Author: Kyu Ho Youm

0

BOOK REVIEW: Collins’s Nuanced Absolutism: Floyd Abrams and the First Amendment

floyd abrams book ron collinsCollins, 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.

Read More