Freedom of the Press, with Floyd Abrams

>> Eugene Volokh: Hello and welcome to Free Speech Unmuted, Hoover Institution's podcast on free speech. Your hosts are Jane Bambauer from the University of Florida, and I, am now at the Hoover Institution at Stanford. Before we get to our First Amendment discussion, I wanted to mention that the Stanford Emerging Technology Review for 2025, co-chaired by, among other things, Hoover, by among other people, Hoover Director Condoleezza Rice, has now been released.

It's a very interesting document discussing recent developments, not on law, but on technology. I'm looking at the table of contents now. It covers AI, covers biotech, cryptography, lasers, material science, neuroscience, robotics, semiconductors, space and sustainable energy technologies. So if you're at all interested in any of these subjects, check it out.

It's at setr.stanford.edu. And we have a link in the show Notes. And we have a guest, Floyd Abrams, who is a legendary First Amendment lawyer. I don't mean that legendary in the sense of semi mythical. He's quite real, but legendary nonetheless. He has argued 13 cases before the Supreme Court, mostly First Amendment cases.

We're delighted to have him here.

>> Jane Bambauer: Great, and one reason for the visit is that Floyd Abrams has just published a piece in the Journal of Free Speech Law along with his co-author, Sandra Baron, Lee Levine, Jacob Schriner-Briggs, and Isaac May. And we'll have a link to this piece in the show Notes, but it's called the Press Clause, the Forgotten First Amendment.

And so, Floyd, I hope we could get started by having you explain why you think that the Press Clause, the First Amendment, needs to be revitalized and be understood as something that provides protection beyond what the Free Speech Clause already does.

>> Floyd Abrams: Well, one of the reasons is historical.

That's what the Framers thought when Madison introduced the first draft, as it were, of the Bill of rights in the first Congress meeting in New York in 1798. He did so with a statement expressing generally why we were going to have the equivalent of a First Amendment. And after talking about the speech, he then said, I'm quoting now, that we would be protecting, quote, the freedom of the press, one of the great bulwarks of liberty, shall be inviolable.

That word inviolable appears in state constitutions of the time and in just about all the states, if not all, there is separate reference to the press, not because the press is more important but because it's sometimes somewhat different than freedom of speech. The Framers knew and were concerned about suppression of newspapers as well as other sorts of speech but they talked about newspapers.

One of Jefferson's Best known observations almost sounds like a line and a show and a word left to me to decide whether we would have newspapers, whether we would have government without newspapers or newspapers without government. I would unhesitatingly choose the second. And that's because newspapers mattered a lot in those pre-revolutionary and then post-revolutionary days, and that there had been a history of suppression of one sort or another of the newspapers that existed then.

So it found its way, after editing, into the First Amendment. And we haven't heard much about the press. The press clause to which you adverted earlier, which is the first member protects deprivation, the freedom of speech, quote, or of the press, unquote. So why did we write the article?

We wrote the article because it has become commonplace for lawyers appearing in front of judges, representing newspapers and other forms of written speech and the like, to be confronted with, why are you so special? Why do you need a special protection and the like? And when the lawyer would say, there's a big fire in midtown and the police won't let us in, or there are riots going on, we want to cover it.

That's what we do, is to cover newsworthy events. And so we think we should be allowed in that at least. Very often the general reaction of judges, not always, but very often, is, why am I doing this for those guys? And they even mess up and write stories that aren't quite right or maybe right at all.

And so we wind up with a situation with a Constitution, with a First Amendment, no less, with specific language about the press, freedom of the press. We can argue about what that means in different circumstances, but specific reference to protecting the press. And there hasn't been a whole lot of constitutional protection of the press, certainly not that sometimes even mentions the reference to the press and the First Amendment.

A final introductory remark. The press has won a lot of cases in the court. I've fortunately been involved in a few of them. I mean, it is not as if the press never wins a case, but there is a remaining sense that in all fairness, there shouldn't be anything special, different, more for the press.

