By Floyd Abrams…
American First Amendment law, former United States solicitor general and associate justice of the Supreme Judicial Court of Massachusetts Charles Fried has rightly said, “is the most libertarian and speech protective of any liberal democratic regime.” As such, its consequences and implications are profound.
The exceptionalism of the United States in the protections it offers to freedom of expression does not mean that other democratic nations do not respect, honor, and generally seek to protect it; it does mean that American law does so more often, more intensely, and more controversially than is true elsewhere. Nor, to put it another way, does it mean that the United States cares less than other democratic nations do about a bevy of competing interests such as the vice of discrimination, the need for equality, the harm that defamation can do to personal reputation, the significance of personal privacy, and the need to safeguard national security. It does mean, however, that although American law seeks to protect those interests, it does so only after weighing, with far greater concern than occurs elsewhere, the danger of government interference with and control over free expression.
There is no doubt that a price is paid, sometimes a serious one, for doing so; the American approach is not oblivious to that price but insists (as other countries do not) that the dangers of permitting the government to decide what may and may not be said, far more often than not, outweigh any benefits that may result from suppressing or punishing offensive speech.
When President Franklin Delano Roosevelt delivered a celebrated radio address to the nation early in 1941, he offered a vision of a postwar world that would be guided by four principles. The speech came to be known as the Four Freedoms Speech and first was freedom of speech. When the artist Norman Rockwell attended a town meeting in Vermont later that year and saw a single person rise and speak in opposition to a popular proposal to build a new school, he was struck by the respect with which all who attended the meeting gave to the dissenting citizen. Rockwell painted a picture showing the man as others in the meeting carefully listened. He called the painting Freedom of Speech. He then painted three more relating to the other freedoms listed by Roosevelt in his speech – freedom of worship, freedom from want, freedom from fear. Each appeared on the cover of the Saturday Evening Post, and each has been widely displayed ever since throughout the country.
Two of the Four Freedoms so celebrated are to be found in the First Amendment, and it is no exaggeration to say principles of law, however significant, rarely receive such fame or adulation. The First Amendment is the rock star of the American Constitution.
Floyd Abrams is a senior partner in the law firm of Cahill Gordon & Reindel LLP in New York. Mr. Abrams has been at the center of landmark trials and Supreme Court arguments that have involved key First Amendment protections, including the Pentagon Papers case. His latest book is The Soul of the First Amendment (Yale University Press, 2017), from which this essay was adapted.