by Ronald K.L. Collins. Durham, North Carolina: Carolina Academic Press, 2013. 260 pp. Jacketed hardback $27.00. ISBN: 978-1-61163-246-0.
Reviewed by Wayne Batchis, Department of Political Science and International Relations, University of Delaware. Email: batchisw[at] udel.edu
Law professor Ronald K.L. Collins has assembled a fascinating little book about a larger-than-life advocate: the American legal icon Floyd Abrams. While some might question whether the diminutive size of this volume befits Collins’ topic, the ultimate result is a satisfying and thought-provoking jaunt through the career of a modern First Amendment trailblazer, one that avoids the biographical heft that might have made this book – for both reader and author – a formidable endeavor. This is because Nuanced Absolutism: Floyd Abrams & the First Amendment rarely diverges from its narrowly circumscribed goal, unpacking Abrams’ intellectual, philosophical and doctrinal approach to the First Amendment.
Although it covers much territory that is bound to be familiar to scholars of law and politics – well-worn debates over First Amendment theory by the likes of Bickel, Black, Meiklejohn and Bork among others – Collins illuminates his topic in a fresh light. Indeed, as Collins repeatedly points out, it is rare for a scholar to approach this rich subject from the perspective, not of a judge or academic, but from that of an advocate. It is under this premise – that the role of the attorney in our most consequential and weighty debates over the meaning of the Constitution has too often been lost, or even worse, willfully ignored – that Collins proceeds to explicate the nuanced First Amendment absolutism of Floyd Abrams.
Collins takes care to situate Abrams’ ‘nuanced absolutism’ in the uncomfortable space between the pragmatic conservatism of Abrams’ former constitutional law professor at Yale, Alexander Bickel, and the blunt absolutism of Supreme Court Justice Hugo Black. Advocates, of course, enjoy neither the luxury of approaching heady constitutional questions from the detached theoretical plateau of preeminent legal scholars nor from the powerful vantage point of doggedly independent high court justices. An advocate must win; and to do so, an advocate must both engage with, and be subservient to, the facts on the ground. This is true, even for a cause-lawyer like Floyd Abrams.
It is this truth, and the insights that result, that makes Collins’ case study such a worthwhile read. Indeed, one might leave Collins’ book with the distinct sense that scholars of law and politics, by largely overlooking the influence of First Amendment advocates, have taken a profoundly wrong turn. He laments that attorney “contributions to First Amendment law are frequently ignored. While lawyers and law students may know of Mr. Abrams and his reputation in the law, very few know the true depth of his contribution to it” (p.193). Collins chides legal academia, complaining that “[i]ncredibly, we teach law students to think like judges and not as practicing lawyers” (p.193).
However, it would be a mistake to boil down Collins’ thesis – based on these words from its final few pages – to a mere reiteration of the common criticism that law schools focus on too much on academic theory while neglecting practical lawyering skills. Such a description would shortchange what Collins truly seeks to achieve with Nuanced Absolutism. Collins is deeply passionate about constitutional theory; Abrams represents a kind of a bridge between the theoretical and the concrete, what Collins describes as “that realm between the judicial and the popular” (p.193). This is a study of the rarely acknowledged interdependence between practical lawyering and the dynamic theoretical contours of constitutional law.
Nuanced absolutism, as Collins defines it, adheres at its core to a zealous belief in centrality of free expression, not unlike the “religious-like passion” possessed by the pure absolutist Hugo Black (pp.53-54). However, it is tempered by a consideration of “the countervailing needs of society” (p.36). Nuanced absolutism willingly embraces the fact that risk is inherent in the founders’ conception of expressive freedom. However, while most of those risks are costs that must justifiably be borne as a price of freedom, certain risks are intolerable.
