MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The First Amendment guarantee of free speech is considered the crown jewel of our constitution. For more than 50 years, attorney Floyd Abrams has litigated some of the nation's most high-profile First Amendment cases.

MS. DIANE REHMIn a new collection of his life's work, Abrams writes about his role in the Pentagon Papers, what he thinks about WikiLeaks and his controversial stance in the Citizens United case. His book is titled "Friend Of The Court: On The Front Lines With The First Amendment."

MS. DIANE REHMFloyd Abrams joins me in the studio. You are welcome to join us, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. It's good to see you, sir.

MR. FLOYD ABRAMSThank you, good to be here.

REHMSo wonderful after all these years to have you here in the studio again. It would seem that this issue of the conflict between national security and First Amendment freedoms is a recurring one, right?

ABRAMSAbsolutely.

REHMRight now.

ABRAMSRight now, I mean, it's recurring through American history, but really it would be hard to pick a time in which it was more relevant to more issues arising more often than right now.

REHMDo you think that 9/11 has made it even more so?

ABRAMSYes, in a few ways. One is 9/11 made very clear the magnitude of the danger that exists to us. At the same time, some of the reactions to 9/11 have made it all the more important that First Amendment rights and other constitutional rights be preserved and protected.

REHMI think there are a great many people who want to ask you about your decision and your defense of Citizens United. Here's something posted on our website from Patty. I'm not going to read the whole thing, but she says: "After Citizens United, someone like me who lives on limited income feels my speech is diminished. My $25 contributions seem almost worthless."

ABRAMSLook, I think we have a real problem and a continuing problem of equalization of wealth and equality of power in America. We've had it a long time and we continue to have it. I don't think the way to address it is by limiting speech of people who have money or corporations or unions or the like.

ABRAMSMy view is you deal with economic problems in economic ways or legislative ways. Corporations have too much power. You can pass laws. You can tax them more. You can have more enforcement of anti-trust laws. You can do a lot of things.

ABRAMSAnd one thing that is very important to do is to have more disclosure of who is giving money and the Citizens United case is onboard for that. I mean, there was an eight to one vote there upholding the disclosure requirements in the Citizens United case.

ABRAMSAs I view Citizens United, in the first instance it's about -- on the facts of the case, it's about the right of a conservative political organization to put on a documentary blasting, trying to pulverize then Senator Hillary Clinton when she was the leading Democratic candidate for president.

ABRAMSUnder the laws that then existed, that film, that documentary and a very biased one it was, could not appear on television or on cable or on satellite within 60 days of an election or 30 days of a primary. I thought that was unconstitutional.

ABRAMSI think the idea of saying that it's a crime to put on a documentary whatever one thinks of it, attacking a candidate for president must violate the First Amendment and my reasoning goes from there. So I think Citizens United is a good pro-First Amendment decision and I think there are other things we can do to deal with the genuine feelings of Patty about the fact that her $25 seems to buy less in the way of communications now.

REHMWhat kinds of reactions did you get after you successfully argued that case?

ABRAMSFrom my friends, unremittingly hostile, I grew to have a new bunch of friends, temporary, political alliances on the right, but...

REHMPeople were surprised that you...

ABRAMSYeah.

REHM...took that case.

ABRAMSRight, see, I think -- I want to put it very candidly. I'm very surprised that so many of my liberal friends are willing to sacrifice First Amendment interests...

REHMAnd that's how you saw it?

ABRAMS...for their political liberalism and that's what I think they're doing. I think that they are, for the first time maybe in their lives, diminishing their support for the First Amendment because of who is asserting it.

REHMDid you foresee that 501C4s, which could indeed hide the identity of individuals who contributed, did you foresee that as an outcome in the ruling?

ABRAMSI don't believe that the ruling did cause on any real meaning of causation what we see now of the 501C4s. The 501C4s can do what they do because there is no legal obligation for them to reveal their sources of income. Congress can do that. Congress did it in the McCain Feingold law.

ABRAMSI mean, that's why what we call superPACs are ones that we know who gives money. That's why we know how much money Mr. Adelson gave. That's why we know everything about the contributions or the expenditures made as a direct result of Citizens United.