Justice Kennedy, a real First Amendment guy, wrote in a otherwise very controversial opinion that the notion that a press corporation receives more rights than a another sort of corporation, a speech, let's say, oriented corporation, completely. I mean, he laughed at it in the Citizens United case while ruling in favor of the plaintiffs in that case.

And here's someone that I'm really not Exaggerating. We, in what I loosely call the First Amendment bar, are often quoting Justice Kennedy because he has written very protectively of free speech. And the idea that his conclusion, after all that and all of his deep beliefs, not always shared by all members of the Court, but by him, that the notion of greater, different, unique press rights, again, a press corporation having more or different protection than speech rights, was unacceptable, unworthy even.

So we decided there really hadn't been an awful lot of focus by the Supreme Court on the Press Clause, and we would do our best to write something about it, but both historically and from an aspirational point of view, and that's what we did.

>> Jane Bambauer: So let me see if my understanding attracts yours.

I think we'd agree that since the Founding, over time the Speech Clause has been interpreted or has sort of become stronger and been interpreted or, you know, such that what was true right after the founding, in the era when, like, the Alien Sedition act passed, would not. Would not pass the same level of protection and scrutiny that we have now under the Speech Clause.

Right. So I imagine that one reason Justice Kennedy says what he says is that he thinks that rather than raising the institutional press above the rest of us and giving them special rights, everyone who might be identified as a speaker ought to have their boat lifted as well.

And so, I mean, even if he wouldn't say, quite put it this way, let me challenge it. Why wouldn't we want anything that seems appropriate to give the press? Why wouldn't we want to give those same rights to anybody who is, you know, a bona fide speaker of some sort?

>> Floyd Abrams: Because there's no room and because they would interfere with what was going on. I mean, to take my two easy examples, a riot, you can't let everybody in, they'll wind up being caught up in a riot. So for a journalist to cover it is performing a special sort of public service that an open door to anybody coming there would not do.

And the same, what did I say? Fire? Because I had a case once representing a journalist who was not given a press card for one irrelevant reason and therefore couldn't cover something that the 2 million then readers of the New York Daily News would have no other intimate access to.

So it's not all a situation where you need more or even different than for the press. But sometimes And the Press clause would be. Could be, I thought, should be available to that.

>> Jane Bambauer: Okay, one more question. Sorry, and then I'll Okay, so I think people will wonder then, well, how do you define who gets to be counted as the press?

>> Floyd Abrams: And it's not easy and it certainly is not a one line answer sort of situation. How it has been defined in terms of press passes by. Are you working for a regular entity, you know, which, which has its dangers to, you know, the regular entities pre existing what newspapers at least in the old days when, when we had newspapers around and about, you know, the, I mean, the fact is there are lots of situations in which one, a rational society simply cannot let everybody in to watch something that's going on.

>> Jane Bambauer: Like a White House press briefing, for example, to take a very topical example.

>> Floyd Abrams: Yes, yes. And when, you know, when an entity makes decisions like a president about not allowing someone end because he or she is offended at what they write or what they carry, that's a good example of where a press clause would be particularly relevant.

>> Eugene Volokh: So Floyd, let me ask you this, the press could mean two different things in the First Amendment. One thing is the press's industry, like talk about members of the press, people who are employed by newspapers or broadcasters or maybe websites that satisfy whatever criteria we use to define what to define that industry.

The other possible interpretation of the press is it's a technology. It's the printing press. That's how the technology, the framers understood there and knew that it was a technological advance that made free speech much more effective in many ways because you could communicate to the much broader public.

And of course, because of technological changes, it would also include its technological errors like the Internet. So the Court has at times said, here I'm quoting from Lovell v Griffin, a 1938 case. It said that freedom of the press is a fundamental personal right which is, quote, not confined to newspapers and periodicals.

It necessarily embraces pamphlets and leaflets. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion. So that's focusing on whether somebody's trying to use mass communication technology, regardless of whether they are professional journalists, leafletters and pamphleteers historically had not been professional journalists.

