do here," says Abrams. "That leads to, has lead to, and continues to lead to significant differences."
One difference, as described in Abrams's book, is Europe's "right to be forgotten" where individuals can request that Google delete articles about them that they believe are no longer "relevant."
"In Europe, that is the law and over half a million previously published news articles, which on their face were accurate and which had not been challenged in court, have been stricken from Google and other entities because of this 'right to be forgotten,'" says Abrams. "That would be unthinkable here, absolutely unthinkable - damning truthful speech, limiting recitation of facts about people - but it is law in Europe."
Another major difference mentioned in the book was illuminated by the controversial Citizens United case, in which it was argued that individuals or corporations should be allowed to spend as much as they want to advertise during a political election. It is in stark contrast to England, for example, where until recently, the limit imposed on outsider political spending was roughly $7.
"In England, they look to us, saying, 'Look what happens if you don't have these limitations,'" says Abrams. "I mean, we are the elephant in the room there that they cite to prove the point of what happens if you allow a great deal of spending, but the other way to say that is that the only speech that they really allow to be funded during elections is speech of the political parties or candidates themselves - not third parties, not outsiders, as they view it.
"So, when a pro-life group in England wanted to send leaflets around opposing certain candidates because of their views on abortion, it was criminal for them because they were spending more than the very few dollars that they were allowed to spend there."
Abrams adds, "Sometimes an act that is protected is so intricately connected to some spending - sometimes a lot of spending - that you can't allow the first without protecting the second."
In case after case, Abrams makes clear that the First Amendment, as it is written, only protects speech from the government, but that does not mean citizens can't be guided by its principals.
"I think that the First Amendment as law should apply only as a limitation on government. That doesn't mean that a football player that is dismissed because he kneeled shouldn't be honored or at least protected, but that protection is not 'legal' protection - it's public opinion protection. What we're talking about in those cases is the 'spirit' of the First Amendment, which is very important, but which is not legally based.
"When a child who learns about the First Amendment says, 'I have a right to say that' and 'that' is something at home responding to his parents, that is not what the law is," Abrams continues. "People in their lives on a day-to-day basis recognize that there is a benefit to all to allow the broadest articulation of views. That doesn't mean they can't express their own, they can't harshly criticize the view of others. But what I refer to as the 'spirit' of the First Amendment is very real and very important."
Book: "The Soul of the First Amendment"
When: 9 a.m. Feb. 17
Where: Jepson Center, Neises Auditorium, 207 W. York St.