ABRAMSSo, you know my answer is Congress is at fault for not having an across-the-board requirement of more disclosure and that's where I think the fault lies not with the decision which said disclosure is constitutional. Required disclosure is constitutional. Only Clarence Thomas, only one member of the court voted against that proposition. All the others said not only that disclosure is constitutional but that disclosure serves in a way First Amendment interests by informing the public.

REHMBut then those 501C4s referring to the Citizens United decision were able because Congress did not do the work you said it should have done. Doesn't it though go back to Citizens United?

ABRAMSI'm afraid I think it goes back to the First Amendment, that where we go is the proposition that, you know, we don't allow the government to tell people or organizations how much they can say or what they can say about who to vote for.

REHMWhat do you say to Patty who does talk about her $25 contribution and the voice that the impact, that that has versus the corporate voice and the intent of lobbyists with, and corporations with a great deal of money and the voice they have?

ABRAMSI say really what I said earlier that we've got a problem and it's a growing problem in terms of people with more money making more money and other people making less and having less say, true less say in everything including the government. And I say the answer to that has got to be a political answer not one which limits what would otherwise be First Amendment rights.

ABRAMSI mean, it's got to be some sort of effective movement to empower the Pattys of the world without limiting speech. Speech is the last thing we should be limiting. I was in Ohio in the last week of the last campaign and I understand that the folks in Ohio were sick of the ads. For me, it was a First Amendment paradise. I turned on television, all there are, are political ads. Well, political ads are good, not bad from a First Amendment perspective.

ABRAMSMore speech about who to vote for is a good thing not a bad thing and to the extent that Citizens United has contributed, no pun intended, to that I think it's a good thing. But look, in all candor, I would be in favor of the decision even if I thought the results of the decision were worse because I think that the heart of the First Amendment is the protection of political speech.

REHMFloyd Abrams, his new book is "Friend Of The Court: On The Front Lines With The First Amendment," and when we come back, I see the lines are filled. We'll talk more and take your calls. Stay with us.

REHMThe First Amendment of our Constitution is often referred to as the crowned jewel. And one of the most outspoken defenders of that First Amendment is here with me this morning, Floyd Abrams. He is a senior partner at Cahill, Gordon and Reindel. He is the author of a brand new book titled "Friend of the Court: On the Front Lines With the First Amendment." Floyd Abrams, remind us of how this amendment became such an important one to our nation.

ABRAMSWell, in a sense it was important from the start. The Constitution, of course, didn't have a Bill of Rights when it was initially drafted. But Thomas Jefferson in Paris as our first ambassador said he wouldn't support it without a Bill of Rights, that the public was entitled to it as a protection, he said, against the government. And the heart of what he was talking about was the First Amendment, protection, freedom of speech, freedom of religion, freedom of association and the like.

ABRAMSAnd when people like Hamilton responded saying, whoever said we could take it away. Well, why do we need an amendment saying congress can't pass a law? We never said congress could pass a law. Jefferson's answer was, say it. You've got to say it. You've got to be clear that this is something that cannot be tampered with.

ABRAMSAnd through our history, well, we've had ups and downs and we've certainly had times when freedom of speech was under enormous pressure, including at the very beginning under John Adams with the alien and sedition law. McCarthy is in later on. There are lots of rough times. I think that in the last 30 or 40 years we've made enormous progress in terms of taking an expansive view of the First Amendment, a very protective view of unpopular speech for example, of a minority speech.

ABRAMSI mean, we are viewed in the world sometimes as sort of kooky because we allow so much speech. We're the only country that allows hate speech -- protects hate speech. When President Carter signed a treaty -- international treaty on civil rights which called on countries to take steps to ban hate speech, he signed it and he had attachments called a reservation saying, but of course all this is subject to the American Constitution. Which means there are some things we just won't touch. And the reason -- the core reason is a distrust of the government as an entity which can control or direct or prohibit or punish speech.

REHMRemind us of exactly what the First Amendment says.

ABRAMSFirst Amendment says, Congress shall make no law abridging the freedom of speech or of the press. And as you'd expect, the Supreme Court has spent many years discussing, arguing, debating what abridging means, what the -- quote "the" freedom of speech means and the like. But whatever the arguments it's phrased very broadly and it is interpreted very broadly.

