Liberty and Technology

Salem Solomon
Feb 24, 2015 · 4 min read

The opening of the book, “Speaking Freely: Trials of the First Amendment” by Floyd Abrams, deals with a legal challenge undertaken by the author representing the New York Times along with the legal counsels for several other major newspapers and television networks. The case came in the wake of the Pentagon Papers where, in the late 1960’s, Daniel Ellsberg a researcher, former Marine and consultant to the U.S. Department of Defense, leaked a 7,000-page Top Secret document to the New York Times. The report came to be known as the Pentagon Papers and investigated the history and events leading up to America’s involvement in Vietnam.

The Times struggled with the decision to publish portions of the papers, but its editorial staff believed it to be necessary since the American people had been lied to so often during the war, Abrams wrote.

In the legal case, the news outlets wanted to grant journalists first amendment protection regarding their sources. The case went before the Supreme Court where Abrams and others argued that journalists should be able to give their sources the same promise of confidentiality that attorneys give their clients. They argued this was an essential aspect to the Freedom of the Press protected in the First Amendment. In a friend of the court brief, Alexander Bickel wrote that “in order to safeguard a public right to receive information it is necessary to safeguard a reporter’s right to withhold information.”

In 1971 in the New York Times Co. v. The United States, the legal team argued that “prior restraint” of publishing a document or news story had been rejected in other cases dating back more than 60 years. The government had sought to halt the publication of additional extracts of the papers, but in a 6–3 decision the Supreme Court voted to allow the publication to go forward and set precedent for a heavy burden for “prior restraint” and affirmed the importance of the freedom of the press particularly to educate the public on the circumstances surrounding foreign invasions. Justice Hugo Black wrote for the majority saying “paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

In 1975 Abrams was hired by the newspaper the Virginia Pilot which had been indicted by the Commonwealth of Virginia for publishing a story about a closed inquiry into the competence of the judge. Abrams said his argument was simple: the paper printed the truth and the information about the hearing was legally obtained.

The Supreme Court ruled unanimously in the paper’s favor in the case Landmark Communications v. Virginia finding the issue lays near the “core” of the First Amendment.

In the 1980’s, Abrams was hired by NBC news in a case relating to a story the network reported regarding Las Vegas singer Wayne Newton and an enforcer to the Gambino mafia family named Frank Piccolo. Piccolo allegedly did a favor for Newton by stopping threats from a jilted former business partner who wanted to extract money from Newton relating to an investment in a tabloid news magazine. But, in return, Piccolo tried to extort Newton and the case resulted in a federal investigation. Newton sued NBC for libel relating primarily to a 12-minute piece it ran on the national nightly news entitled “Wayne Newton and the Law.” Newton believed the piece falsely implied that he acted on behalf of organized crime as a part owner of the Aladdin Hotel in Las Vegas.

A Nevada jury found in favor of Newton and awarded him $22,757,273.80. Many observers believed he received “hometown” celebrity treatment from star struck jurors. Later, in an appeal before the 9th Circuit, Abrams argued that there was no evidence that any statement in the story was untrue and a libel award based on the “implication” of a news story about a public figure was an extremely dangerous precedent to set. In 1990, the court ruled unanimously reversing the original award. The court found that NBC could only be guilty of libel if it realized its broadcast was false or “subjectively entertained serious doubt as to the truth.”

Abrams also defended ABC in a libel suit brought by Victor Lasky, a right-wing journalist and an interview subject in a news piece about the Communist accusations of Sen. Joseph McCarthy, R-Wisconsin, in 1951. The network later issued an apology that its piece insinuated Lasky called an art teach, Luella Mundel, a Communist.

The case went to trial in 1988. The case was difficult since there were no transcripts of McCarthy’s Un-American Activities Committee and it came down to differing recollections of whether Lasky had actually called Mundel a “Communist” or “Fellow Traveller.” Lasky insisted that he had never done anything of the kind to anyone at that time who wasn’t guilty. However, Abrams uncovered other cases relating to Hollywood actors and writers who claimed Lasky tried to intimidate them into signing confessions that they were Communists. This evidence swung the trial in ABC’s favor and the jury found that they had not committed libel.

The book is immensely readable and it is amazing how many of the benchmark First Amendment cases Abrams has been involved in. However, the pages of courtroom testimony and the minutiae that he recounts relating to back and forth legal wrangling can be a bit dry at times. Overall, however, it is a worthwhile read and it is particularly inspiring for a young journalist to see the great lengths and great sacrifices that have been made to protect our right to practice our chosen profession.

Salem Solomon is a journalist, graduate student and a teaching assistant at the University of South Florida St. Petersburg. She is currently based in Washington D.C., working on her professional practicum at Voice of America’s Horn of Africa Service. Twitter: @salem_solomon

    Salem Solomon

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