BOOK REVIEW: Collins’s Nuanced Absolutism: Floyd Abrams and the First Amendment
Collins, Ronald K.L. Nuanced Absolutism: Floyd Abrams & the First Amendment. Durham, N.C.: Carolina Academic Press, 2013.
U.S. First Amendment attorney Floyd Abrams has influenced the evolution of American free speech jurisprudence over the past 40-plus years. Arguably more than any others. Despite his prominence, there have been few book-length publications about Abrams and his approach to First Amendment law, while he has been the subject of numerous news and trade journal articles as “Mr. First Amendment.”
Nuanced Absolutism: Floyd Abrams & the First Amendment is filling the gap in the literature on Abrams. This 12-chapter book is an intellectual biography of Abrams by Ronald Collins, the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the First Amendment Center. The book looks at Abrams’s thinking and speaking about the First Amendment.
Collins focuses on Abrams’s views on freedom of speech and the press as a First Amendment right. So, freedom of religion, freedom of assembly, or the right to petition to the government is not discussed. Noting that lawmakers and judges are not necessarily the only key players in law, Collins emphasizes the oft-overlooked role of lawyers in shaping the law.
Abrams’s approach to freedom of expression under the First Amendment is what Collins calls “nuanced absolutism.” Nuanced absolutism is qualified absolutism in the categorical balancing: “[O]ur law of free speech can and ought to be absolute in certain circumstances” (30).
One example of Abrams’s nuanced absolutism is showcased when he argues: “[T]ruthful speech about public officials in the course of their public duties should never give rise to criminal liability” (22). Nuanced absolutism is also exemplified by the First Amendment ban on prior restraints on news media, on compelled speech, and in “significantly limit[ing]” the government sanctions against unprotected speech (91).
Applying Abrams’s nuanced absolutism, Collins examines a number of earlier U.S. Supreme Court cases, including Schenck v. United States (1919), Whitney v. California (Brandeis, J., concurring, 1927); Brandenburg v. Ohio (1969), and New York Times v. United States (1971). Not surprisingly, Abrams rejects the clear-and-present-danger test of Schenck as incompatible with nuanced absolutism because it is “loose and unpredictable.” More recent Supreme Court cases, such as United States v. Stevens (2010), Snyder v. Phelps (2010), Citizens United v. Federal Elections Commission (2010), and United States v. Alvarez (2012), are thoughtfully analyzed against Abrams’s theory.
Nuanced absolutism is not confined to the courtroom, Collins asserts. It also plays out in legislative forums. Given the First Amendment’s textual premise of “no law,” he writes, “the most important lawyering must occur antecedent to litigation, this to prevent those constitutional wrongs that lawmakers might otherwise commit” (119). Nuanced absolutism was in action in 1980, when Abrams testified before a U.S. Senate committee hearing. Abrams advocated for limits on the scope of the Intelligence Identities Protection Act because freedom of speech and the press would need “some breathing space”:
On the one hand, [Abrams] would not countenance either the illicit disclosure of duly authorized classified information by a government employee or payment for such by a press entity or other…. On the other hand, Mr. Abrams was absolute in his position that the Constitution prohibits the punishment of either the press or a citizen for disclosing information that has already been made public (132).
Collins’s discussion of Abrams on the First Amendment does not necessarily revolve around how nuanced absolutism has guided Abrams in presenting his free speech position in and outside the courtroom. The chapters on a free vs. responsible press and on freedom of information expand on Abrams’s commitment to an open democracy that is made possible only by a free but responsible press and an informed citizenry through freedom of information.
Collins’s “little” book is not encompassing enough to cover all the major First Amendment cases. Indeed, he acknowledges that defamation, shield law, free press vs. fair trial, and related topics are not given attention “with specificity,” since his book aims to serve as an introduction to Abrams’s nuanced absolutism insofar as he discusses the cases in the text (196 n.340).
Hence, it is little wonder that Abrams’s nuanced absolutism is rarely mentioned in a global context. If Collins had referenced Abrams’s international impact as a free speech lawyer, even in passing in text or in an explanatory footnote, it would have provided an insight into Abrams’s role in facilitating the legal transplantation of the First Amendment abroad. This is all the more notable, considering international law on freedom of expression discussed by Abrams in Speaking Freely (2005) and Friend of the Court on the Front Lines with the First Amendment (2013).
As Abrams observed recently: “[W]e are generally perceived abroad (and generally correctly perceived) as beaming legal messages which are more libertarian and more freedom-loving than any other nation ever has. And, more and more, those constitutional messages are reflected in the jurisprudence of foreign nations” (Friend of the Court on the Front Lines with the First Amendment, 125).
Abrams is intimately familiar with the First Amendment’s global impact. In 2002, he successfully argued for a journalistic privilege to protect confidential sources in a press law case of the International Criminal Tribunal for the former Yugoslavia (ICTY), which had resulted from a subpoena against a former Washington Post reporter. “Neutral reportage,” which Abrams persuaded the Second U.S. Circuit Court of Appeals to adopt as a libel defense in 1977, is being recognized in Argentina, Spain, and the United Kingdom in varying degrees. This is a remarkable development in foreign libel law, for neutral reportage is increasingly moribund in American law.
Regardless, Nuanced Absolutism will be a valuable resource for scholars and non-scholars interested in U.S. law on free speech and in Abrams as a distinguished lawyer. It is extensively documented (348 footnotes—more content-oriented than source-citational). The book’s lengthy bibliography lists court cases—federal and state—in which Abrams has participated, his books, journal articles, newspaper and magazine articles, speeches, congressional testimonies, and online videos. Equally important is its comprehensive and detailed index. The index of 18 pages epitomizes Collins’s appreciation of what a meticulous scholar should do in authoring a first-class book for his serious readers.
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Professor Kyu Ho Youm is the Jonathan Marshall First Amendment Chair at the University of Oregon.