REHMAnd here is our first Tweet from Michael who says, "While Citizens United might technically be a valid First Amendment law, it certainly violates the spirit of one person, one vote." How do you respond to that?

ABRAMSThere's an inevitable tension between different parts of the Constitution and different social values. And we see it in Michael's very good question. The example I would cite, only as an example, is what was at issue in Citizens United itself. A group called Citizens United that was partially funded by corporate money that wanted to put a documentary on criticizing a candidate for the presidency.

ABRAMSNow, in my view that is so clearly forbidden by the First Amendment that at least as it regards that entity, I could frankly never understand how my liberal friends could think that that could be banned, and how there were four members of the Supreme Court who signed on to the proposition that that could be criminal. Not me.

REHMYour chapter on Catharine MacKinnon is one titled "The First Amendment Under Fire from the Left." Tell us about Catharine MacKinnon and what happened there.

ABRAMSWell, Professor Catharine MacKinnon is one of the great scholars of what is women's rights in America, one of the people who's made change, affected the law in that area. And back sometime in the mid '80s the New York Times asked Catharine MacKinnon and myself to engage in a debate about the First Amendment chaired by the great Pulitzer Prize-winning journalist Anthony Lewis. And the Times picked that title for it and ran it.

ABRAMSIt was a time when there were a lot of speech codes on campuses in which a lot of campuses were saying that you could be expelled for saying discomforting things about, among other women, and in which there was an ongoing debate, much more than right now about just how much quote "freedom of speech" unquote there should be on campus.

REHMAnd the issue became also the question of whether pornography could be curved.

ABRAMSYes, and in particular because Professor McKinnon had drafted a statute which Indiana adopted, allowing for a legal claim to be made against groups or publishers of material, which could be called pornographic. And the court of appeals for the 7th circuit, which includes Illinois, Indiana and the like, said that it was unconstitutional that that sort of approach would allow a claim to be made with respect to some of the greatest works of literature in our history, that we can't put Ulysses in the doc.

ABRAMSWe can't put serious literature in the doc because it could be said to support the subordination of women because the message of the book could be said to be so offensive that we ought not to allow it. And that court said -- and I agreed -- that we don't deal with bad thoughts by banning books or by allowing damages to be imposed because books or articles or the like were published.

ABRAMSWe do have a ban on obscenity but we define it very narrowly. Anyone walking down the street can conceive that which is allowed in this country, including some very unsavory and disagreeable materials. You know, that's the direction that the First Amendment has taken us, even as interpreted by some pretty conservative members of the court.

ABRAMSAnd we allow violence in films, for example. And if congress were to pass some sort of law about that, I mean, the Quentin Tarantino's Academy Award -- he won the Academy Award for this terribly violent film just last year. We protect that. And let me say, I understand we pay a price for doing that. I mean, individuals who are the victims of very harsh things said about them pay a price. Our liable law, we have but it is less protective of individuals who have been falsely accused of various things than that in England say.

ABRAMSWe do it because we are most concerned than they are about chilling speech, about allowing juries or judges to step into the role of being sort of quasi censors. And in one area after another we don't have absolute protection of speech, I mean, hardly ever but we get pretty close to it sometimes. We make it so hard for someone to win some sorts of cases that effectively we have an almost anything goes policy.

ABRAMSFor example, in America a newspaper can publish an editorial, criticizing a judge, saying the judge is incompetent, saying the judge ought to sentence someone to life imprisonment, that the judge ought to throw the book at so-and-so. In England that's a contempt of court. You go to jail. People really go to jail. It's a democratic society. We don't have the only way to run a democratic society. But our way has come to be one of protecting free speech and free press and the like and other sorts of communication in a way which generally keeps the government away.

REHMAll right. Now I'd like to ask you about the young man who has been in the front pages of the newspapers, an employee of Booz Allen, not a government employee, though the government has contracted with Booz Allen for the type of work this young man was doing, releasing to the Guardian newspaper and to the Washington Post secrets about information gathering by the U.S. government. What is your reaction to his actions? Is he acting out of free speech? Should he be prosecuted? Would you take his case if he were?

