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First Amendment Expert: Other Countries Would Have Criminalized Trump's Comments

Dan Margolies
KCUR 89.3

Floyd Abrams probably is the best-known First Amendment lawyer in the United States. He represented the New York Times before the Supreme Court in the landmark Pentagon Papers case in 1971 and argued in the controversial Citizens United case, decided in 2010, that restrictions on corporate expenditures in elections violated the First Amendment. His newly published book, "The Soul of the First Amendment," argues that America's guaranties of free speech and press set it apart from the rest of the world. 

Abrams, a partner with Cahill Gordon & Reindell in New York, was in Kansas City last week and spoke to 250 Johnson County high school students about the First Amendment at an event sponsored by the Johnson County First Amendment Foundation. The foundation was established in 1999 by the Kansas City law firm of Shook Hardy & Bacon after its attorneys successfully represented Olathe students who challenged the removal of the book “Annie On My Mind” from school library bookshelves.

His remarks have been edited for length and clarity.  

On what the First Amendment says

It’s all phrased negatively. It doesn't say everyone shall have the right to free speech, everyone shall have the right to freedom of religion. It says Congress shall pass no law abridging the freedom of speech or of the press. And they did that on purpose, to make it very clear that what they were adopting was law — not just aspirational, not poetry, not hopes for the future but what was intended to be law — enforced by judges when issues came up.

On First Amendment cases throughout history

There were almost no cases involving the First Amendment until the 20th century. The Supreme Court didn't have a single case of any moment in the 19th century relating to freedom of the press. How did it apply? It wasn't until World War I 100 years ago — only then, when people started to be jailed for opposing the war, did we start to have cases in which the Supreme Court was faced with the task of deciding at a time of war what sort of lines could be drawn about freedom of speech.

On how the First Amendment differs from the law in other democracies

The law that's developed has been much more protective of free speech than is the case just about anywhere else in the democratic world. No other democratic country would protect, for example, what we call hate speech, in which people attack people because of their race, religion or sexual orientation. 

I mention in my book when Donald Trump ran for president and some things he said about Mexicans and Muslims, which were very, very controversial to say the least — they would have been criminal throughout western Europe. 

On certain misconceptions about the First Amendment

Remember, when we talk about the First Amendment and the Constitution, we're talking only about the government. You don't have a First Amendment right against your friend. You have a First Amendment right to have the government not punish you for what you say or not limit you for what you say. The Bill of Rights is only, and it's deliberately phrased that way, a flat and often clear limitation on what the government can do.

On whose speech is protected by the First Amendment:

We as a country tend to protect broadly the speech of individuals, of individuals when they get together, individuals when they form corporations and the like. The limits that we have on speech tend to be the same with respect to individuals and corporations and other institutions.  

On whether a Colorado baker’s refusal to make a wedding cake for a same-sex couple is protected by the First Amendment (the case is set to be argued before the Supreme Court next month)

His position is that, 'I’m an artist and these are my creations and you wouldn't make a painter paint a picture of someone whom he didn't want to paint a picture of.' The state of Colorado says the baker has violated its anti-discrimination law. I personally filed a brief supporting the state of Colorado after starting out sort of on the other side in my thinking. It's a wonderful case for the Court to decide. They could decide this is all nonsense, he's not an artist, he's just a tradesman, it’s no different than segregation in the South. You wouldn't have any trouble saying that's not protected by the First Amendment. They could talk about whether a cake is ever a work of art or they could talk about how it doesn't matter because if he opens a shop and basically asks people to come in, at that point he can't say anymore, 'But not you.'

Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.

Dan Margolies has been a reporter for the Kansas City Business Journal, The Kansas City Star, and KCUR Public Radio. He retired as a reporter in December 2022 after a 37-year journalism career.
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