FOR RELEASE: March 10, 2010

Mr. Keith Olbermann
“Countdown With Keith Olbermann”
30 Rockefeller Plaza
New York, NY  10112


An Open Letter to Keith Olbermann:

As members of The Media Institute’s First Amendment Advisory Council, we are writing to take strong issue with your “special comment” of January 21, 2010, in which you personally attacked one our members, the preeminent First Amendment attorney Floyd Abrams, for his role in the case Citizens United  v. Federal Election Commission.

Just to be clear at the outset, we are not concerned about the fact that you expressed a strong opinion about a Supreme Court case that has generated a great deal of public comment and controversy.  Quite to the contrary, we celebrate the fact that you are free to express your opinions without fear of government reprisal.  Many of us admire the fact that you emerged as a prominent critic of federal policies at a time when many others were still trying to find their voices.

But our admiration stops when confronted with the type of personal invective that you heaped upon Mr. Abrams for the fact that he represented a client whose position you dislike in Citizens United.  Although you acknowledged – accurately – that Floyd Abrams “has spent his life defending American freedoms, especially freedom of speech,” you went on to say that “when it really counted,” he “help[ed] the corporations destroy free speech.”  You described the Citizens United case as “the raping and pillaging of the First Amendment, by people who can buy the First Amendment,” and you predicted that Floyd Abrams “will go down in the history books as the Quisling of freedom of speech in this country.”

For those who might not have understood your historical reference, Vidkun Quisling was the Norwegian leader who collaborated with Nazi Germany and assisted with its conquest of his own country.  Quisling not only provided full details to the Nazis of Norway’s defenses, thus making way for Germany’s successful invasion, but was appointed by the Nazis to serve as Premier of Norway under German occupation.  In that post, among other acts, he deported thousands of Norwegian Jews to their deaths in Germany.  He was executed by Norway after the war for high treason.

The name “Quisling” became a synonym for “traitor” when Churchill famously invoked it in applauding the entry of the United States into World War II: “Hope has returned to the hearts of scores of millions of men and women, and with that hope there burns the flame of anger against the brutal, corrupt invader.  And still more fiercely burn the fires of hatred and contempt for the filthy Quislings whom he has suborned.”  But given the actions Quisling actually took to facilitate the deaths of thousands of Jews, your use of that name to describe Floyd Abrams is an insult that far exceeds the word “traitor.”  It is something far worse.

Floyd Abrams is the foremost First Amendment advocate of our time.  He also is Jewish.  For any Jew to be compared to a Nazi collaborator is vile, but in the case of Floyd is simply beyond comprehension.  But your offhanded inclusion of this ugly epithet points to a deeper problem that has degraded public discourse – the breakdown of civility.

As First Amendment lawyers, we believe that discussion of public issues must be vigorous, probing, and hard-hitting.  The free exchange of ideas may at times be heated and not altogether comfortable for the participants, but these conditions simply go with the territory.  Unfortunately, in recent years, personal attack has begun to supplant reasoned debate with depressing frequency.

We have watched with dismay as much of the political dialogue in this country has devolved into high-volume name-calling contests.  Such shout-a-thons are not debates; they are quarrels.  Perhaps you are familiar with Godwin’s Law, which posits “as an online discussion grows longer, the probability of a comparison involving the Nazis or Hitler approaches 1.”  Of course, vilifying a political opponent is not a phenomenon that emerged with online communications.  Senator Joseph McCarthy and Father Charles Coughlin made it a dark art form long before anyone ever imagined the Internet.

There is no shortage of historical examples or current practitioners of this false form of argumentation.  They unfortunately are too numerous to name here.  However, we are writing to you in the hope that you were not among them.  We also are hoping that your slur of Floyd Abrams was simply a lapse of judgment, and not a foreshadowing of things to come.

Another troubling aspect of your attack on Floyd Abrams is the extent to which it conflates the lawyer’s identity with the case at hand or with a disfavored client.  In this case, Mr. Abrams did not even represent the petitioner in the case, as you evidently assumed, but instead represented Senator Mitch McConnell in a friend-of-the-court brief.

Be that as it may, we currently are witnessing a similar tactic by a group seeking to discredit a number of attorneys in the Department of Justice who, in private practice, had provided pro bono legal assistance to detainees at Guantanamo Bay.  A group calling itself Keep America Safe has produced a video that labels the DOJ lawyers “the al Qaeda 7,” and suggests strongly that these professionals were disloyal to the country through their prior representations.

We expect better from you than this.  We are certain that you are aware that the lawyers who volunteered their time and provided their professional expertise to assist detainees did so in the finest traditions of the Bar and in service of this nation’s commitment to the rule of law.  In much the same way, First Amendment lawyers frequently defend unpopular causes for the simple reason that popular causes generally need no defense.  The First Amendment exists precisely to protect the rights of unpopular minorities (including, yes, the American Nazi Party) and those who are unpopular but deserve a defense (such as certain criminal defendants).  If you believe that attorneys should be personally vilified whenever they advocate a cause you oppose or a client you dislike, we would like to know how you believe our system is supposed to work.

Many of the freedoms you enjoy as a journalist exist because of the work of Floyd Abrams throughout his exemplary career.  Yet even if Mr. Abrams had not blazed important paths for the rights of the press, he does not deserve  to be personally insulted, which for you may have seemed like nothing more than a clever turn of phrase.

Of course, you have the right to say what you did in your “special comment.”  None of us questions that, and each of us would be willing to defend against any attempt to suppress your speech.  We do not doubt your rights – just your judgment.  It does not endanger free expression to counsel self-control and civility.

Reasonable minds can differ on the Supreme Court’s Citizens United decision, and we fully expect it will be just the beginning of a continuing contentious debate on campaign speech and regulation.  We look forward to your contributions to that debate.  But we also look forward to your public apology to Floyd Abrams for your unwarranted personal attack.


Robert Corn-Revere, Esq. *
Davis Wright Tremaine LLP
Washington, D.C.

Lucy A. Dalglish, Esq.
Executive Director
Reporters Committee for Freedom of the Press
Arlington, Va.

Prof. Adonis Hoffman
Georgetown University
Washington, D.C.

Tony Mauro
Supreme Court Correspondent
American Lawyer Media
Washington, D.C.

Prof. Robert M. O’Neil
Founding Director
The Thomas Jefferson Center
for the Protection of Free Expression
Charlottesville, Va.

Bruce W. Sanford, Esq.
Baker & Hostetler LLP
Washington, D.C.

Dean Rodney A. Smolla
Washington and Lee School of Law
Lexington, Va.

Kurt Wimmer, Esq.
Covington & Burling LLP
Washington, D.C.

Prof. Laurence H. Winer
Sandra Day O’Connor College of Law
Arizona State University
Tempe, Ariz.

* Members of the First Amendment Advisory Council of The Media Institute, Arlington, Va.  Kurt Wimmer, Esq., is Chair of this Council.  Organizational affiliations are listed for information purposes only.