And the people involved in particular in Lovel v Griffin were not. And people involved in many cases who claim free press protections from libel law, let's say, or First Amendment protections more broadly from libel law are not professional journalists. They could be academics, they could be political activists, they could be just ordinary citizens.

So why wouldn't the free press clause be understood consonantly with what the Supreme Court said in Level v Griffin and has reaffirmed since then. Which is that the free press clause in the Constitution protects everybody who uses mass communication technology the same way. Now, there might be some extra statutory protections or extra just regulatory schemes that give extra rights to access, for example, crime scenes that may be defined by not just are you a member of the press, but also how large your audience is or whatever else.

Nobody has a right to go to a White House press conference as such, but in the sense that. That nobody has a right to have the White House hold press conferences, but it sets it up and it may allow for press passes and not give them to everybody, setting aside the question of whether they can restrict them based on viewpoint.

So there would be these additional things that could be given to particular kinds of industrial organizations, as it were. But that the Free Press clause itself covers the lonely pamphleteer and leaf litter who's not doing it as part of the press's industry as much as it covers the New York Times or a broadcaster.

Why isn't that the right, right approach?

>> Floyd Abrams: I don't have a problem with a broader interpretation of the press that is protected. I have to say. My concern is that too often nobody is getting those protections and that it's essential that what at least the press is you.

In non-technologically advanced times, the press was at least comprised of people who wrote things down, whether or not they were necessarily employed by newspapers and the like. So it doesn't, doesn't pain me to, to have a more expansive view of the press clause, except that it could too easily make it unmanageable, which is to say too many people could make too many claims.

You know, I want to be at the riot. I want, I'm a citizen, I have a right to be there. I mean, that's not an offensive to me at all or even unpersuasive position. My view is that at the least the press people who gather information for broader dissemination to the public should be able to play that role and the press clause at least ought to protect them in doing so.

>> Jane Bambauer: So using the riot example, it's possible that the Free Speech clause alone wouldn't support an argument that an otherwise time, place or manner restriction on access to the scene of a riot, so it wouldn't allow the press in. Why can't we still fix that problem using the speech clause?

Okay, I guess the nature of my concern is this who gets to count as press question. So whether it's whether, whether we go with the model of, you know, exercising the press clause in order to solve this access problem, news gathering problem, or whether we stick with the speech clause, I, I guess I would worry less if we had some kind of definition that prioritized access that was, you know, itself quite, quite immune from, from manipulation by courts or whoever it is that's going to give, you know, define the press.

And so it seems to me, you know, Eugene mentioned. Okay, well maybe if it's based on sort of audience size, that might be a viewpoint neutral way of defining something without relying on professional standards and therefore could be credible or another. Or you could go wider like if, if, if, if someone, you know, if, if someone is claiming a bona fide speech related reason to access a scene, it seems that even the O'Brien test might allow them to do so because the, because other, you know, but because otherwise enforcing even a time, place or manner rule would just limit access to, to speech too much.

So I don't know what, so I guess, Are you, are you as nervous as I am about making sure that the definition of a professional press or a professional or of a class of people who get special access could itself be manipulated? Or even if it's not manipulated, it could just be, could be highly distrusted by people who feel like their reporters are being left out.

You know, like the Daily Wire, you know, listener. How are they going to feel about defining the press in the way that your article does?

>> Floyd Abrams: First of all, a lot has changed with the change of technology that makes more information available cheaper to more people, more quickly.

Again, my reaction is that we are moving towards a society in which more information is available, even if there were no press. Press. Yeah, but in which the press as press as we think of it, plays a especially important role. Look, I mean, I spent a good part of my professional life trying to persuade judges this sounds like three generations ago that television and television journalists were entitled to the same protections, print journalists.

And there's no doubt that as there's newer and newer technology, the paper press we see is failing in terms of readership, in terms of power and the like. They still play an often unique role, if for no other reason, because they are only devoted to getting information out as opposed to what A, someone sympathetic with an ongoing demonstration, you know, who wants to be there and be part of it and this and that.

