Debate on Citizens United v. Federal Election Commission.

AuthorAbrams, Floyd

MR. RONALD COLLINS: One of the joys of getting older is the experiencing of the gracious words of the young, however exaggerated.

That said, Benjamin, I very sincerely appreciate those kind words, and I only wish my mother were here to hear them.

It is a great pleasure, indeed it is an honor, to be at Robert Jackson's Law School, and I want to especially thank Dean Andrews, the faculty here, and most of all, I see the Editor-in-Chief over there in the corner, of the Albany Law Review, for making this event possible. And it's really quite a program, and I'm delighted and honored to be a part of it.

I have already had the pleasure of meeting some of the faculty, and I look forward to meeting more, including people outside of my field. Just yesterday I had the opportunity to chat with some people from Tax--from Tax Law and Trust and Estates, and I welcome the opportunity to meet people who work outside of my field. Who knows, I may actually learn something. I'm always looking forward to doing that.

Before I begin, at least say a few things about the exchange that will take place today.

I have a noted nod of recognition to at least three members of this faculty, whose works over the years I have been the beneficiary of. Of course, there'd be more, but three came to mind.

Paul Finkelman, who I gather is not here today, for his incredible work in legal history and Constitutional Law. I have read, and continue to read his works.

Vince Bonventre, vehemently an expert on State Constitutional Law, and many years ago, we tilled those fields together, and it's so wonderful to be back at this law school, here with Vince, who I haven't seen in a long time.

And Professor Stephen Gottlieb, whose works in Constitutional Law and jurisprudence I have learned much from over the years.

So I'd like to just recognize that, and say it's just an honor to be here with them today.

And, of course, Benjamin, what this young man has done is remarkable. I did not plan to come to this conference, I just had too much to do, but he wowed me in more ways than one. And if a genuine passion for the law, combined with a divining commitment to excellence is the measure, then he is the man, and I know I speak for all of us in extending a sincere---our sincere appreciation for all the work that Benjamin has done, so Benjamin...

(Applause)

MR. COLLINS: I am honored and humbled to be the middleman, literally and figuratively, between two legal giants in our profession: Floyd Abrams and Alan Morrison, both of whom I have known for many years.

One of them is the leading authority on First Amendment law. If you ask anyone in our profession to name a First Amendment lawyer, they would name Floyd Abrams. Without a doubt. If you asked them to name two, they're hard pressed. Such has life come to be, Floyd.

In the area of Public Interest Law, there are few names, if any, to rival the achievements of Alan Morrison. Just last night I discovered that on the D.C. Court of Appeals Historical Society's website, there was this incredible profile, replete with interviews of the work that Alan Morrison has done over the years, and I'll tell you, anybody who remembers the name Louis Brandeis, it is without exaggeration to say that he is the embodiment of that man in our own time. So it's a great pleasure to be here with Floyd and everyone today.

The occasion for this exchange between these two distinguished lawyers is, of course, the U.S. Supreme Court's controversial ruling in Citizens United v. Federal Election Commission. (1) With that case, the First Amendment once again became the center of controversy in the cultural wars that define this nation.

Not since the flag desecration cases of the late 1980s and early 1990s (2) and the proposed constitutional amendments following them, have we seen anything in the First Amendment area quite as divisive as the Court's 2010 campaign finance ruling.

On the one hand, many liberals, people who typically are thought of as supporting the First Amendment, led the charge to either overrule Citizens United, or amend the Constitution to do so. For example, Professor Geoffrey Stone, one of the leading constitutional scholars, excelling in the area of First Amendment work, has flirted with the idea of moving for constitutional amendments to replace Citizens United.

Many liberals see Citizens United as a modern day campaign to revitalize what is known as "Lochnerism," a way to capitalize on the Constitution as a tool for the privileged few. For them, Citizens United--like Lochner v. New York in 19053---is a pernicious example of judicial activism in support of a bold attempt to write laissez-faire principles into the Constitution of the United States.

On the other hand, many conservatives, who are not infrequently hesitant to defend the First Amendment, argue that Citizens United is nothing more than a classic example of protecting political speech.

