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‘Speaking Freely’ Highlights Abrams’ Top Cases

At lunch on June 14, 1971, Floyd Abrams spoke freely in regard to a front-page New York Times article published the previous day under the headline “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement.” Hours later, that conversation changed his life.

In his book “Speaking Freely,” Abrams recounts eight cases from his more than 30-year career defending the First Amendment. Not surprisingly, the first chapter is titled “The Pentagon Papers Case,” which to this day remains the most important case Abrams has worked on.

That June 13 Times article took up space on page 1, in addition to three full pages inside the paper, and was described in the story as “a massive study of how the United States went to war in Indochina, conducted by the Pentagon three years ago.”

But that initial article and the one that followed a day later led both Abrams and his constitutional law professor from Yale University, Alexander Bickel, to confidently state that the government “would not likely be so foolish” as to attempt to stop the Times from publishing the information.

“Oh sure, at lunch we all had the freedom that lawyers without clients have, so we were just going on about how the government wouldn’t go to court and couldn’t go to court because it wouldn’t win,” Abrams said in a telephone interview last week. “And so it came as an enormous shock when at 1 in the morning I got the call from the general counsel of The New York Times, James Goodale, asking if I would work with Professor Bickel on the Pentagon Papers case itself.”

Perhaps it should not have been such a shock, as about four years earlier on a trip to New Delhi, a fortune-teller had predicted that before turning 35, Abrams would go to his country’s capital “to work on something important” that would make him famous.

When the Times’ regular counsel refused the case, Goodale thought of Bickel and Abrams as they had “spoken so persuasively at lunch about the right of the Times to publish,” Abrams wrote. At the time, Bickel and Abrams were working on a friend-of-the-court brief, which lacked “all the drama of doing the case yourself,” Abrams said. So he and Bickel took on the Pentagon Papers case, which began a career for Abrams that was anything but lacking.

“The effect of that case on me personally was that I came to be associated with this field [of First Amendment law] and viewed as knowledgeable, and I came to have the chance to do a lot of other cases and finally to build a career around cases in this area,” Abrams said, pointing out that at the time of the Pentagon Papers case, “there were no lawyers who one would have called ‘First Amendment lawyers.’”

Abrams said he was always interested in First Amendment law, but he wasn’t always on the same side. In college, he wrote his senior thesis on “fair trial/free press,” in which he advocated the United States adopting the English system.

“I had very different views when I was younger, and they didn’t really change very much in law school,” Abrams said. “What changed them was starting to work on matters involving the press in the late ’60s and early ’70s and, more importantly, seeing on the ground the essentiality of a genuinely free press at a time under President Nixon when the press was under very serious attack by the administration.”

One such attack came about in the Pentagon Papers case, and aside from it being such a landmark case in United States history, it also is a landmark case for Abrams, as it was his first case to go before the Supreme Court.

“In the Supreme Court far more than any other court, questions are very often hypothetical in nature to test one’s thesis to see how well what you’re saying and what you’re urging on the court would stand up in future cases in front of the court,” Abrams said. “The important thing is to be ready for them.”

Of course, preparing to argue a case in front of the Supreme Court is not necessarily an easy task. Abrams said different people have different ways of practicing for the court. While some lawyers like to practice in advance, Abrams said what works best for him is to sit and talk with colleagues about “what the answers ought to be to the hardest questions.” He also said that there is no reason “why members of the court ought to be ahead of members of the bar in understanding what the case is about and seeing all the potential ramifications,” as the court has numerous cases on its docket at one time and “the lawyer has one or two.”

Abrams said one of the reasons he wrote “Speaking Freely” is because “the public does not have enough of a sense of why it’s important to protect freedom of speech and of the press,” and he thought he could try to show that importance by using cases he’s worked on through the years, he said.

Selecting which cases to include in the book was difficult; “they’re really all my children, I really can’t pick and choose,” Abrams said. But he was able to narrow it down to eight, three of which are libel cases, ranging in topics from the Pentagon Papers to the Newsday 32-article series titled “The Heroin Trail.”

While Abrams obviously was already knowledgeable on the cases he chose for the book, he said he had “an enormous advantage” of having transcripts of all the arguments.

“If I hadn’t had transcripts of arguments it would have been extremely difficult to do, because memory plays terrible tricks,” Abrams said. “For one thing, you start sounding a lot better than you were.”

Abrams said he didn’t take time off from work to write the book, and he completed it on weekends and nights in about a year and a half.

“With the solidity of a transcript in front of me, it wasn’t so hard to get back into the same mental frame that I was when I did the cases,” Abrams said. He added that looking back at his performances, the arguments of people he was against and the behavior of the judges was a “rare treat.”

While Abrams wants his book to appeal to lawyers and journalists, he wrote in the introduction that his “real intended audience is readers who live in this country and abroad who want to know more about just what we do protect and what we don’t, and who are prepared to make their own judgments about how far our protection of free speech should go.”

He also is sure to point out that “the essence of the First Amendment, after all, is that we don’t all have to agree.”

Abrams will be in Washington, D.C., this week for two promotional events. At 7 p.m. tonight he will sign copies of his book at Politics and Prose, 5015 Connecticut Ave. NW, and at 6:30 p.m. Wednesday he will be at the National Press Club for an event that will include a discussion, question and answer session and a book signing.

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