And you know, look, we, we have biased journalists too. All I'm saying is that the inclusion in the First Amendment of a separate reference, an authority given to press and power deprived of the government is something we ought to be celebrating rather than narrowing.

>> Eugene Volokh: Well, so, Floyd, I totally agree that it's important to recognize that the First Amendment protects the freedom of the press.

And I think the court has recognized it in a lot of cases. Because if it only said freedom of speech, that would be open to the argument that, well, when you're talking to someone that's speaking, but when you're using the printing press, that's both literally not speaking, but also much more dangerous, right?

If you're speaking and you're saying bad things, you might persuade a few people to do bad things, maybe a couple of hundred in your audience. But if you're actually able to To persuade thousands or millions through the use of mass communication technology, that's too dangerous. And in fact, the framers were familiar with the situation where.

Where the law. I mean, this was common throughout the world and had been the case in England until several decades before the revolution, where the law basically specially targeted the press as a mass communication technology because it was so dangerous. So the court has said essentially that freedom of the press protects mass communication.

Actually, I shouldn't say the court has said this, it's been hazy on exactly where the line is drawn. But one way to understand the Court's cases is that freedom of speech or of the press makes clear that both oral speech as well as some symbolic expression and speech through mass communication technology is indeed the both of them are indeed protected.

So let me ask you in particular how this would play out, a very common example. I think you're right. Sometimes we have situations where you're looking for a press pass to access something. And usually I think that's a matter not of a First Amendment right of access. Maybe it should be, you say.

But usually it's a matter of statutory right of access, right of access in accordance with, say, police department practices. But let's look at libel law. So let's say we say something on this podcast about a person. We usually don't, we usually talk about ideas more than people. Let's say we say something about a person and that person says we are libeling him.

And some courts had said, well, the press gets special protection from libel law. But ordinary speakers don't get that kind of First Amendment protection, the protections of the actual malice test and the like. So I say the great bulk of courts have said no, have said that people have the same right under the First Amendment.

Whether they're professional members of the institutional press or not to speak. But let's say that we are sued for libel. Under your view, are we members of the press? We are using mass communication technology on a relatively regular basis to inform people, but we're not employees of newspapers.

We're academics. How would your analysis play out with this? I mean, under the proposal that I'm describing, which I think is in fact actually the dominant view, you don't have to answer the question of whether we are members of the press because we're just using mass communication technology.

That means we're protected by the First Amendment fully as much as the New York Times is. But under your view, it sounds like we may need to decide whether we're members of the press. What would you say to that?

>> Floyd Abrams: All I'd say is that for the most part, the fact that the press has received certain protections well beyond that in England, Canada, etc.

Other democratic countries, serves the interest of everyone. And speaking now as a practicing lawyer, some of these cases came out well because it was the press and, and one didn't have to sort of explain or try to persuade judges, you know, why it's such a good thing to have this sort of check on government that, that the press often, but not always, but often provides.

So I don't think that providing more clout to the press clause would be a matter of limiting already existing rights. Yes, New York Times versus Sullivan winds up serving the free press, free speech interest of us all and in a way that it very well may not have had it not been a press entity involved in that case.

So sometimes I think the fact that it's the press is just a good thing in general for the public in terms of helping to establish more protective law relating to call it freedom of expression. But look, I don't think it's an either or situation. Putting some more meaning using the press clause more does not have to mean limiting the rights of others and would probably result in, if anything, some expansion.

>> Eugene Volokh: Well, so let me prove it, if I might, a little bit more. So it sounds like you're saying that when it comes to the rights to which there isn't a physical scarcity. Like right to First Amendment protection in libel cases or intentional infliction of emotional distress cases.

Or maybe even a privilege of news gatherers to refuse to disclose their confidential sources. Something that lower courts have recognized not just as the reporters, but also as the academics, as to advocacy group members and such. That as to those perhaps the freedom of the press plus freedom of speech covers everybody, covers everybody at least who wants to communicate to the public.