As for extending constitutional protection to corporations, conservatives delight in reminding their liberal counterparts that many landmark First Amendment cases involve--yes, involve--corporations. Cases such as Near v. Minnesota, (4) NAACP v. Alabama. (5) Now you might say, well, where is the corporation? It's NAACP, Inc. New York Times v. Sullivan, (6) Bigelow v. Virginia, (7) Hustler Magazine v. Falwell. (8) One could go on and on. All of those cases involve corporations--some for profit, some for non-profit, some involving the press, some not.

And conservatives point to the oral arguments in Citizens United when Malcolm Stewart, the lawyer for the Solicitor General's Office, conceded that the McCain-Feingold Act would apply to certain types of political advocacy offered in books. In other words, that the government could restrict some expression in books, at least so was the concession made during the oral arguments.

So Citizens United: it an example of defending a cherished First Amendment right? Or is it rather an example perpetuating a horrific First Amendment law?

To help us answer these questions, Floyd Abrams and Alan Morrison have kindly agreed to debate the point. You have their bios in front of you, so I will not take any further time to sing their praises.

Before we begin, just let me say a few things about the format.

Each gentleman will begin with a seven-minute statement of his views--just a summary of them. But thereafter, five questions will be posed to them. Before today's exchange, I asked each gentleman if they would submit five questions for me to ask the other, and they did it. And just a few moments ago, I gave them the questions. So prior to five minutes ago, they haven't seen them.

So what I will do is, first ask them to speak for about seven minutes, and then when they're done, I will ask Mr. Morrison a question that Mr. Abrams posed. And then if Mr. Abrams cares, he can respond. And thereafter, I will ask Mr. Abrams a question that Mr. Morrison had posed, then we'll go back and forth. And when that's done, we invite your questions and commentaries at the end of the exchange.

So, with that said, let me now turn it over to Mr. Floyd Abrams.

(Applause)

MR. FLOYD ABRAMS: Thank you, Ron.

I won't repeat all the thanks to all the people that were involved in creating this wonderful event, but I must say, that the work that Benjamin has done to do this is really unequaled. In my years of doing panels, I want to tell you, it's hard to put together a panel like this, and then all of us have reasons to say we're busy, it's even true. He lured us all to Albany today, and we're all very glad to be here.

Given the limited amount of time that we have for our introductory statements, I was tempted to show you, as half of my statement, the film that was involved in the Citizens United case. The sort of hit job on Hillary Clinton, prepared by very conservative people, who belong to an organization, which is in corporate form, and that receives some of their money from corporations. It was prepared at the time that she was running for president, running for the Democratic nomination, and, at a time, was the frontrunner over then-Senator Obama, who seemed unlikely to be the Democratic nominee. The theme of it was that she was unfit to be president. And I will say no more about the film, other than that Ann Coulter was the most moderate person on it.

So I'm tempted to start by saying that what surprised me most about the Citizens United opinion, is that there were four dissenters. (9) Four people that thought that film could be a crime: a criminal act, if shown on television, within sixty days of an election. Of that election. Or thirty days of the Democratic Convention, etc. That's what the McCain-Feingold Law said. And that was one of the main features of it, but ultimately doomed it in the Supreme Court.

As to two days ago, President Obama spoke at the United Nations, and he made a point of saying that in America our Constitution protects the right to engage in free speech, even, he said, we do not ban blasphemy against our most sacred beliefs. He might have cited the cases that show that even when we do not love others' speech, we do not ban or punish it, or limit it, as well.

We don't impose liability. We don't allow a jury to impose liability against a group of individuals just out of sight, but not out of mind, of a church in which a funeral was being held for an American soldier. People holding up signs saying, "Thank God for Dead Soldiers," "You're going to Hell,", and "Fag Dooms Nations." That was all protected by the U.S. Supreme Court. (10)

We don't permit statutes to make criminal the creation of films that depict the intentional torture and killing of helpless, small animals; cats and dogs, by women wearing high-heeled shoes who slowly crush the animals to death. Making the film of that--not killing the animals, but making the film of that was held by the Supreme Court, protected--in the context the case came up, protected by the First Amendment...

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