ABRAMSLook, based on what I've heard so far, he does seem more in the whistle-blower mode than anyone doing anything just to profit or benefit himself or help a foreign country or anything like that. He is in enormous legal difficulties, there's no doubt of that. And I would not be surprised if the government can get him back in this country if he were charged with various violations of the Espionage Act for his conduct.

ABRAMSNow my view is that some of the revelations, particularly of the NSA collecting information about telephone calls made by all of us in this country to each other, not the text, not the voices, not the content, but the telephone numbers of who calls who, how long they spoke and basically where they are, because they have the area code, I think that is a very, very serious, even dangerous risk to the Fourth Amendment, the right to be free of unreasonable search and seizure, and in a sense to the First Amendment as well.

ABRAMSI don't disagree with the president at all on the proposition that you can't have 100 percent security and you can't have 100 percent privacy. And it's very hard for an outsider to pass on the national security side of the equation, how much this helps us, if it does. And in what circumstances it helps us. What I can say is that I think that allowing any branch of the government to have that sort of information about telephone calls made by all of us is a significant incursion into personal privacy.

REHMAnd you're listening to "The Diane Rehm Show." One last question on that before we open the phones. If that young man were to come to Floyd Abrams and ask Floyd Abrams to defend him on a pro bono basis, what would Floyd Abrams say?

ABRAMSWell, I hope my partners are not listening. I guess the first thing I'd say is he really needs a criminal lawyer. I mean, he really -- he's in terrible trouble...

REHMHe really is.

ABRAMS...in terms of the criminal law. And he really needs...

REHMWhy is he in trouble in terms of criminal law?

ABRAMSWell, he's in trouble because he promised not to reveal classified information.

REHMWhen he signed up with Booz Allen.

ABRAMSWell, he signed -- or even if there was no signature, the court -- the Supreme Court has said that the government has the power when they have secret information like this to impose limits on what someone can say. But...

REHMEven if it's a contractual thing between the government and Booz Allen.

ABRAMSRight. But it's not just a contract. A contract, they could go after whatever money he makes or...

REHMProbably not very much.

ABRAMS...but probably not very much. But we have an espionage law, very poorly drafted, from 1918...

REHMBut wouldn't he have to be spying for someone...

ABRAMSNo, you don't have to. As we just saw with Bradley Manning...

REHMThe same case.

ABRAMS...Private Manning pled guilty -- he was well advised to -- to charges of misuse of classified information. He could get 20 years for that. Now he's on trial for something worse than that now. They charged that their proceeding against him is basically of trying or in effect being a part of helping an enemy of the United States. The theory being that by releasing the information, he must've...

REHM...to WikiLeaks.

ABRAMS...to WikiLeaks, that he must've known that al-Qaida or other enemies could or would obtain the information.

REHMBut that's very different from what the young man at Booz Allen did.

ABRAMSYes, it's different in some ways, but it's similar in some ways. The man at Booz Allen released top secret information about a previously undisclosed activity of the highest security nature.

REHMFloyd Abrams, "Friend of the Court: On the Front Lines With the First Amendment." Short break, we'll be right back.

REHMAnd if you've just joined us, Floyd Abrams is with me. He's a leading attorney in First Amendment issues. His new book is titled, "Friend of the Court: On the Front Lines with the First Amendment," in which he talks about many of the cases in which he has been involved. I’m going to read you a tweet, Floyd Abrams, from Mark. He says, "How is money speech and does the First Amendment protect deceptive and outright untrue political ads?"

ABRAMSFirst of all I don't think money is speech, but without money speech can't be decimated, in most situations, to the public. So it facilitates and in some cases it's essential for speech to be heard. I think the second part of the question is really, really interesting, and is not yet decided. Most First Amendment scholars, I think, would say that it's very dangerous to allow the government or the courts even or juries even to pass judgment on what's deceptive and what's not deceptive in the political realm. The nature of politics is such, that we shouldn't want limitations on speech about who to vote for based on a judgment as to what's deceptive or not.