But in situations when you need to pick and choose, because there's only so much room at a press conference, let's say. Then the First Amendment would give a right to newspapers and broadcasters and such, but not to just there would be leaf litters and such.

>> Jane Bambauer: Natural scarcity, unavoidable scarcity.

>> Eugene Volokh: But here's my question. In that kind of situation, especially like at a press conference, I don't think the First Amendment would secure a right to journalists generally because there probably are more reporters, more journalists than could fit in many a press conference room. Likewise, when it comes to press conferences in the Oval Office and Air Force One, apparently there are only 13 seats.

So it sounds like the free press clause wouldn't give anyone a constitutional entitlement to access to that. Maybe there'd be a right not to be discriminated based on viewpoint, but that's true for ordinary free speech as well as free press. So maybe the answer is for the press conferences and maybe even for crime scenes, there is no constitutional right of access.

But as a practical matter, for good political reasons and good policy reasons, there will be some statute or there will be some executive branch rule that says we're going to allow people to access. And then you have to pick and choose in any case, preferably on a viewpoint-neutral basis among reporters, something you can do because it's not a constitutional right of access and you might favor people based on size of their audience or what have you.

But it sounds like, at least under my model, you wouldn't have to say the Constitution gives special protection to a particular industry, even in a few situations. Under the model that I'm suggesting, which I think the Supreme Court has endorsed, the Constitution gives equal rights to everyone who is using mass communication technology to speak.

And then of course, the legislature or the executive branch can give extra access in some situations, again, perhaps on a viewpoint neutral basis. What would you say to that kind of explanation of how these various, various rules do and should play out.
>> Floyd Abrams: I think that it's harder even I, by my lights, than even your example.

Harder to have definitions which will answer all these questions easily. And in practice it'll never be exactly the same. If I may give a personal example, in the Pentagon Papers case that I was involved in, in my view, it is only because it was the New York Times that was publishing top secret documents about how we got into the war in Vietnam that that information did not lead to criminal prosecution.

I believe if Daniel Ellsberg or anyone else with access to top secret documents released them during a war, he'd be in jail. So as a practical matter, the fact that the press exists because of its own power and perhaps the support, and in that case at least the support of such a big part of the American public was extremely relevant and helpful to the ultimate recognition of the ultimate result of the case.

Or to put it differently, take back what I said, that Ellsberg would have been arrested, I think he would have been convicted had he just gotten up and started reading from these top secret papers. Now I also happen to think if this were World War II, the New York Times wouldn't have published it.

But if it had, they might have lost the case. So there, I mean, there are other factors that, that are on the ground factors, you know, a popular war, a war of defense, this or that. Those aren't legal, but they have enormous on the ground impact in my view that the, the sort of expansion or recognition at least of more in the way of press rights from the first amendment will on the whole result and a better educated public as well as a freer one.

>> Jane Bambauer: So yeah, that kind of leads naturally to what I was gonna pose to Eugene, which is. I'm glad you mentioned the Brandsburg reporter's privilege. Let's assume it may be. I know people sort of have varying opinions about whether the reporter's privilege as a policy matter, a good idea and whether it should be incorporated into for first amendment protected status.

But let's for a minute, for the sake of argument at least, let's assume that it is a good tool to make sure that reporters can protect their confidential sources. Eugene, I guess if, if neither courts nor congress or any legislature chose to protect, protect those confidential witness relationships in that way, would it bother you if the first amendment weren't there to sort of establish it or, and if, and if you think it's a good idea or you know, if we assume it is a Good idea.

On what basis could we give that privilege to some but not others? Because I do think Floyd's right, that if everybody has that privilege, then there are no state secret. You know, there are no ways to protect state secrets, right?
>> Eugene Volokh: Well, so I think that here we could look to what courts have actually done.

