Noted First Amendment attorney Floyd Abrams takes liberals and conservatives alike to task for what he considers their fair weather friendship of speech protections, including conservatives who he says have done an about-face on the so-called fairness doctrine.
In an opinion paper for think tank The Media Institute and the Thomas Jefferson Center to be published Tuesday, Abrams, a partner in Cahill, Gordon & Reindel, cited both sides of the political spectrum for supporting speech protections when it serves their interests or depending on whose ox was being gored.
For example, Abrams, who famously defended The New York Times in its publication of the Pentagon Papers, said that for years he had defended one television network from complaints that it had violated the fairness doctrine, many filed by the conservative group Accuracy in Media.
"When a documentary focused on problems with pension plans..." he writes, "AIM maintained that not enough satisfied pensioners had been shown. When another one discussed sex education in schools, AIM claimed that not enough criticism of such efforts had been broadcast."
Other conservatives, he argued, even followed the airing of a prize-winning documentary on hunger with a demand that the agency require interviews with speakers arguing there was plenty of food in the country.
Abrams cites the suggestions lately by some on the left that the doctrine--which required broadcasters to seek out opposing viewpoints on issues of public importance and which the FCC scrapped as unconstitutional in 1987--should be reinstated. Its abolition is generally associated with the rise of opinionated conservative talk radio.
"A prime motivation appears to be liberal angst at the impact of right-wing talk-radio commentators such as Rush Limbaugh and Sean Hannity," he notes. But while Abrams says he has problems with what seems to him their often hateful and degrading speech, he adds, "protected they are—and should be—by the First Amendment. Those millions of people who listen to them should not be deprived of their opportunity to hear them in undiluted form."
Abrams also has plenty of ammunition for the First Amendment's "fleeting friends" on the left as well. How will President Barack Obama's success in raising money and his refusal to forego that haul in favor of public funding affect the left's support of campaign finance reform, for example.
"For years, the view from the left had been that money was not 'speech' and thus not worthy of serious First Amendment protection in the campaign finance area," he says. "Moreover, it was felt that honorable and worthy presidential candidates should forego private contributions altogether and accept whatever sum federal law authorized."
The new president's ability to raise so much from so many may be a victory for "small d" democratic principles as well as Democratic political fortunes, suggests Abrams. "But the notion that campaign contributions are anything but potentially corrupting has never found favor on the left before," he says. "It will be interesting to see if it does now."
Abrams, whose clients have included The New York Times, ABC, NBC, CBS, CNN, and Time, is a member of the Media Institute's First Amendment Advisory Council.