ABRAMSNow, it's true that a candidate could bring a libel case, if the candidate is lied about in a campaign. The culture of this country has developed in a different direction. In England the Queen brings libel suits, the Prime Minister goes to court and sues. Here it would be unthinkable for President Obama, whatever they say about him, to go to court. And candidates generally don't. For one thing because we have built in so many protections for speakers that it's very hard to win if you're a public official and you bring a lawsuit. You basically have to prove not just that what was said wasn't true, but that the person that said it knew it wasn't true or suspected that it wasn't true.

ABRAMSMy own view, is that while we pay a price -- and we do -- for having speech about political matters that is not just sort of badly thought out, foolish, or the like, but just wrong on the facts, that we don't want courts deciding that. The last part of this program in which people spoke about global warming, seems to me an example. If a candidate got up and said things, such as one of the speakers did, basically denying that global warming has all the bad effects that the other people on the panel thought, I wouldn't want a court deciding that. I just think that's for Congress, that's for the people and so with political speech.

ABRAMSI think it ought to be uninhibited. And basically off limits, but as is always the case with the First Amendment, we pay a price for it. I mean the price is people can say and then say 20 dozen times, something that just isn't so.

REHMAll right. And now let's go to Elkhart, Ind., and to Craig. Good morning to you, sir.

CRAIGYes, Diane. Thank you very much for your show. I consider you a national treasure.

REHMThank you so much, sir.

CRAIGMr. Abrams already said something about whistle-blowers and I believe that this could set a suing precedent for people who do find a reason to blow a whistle. If Senator Feinstein and Speaker Boehner, who seem to be able to compromise on the same idea of traitorship or seditious acts, I believe that he is correct. I've been reading Joseph Stiglitz's, "The Price of Inequality," and Mr. Abrams and Mr. Stiglitz seem to agree that the Congress is to blame for much of this. And I'd just like to hear his thought.

REHMAnd you're really regarding Citizens United. Floyd Abrams?

ABRAMSWell, first on the whistle-blowers point, we do have a prescribe way for a whistle-blower to file a complaint, and Mr. Snowden didn't do that. He went public. As I said earlier, I find it hard not to respect him for what appears to be his genuinely held views about what he came to learn and what seems like his willingness to pay the price for expressing them. The latter may not be true. I mean if he does what Mr. Assange does and goes to the Ecuadorian Embassy or something, that's no longer civil disobedience. But the notion of civil disobedience is, you know, saying something that's against the law and being willing to pay the price for it because of the principle of saying it.

ABRAMSIn terms of Professor Stiglitz, he does indeed argue that Congress is the entity to which we're supposed to turn for the resolution of issues, such as economic inequality, and he's right.

REHMAll right. To Dallas, Texas. Good morning, Susan.

SUSANHi, to both of you.

REHMHi.

SUSANI just wanted to say I'm an active, passionate volunteer voter registrar and League of Women Voters member. And the real outcome that Citizens United decision and the barrage of negative ads have had is the disenfranchisement of young and first-time voters. So if you look at these stakeholders, whose lives will probably be most affected, for the longest time anyway, and who feel, generally, that their vote doesn't matter, I respectfully would not want to bear the burden of this outcome from that decision. And I wonder how he does, knowing that this is accurate information.

ABRAMSWell, first I really don't view what you described as disenfranchisement at all. What you're saying is people have decided, chosen, not to vote. And I would hope -- I'm sure that you do your best to persuade them…

REHMIndeed.

ABRAMS…to vote. Negative ads are not the result of Citizens United. Surely we've had negative ads throughout our history and in very recent years, before Citizens United. And negative ads are an important part of American politics. I mean there's nothing wrong and certainly the First Amendment protects advertisements saying don't vote for so and so, don't trust so and so, get rid of President Obama, it's time for a change. I mean it is, in my view, inconsistent with really a core notion of the First Amendment, but also of American political history to treat negative ads as if they're off limits or they ought to be off limits in some way.

ABRAMSI think they're part of the system. They play a role. Sometimes they help candidates, sometimes they don't. That's up to the public.

REHMHere's an email from Steve in Michigan, who says, "Today's guest says Jefferson got it right in framing the First Amendment and the Citizens United decision was correct, but at the time of its enactment, free speech was largely restricted to speaking at a town hall meeting, preaching from a soap box or issuing a primitive newspaper. There was no TV, radio or internet in the 1780s. The First Amendment should not give the overly rich the right to flood the airwaves and internet with so much political rhetoric that it drowns out ordinary citizens."