To Abrams, this does not mean that the entire interpretive enterprise must degenerate into an exercise of case-by-case balancing. Indeed, under nuanced absolutism, many contexts demand absolute, or nearly absolute, First Amendment protection. Throughout his career, Abrams has emphasized those settings in which absolutism is already largely in place. Collins invites us to consider recent cases such as United States v. Stevens (2010), Brown v. Entertainment Merchants Association (2011) and Snyder v. Phelps (2011), in which the Court adhered to what appeared to be a sharp categorical absolutism. Repugnance and policy arguments aside, the Court unequivocally declared that depictions of animal cruelty, violence in video games, and offensive funeral protests, quite simply do not fall within the few discrete low-value-speech categories previously defined.
A common popular critique of these cases is that they represent a form of amoral relativism. If we as a society are not willing utilize some form of balancing so we can, for example, put a stop the abhorrent protests in Snyder, we are effectively giving up our humanity. But Abrams by no means suggests that we must give up “hating” the “thought that we hate” in order to maintain our fidelity to First Amendment principles. Quite the contrary. Collins provides a number of examples in which Abrams artfully navigates repugnance and freedom.
Collins tells us of Abrams’ unremitting scorn for Julian Assange, infamous for his WikiLeaks internet dump of reams of sensitive government information. Liberals were shocked, just shocked, that Abrams would publish a harsh rebuke of Assange in an op-ed in the Wall Street Journal. Collins notes in a footnote that one commentator went as far as to facetiously opine that the piece may have been penned by an imposter attempting to steal Abrams’ identity (p.158). How was it that this gladiator for the First Amendment, this champion for the people and their right to hear the truth about their government, could himself have such harsh words for Assange?
In the absence of ‘nuance,’ it is all too predictable that views of the WikiLeaks scandal would tend to adopt an ‘either you’re with him, or against him (and against free speech)’ tenor. Indeed, those of us who teach First Amendment law are no doubt familiar with the unfortunate tendency of students to conflate free speech advocacy with an endorsement of the particular ideas espoused. Collins shows us how Abrams, as a respected public face of First Amendment lawyering, takes his larger case for nuanced absolutism to the people – helping make palatable arguments that may appear counter-intuitive to the layperson.
Abrams emphasizes the important distinction between rights and responsibilities. To say that the press should be free is not to say that we should not condemn its recklessness where recklessness is apparent. But under a regime of nuanced absolutism, even recklessness “to the point of being dangerous” does not deprive one of First Amendment protection (p.158). This is not to say there are no limits for Abrams. Abrams concedes that criminal acts – for example, breaking and entering to obtain documents or stealing intellectual property – should be prosecuted as such (pp.149-152).
Collins describes in vivid detail the many venues in which Abrams has contributed to America’s First Amendment discussion. We see how in 1980, Abrams utilized nuanced absolutism in a lively exchange with Senate’s Select Committee on Intelligence. The effect was ultimately to temper speech-inhibiting legislation intended to better shield the identity of undercover CIA officers and thus enhance their safety and effectiveness. Avoiding the posture of a rigid absolutist, Abrams drew attention to an important First Amendment distinction between identity disclosure by agents or former agents and publication of such information by third parties. He acknowledged the vital national security interests at stake and conceded that criminalizing the former – but not the latter – may be “constitutionally defensible” (p.125).
Nuanced Absolutism: Floyd Abrams & the First Amendment would make excellent supplemental reading for an advanced undergraduate course on the First Amendment or a graduate course in constitutional theory. It seamlessly blends legal biography with a valuable overview of the familiar tensions and jurisprudential positions that mark the study of First Amendment law. If I were to offer one criticism, it would be that – in the tradition of legal scholarship – many of the most fascinating nuggets of information lie hidden in the extensive footnotes that at times eclipse the adjoining content. Students should be advised to resist the temptation to pass over these footnotes.
In sum, Ronald K.L. Collins has produced an accessible portrait of a colorful and influential free speech advocate that brings life to theory and theory to life. It is an excellent addition to the wealth of literature on the dynamic First Amendment.
Brown v. Entertainment Merchants Association 564 U.S. ___ 131 S.Ct. 2729 (2011)
Snyder v. Phelps 562 U.S. ___; 131 S.Ct. 1207 (2011).
United States v. Stevens 559 U.S. ___, 130 S.Ct. 1577 (2010).
Copyright 2013 by the Author, Wayne Batchis.