So let's just step back a bit and let me highlight one important point that Jane mentioned. The Supreme Court in Bransburg v Hayes, the majority, 54 majority, seem to say that there is no First Amendment privilege for reporters to refuse to disclose their sources. That reporters are like most of the rest of us, that when we're asked, when we're ordered to testify about information that we are aware of that's relevant to some criminal or civil case, we have to testify.

There are some exceptions provided for generally by statutes or by common law rules for psychotherapists, for lawyers, for clergy, but the reporters don't get them. But there was this concurring opinion that put a spin on the majority opinion that led many lower courts to, despite the majority, say there is a, a news gatherers privilege.

So then the question that came up, well, was, well, who is entitled to it? And the answer was, generally speaking, and I quote, that a person has to have, quote, the intent to disseminate to the public the information obtained through the investigation. That was the test. And whom was it applied to?

It was, of course, applied predominantly to reporters, but also covered would be book authors, people who are not professional members of the press. They're just writing a book, they're hoping at one point to get published. They've got a different day job in the meantime. It's applied to professors doing research for a possible future academic article, applied to a film student and a professor trying to produce a documentary film.

Applied to political candidate, applied to political advocacy groups. It applied, as the courts were saying, to a wide range of people, including ones who are ordinary citizens who may want to eventually become book authors so long as they have the intent to disseminate to the public the information obtained through the investigation.

And whom wouldn't it apply to? Well, let's say you've got some investigation of some business and you want to subpoena one of the employees or one of the officers so that you can give test testimony that incriminates other people. And he says, no, no, no, I'm a journalist.

I was acting in my capacity of a journalist as a journalist. Really, you were gathering information from your fellow business people, from your partners. With the anticipation of publishing into the world at large doesn't seem terribly likely. You don't, you are not entitled to it, not because you're not a member of the press, but because you weren't acting as a news gatherer.

So I do think that is an important distinction. Now, if I might just return, though, to the related question of the Pentagon Papers case that Floyd mentioned. Floyd is, of course, absolutely right that powerful institutions and popular institutions and powerful people are more likely to win when they litigate.

That is the fallen world in which we live. But I don't think it tells us that much about what the rules ought to be. I should also say Daniel Ellsberg might very well have been convicted. As I understand it, he was prosecuted, but the case was thrown out because of prosecutorial misconduct.

But that's because he, as I understand it, was disclosing things that he had promised as a government employee not to disclose. And the law has long recognized the difference between something that, where somebody is breaching his own obligations of confidentiality, and a third party that has gotten this information leaked to it.

In fact, there was a case, Bartnicki Vopper. I won't go into all the details, but there was a leak from someone who gathered information illegally to an intermediary who then passed it along to the broadcaster. And in that case, the Supreme Court said the First Amendment protects the broadcaster and the intermediary equally.

So that may not. It definitely doesn't-

>> Jane Bambauer: As long as they don't induce-

>> Eugene Volokh: Illegal gatherer. Exactly. But if these people are acting at arm's length from them, it is protected. So that's why I think that both the Pentagon Papers case and the journalist privilege cases fit very well with the press's technology example.

And just one other example, imagine that it wasn't the newspaper that was releasing. And imagine it was some government, some legislator, and not protected by the speech or debate clause because it wasn't in Congress or some state legislator. He leaked it to some state legislature. State legislature says, I wanna blow the whistle on this.

Or some academic or some advocacy group. Let's say it was some committee to oppose the Vietnam War. I think they ought to have had exactly the same protection as the New York Times. Even if Floyd is right, that as a practical matter, it certainly helped being a powerful and authoritative institution when you're trying to persuade the court.

>> Jane Bambauer: Well, also maybe part of the. Sorry. Go ahead, Floyd.

>> Floyd Abrams: No, I just wanted to add to that, and it's consistent with a part of what Eugene said. We can't look to law alone to solve these problems or even to address them. Times change, values change, assessments of harm and of benefit change through the years.

And that just comes with the territory. I mean, people have not remarked on it yet. I don't mean in this discussion, but in general. Our last Attorney General established very clear limitations of the Department of Justice with respect to taking steps going to court to try to find out the identity of confidential sources that I don't know if the word regulation, but that that policy of the Attorney General's office is still there in writing.