ABRAMSI don't know what Jefferson would think about…

REHMYeah, that's a good question, yeah.

ABRAMS…the development of new forms of communication, but I think he would think that we can't have the government limiting speech, whatever the form of communication. And that's the basis of my views, as well.

REHMNow, when you have a corporation that is deemed to have the same rights as an individual person, in your mind, what are the similarities between personhood and a corporation?

ABRAMSIn my view, the First Amendment protects speech, not speakers. And we don't distinguish, in general, based on who's speaking in terms of the First Amendment rights. I mean, I've spent most of my life representing corporations that I suspect most of your listeners and participants in this conversation would think deserve First Amendment, newspaper, broadcasters, museums. I don't know, but I would find it hard to believe that where I'm sitting now is not paid for by a corporation. Most entities that engage in public speaking or advocacy take corporate form.

ABRAMSNow, most of them that we think of are, quote, the press. Again, newspapers, broadcasters and the like, they're corporations. So we really shouldn't, I think, start down the road of saying that because a corporation is doing the speaking that therefore, you know, we really have got to be careful about allowing it. That would sweep in all the corporations. And if you want to try to limit it to certain types of corporations, then I think that's another problem of its own. So from my perspective, the problem is not that corporations speak. The problem is sometime what they say is unpalatable to us and sometimes too many of them aren't acting as public citizens the way we'd like.

REHMAnd you're listening to "The Diane Rehm Show." Here's a tweet, "How does your guest define press regarding freedom of the press? Where is the line, if any, between traditional press, bloggers, tweeters, etcetera?"

ABRAMSA great question. I think at the end of the day we can't distinguish, except on the basis of function, what role does someone play, what role does that institution play or not. I've had this come up frequently, representing journalists in which I've urged upon courts that the First Amendment ought to allow them not to reveal sources. And the next question I got was, what about a blogger? It seems to me the only answer -- put it this way, the answer can't be that you've got to be a newspaper for profit, etcetera.

ABRAMSIt just can't be that because you're cutting out too many speakers. I think the answer has got to be people who gather information for dissemination to the public. In effect, people who behave like journalists have got to get the same protection as journalists.

REHMAll right. And just one point of clarification I wanted to make. This particular station is funded 50 percent by its listeners, by listener contributions and the rest do come from many businesses and even corporations. I just want to make that point. Let's go here to Pittsboro, N.C. and to Aaron. Good morning, you're on the air.

AARONHi.

REHMHi.

AARONI've been enjoying listening to the show. I had a couple of questions.

REHMBe quick, please.

AARONYeah, I've been the reading comments on the website. And there's one guy who said something really interesting. Paraphrased, money is not speech, it's volume control. But the main reason I called was I'm wondering if he has an opinion on Snowden. My personal thoughts -- this is the guy who leaked the wire-tapping program, which seems perfectly related to his book. And personally, I feel the guy deserves a medal, not prosecution. It's a blatant violation of the Fourth Amendment, despite (inaudible) court order, they did not have probable cause.

REHMAll right. Thanks for your call.

ABRAMSYou know, I think that the courts have gone wrong with respect to the Fourth Amendment. There was a decision back in 1979, which basically said by a 5 to 3 vote, that there is no really reasonable expectation of privacy by people who use the telephone since they understand that the telephone company has the records and therefore they don't expect those records to be kept private. I think that was just wrong. That is the law right now, but I think it was wrong. I hope if any of these cases come up involving Mr. Snowden or anyone else that the lawyer who's doing the case tries to revisit that.

ABRAMSBecause I think there is a reasonable expectation of privacy, not just that you won't be overheard, which the Supreme Court has said, but that who you are, what your phone number is, where you live, how long you spoke would be kept private unless some judge enters an order to the contrary.

REHMI have the feeling whether criminal or not, you may be hearing from Mr. Snowden. Floyd Abrams, his new book is titled "Friend of the Court: On the Front Lines with the First Amendment." I was so glad to speak with you.

ABRAMSThank you so much.

REHMThank you. And thanks for listening all. I'm Diane Rehm.