And all the current new Attorney General has to do is to tear it up or to announce that it is no longer the policy of the United States, that it would not try to find out the identity via the use of the judicial process of confidential sources. That's just part of life.

I mean, it's not even all bad, but it does mean that we just have to not to expect too much from law. As the resolver of some of these rather difficult issues, though, to be fair.
 

>> Eugene Volokh: As to that, Congress could have made it into law. There was a time when Congress and the presidency were both in Democratic hands and that time when now when they're both in Republican hands and neither side was willing to fully do that had it been, had it enacted it as law.

Then in that case we'd be less subject to changes in administration, although of course it would be subject to changes in the composition of Congress.

>> Floyd Abrams: That's true. Isn't it nice where you gray on everything?

>> Eugene Volokh: Exactly. Well, in any event, Jane, anything further?

>> Jane Bambauer: Well, I'm just wondering if I could.

>> Eugene Volokh: Well, there's a lot further. We can keep talking about this for hours, for days.

>> Jane Bambauer: But because I'm a natural, I always like to find as much common, you know, capacious common ground as I can. I'm wondering if what happens under speech protection is not so different from what Floyd wants the press clause to provide.

Anyway. So even taking, you know, looking at the Pentagon Papers case, I think we do all agree that one reason the New York Times was more likely to win than any, than, you know, a sort of non institutional press player is in part because it had a, in part because the Court had to decide in the context, you know, it was deciding whether it made sense to have a prior restraint given the national security interest.

And the Court was effectively doing kind of a balancing test. I know they don't, you know, balancing tests within the First Amendment are avoided as often as possible, but they do occur. And, and in that balancing test you will ask things like does the speaker have a track record or does.

Is there, you know, are there systems in place that might lead the Court to think that an imminent disaster is less likely because of who it is that we're looking at? And, and so I'm just wondering if there are, you know, sort of pressure valve releases within the speech clause anyways that.

Get some of where you want to go, Floyd.

>> Floyd Abrams: Yes, some of the, I mean, the answer is yes, but so dependent on the circumstances and the, the players. I've often looked back on the oral argument of the Supreme Court in the Pentagon Papers case in which Professor Bickel representing the Times, was asked by Justice Stewart, Suppose when we go back to our chambers and we read the Pentagon Papers, we think that it's likely that one young American man, then who had the bad fortune to have a high, high draft number will die as a result of publication.

Are you telling me that in that circumstance, because it's a prior restraint, that the First Amendment must carry the day and I should vote, so to speak, to let that person die? And there was sort of intake of breaths in the courtroom and Bickle, to his great credit, in my view, and I think we would have lost the case if he had argued otherwise, said no, I'm not saying that, if that's what you find in effect, you can enter your prior restraint, but it's got to be that in effect, nothing less.

The next day, the American Civil Liberties Union filed a post argument brief in a case to which they were not even a party, denouncing Bickle's answer and saying that he was selling out the First Amendment by saying that. My view, as I've just said at the time and thereafter, it was an essential answer regardless of the words we had used about prior restraints.

I mean, we never said it was absolute, but obviously we were arguing it was as absolute as would at least allow us to win this case.

>> Eugene Volokh: Very interesting story, Floyd. Always a great pleasure to talk to you about this or about any other topic.

>> Floyd Abrams: Right, it's good to see you all.

>> Eugene Volokh: Thank you so much for joining us.

>> Floyd Abrams: Sure.

>> Eugene Volokh: And look, look forward to. I was about to say I look forward to seeing the rest of the audience, but we don't really look forward-

>> Jane Bambauer: We don't even hear them.

>> Eugene Volokh: Right. Look forward to, certainly to seeing you, Jane.

And look forward to the next Free Speech Unmuted podcast, which should be coming in a few weeks.

>> Presenter: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work, or to listen to more of our podcasts or watch our videos, please visit hoover.org.