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The Soul of the First Amendment with Floyd Abrams

Floyd Abrams



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In this episode of Solomon Success, we look at the First Amendment and how that impacts our behavior and speech. Jason Hartman discusses what the amendment says, how it protects us, and whether or not there are repercussions to our speech. He hosts Floyd Abrams to discuss his latest book The Soul of the First Amendment. They look at society, fake news, and tie it in with our rights.

Announcer 0:01
This show is produced by the Hartman media company. For more information and links to all our great podcasts, visit Hartman

Announcer 0:12
Welcome to the Solomon success show, where we explore the timeless wisdom of King Solomon and the Bible as it relates to business and investing false prophets and get rich quick schemes are everywhere. Let’s not be distracted by these. Instead, let’s go to the source, the eternal principles that create a life of peace, power and prosperity. Here’s our host, Jason Hartman.

Jason Hartman 0:41
Welcome to the show. This is Jason Hartman, your host and every 10th episode, we do something kind of special kind of different. What we do is we go off topic so regardless of which show it is on the Hartman media network, whether it be one of the financial shows economics, real estate, investing, Travel, longevity, all of the other topics that we have every 10th episode, we go off topic, and we explore something of general interest, something of general life success value. And so many of our listeners around the world in 164 countries have absolutely loved our 10th episode shows. So that’s what we’re going to do today. And let’s go ahead and get to our guests with a special 10th episode show. And of course, on the next episode, we’ll be back to our regular programming. Here we go. It’s my pleasure to welcome Floyd Abrams to the show. He is a leading legal authority on the First Amendment and us constitutional law. He’s got a tremendous background and he’s author of the new book the soul of the First Amendment. Floyd, welcome. How are you? I’m just fine. Good. Thank you for having me on. It’s great to have you on the show to talk about this very important topic. One of the great things about our constant And the United States in general is that we have the right to free speech, of course that can interfere with other people’s rights at times, depending on what it said. There’s a lot to it. It’s a very complex subject, of course. Tell us a little bit about your background and some of the landmark cases you’ve litigated.

Floyd Abrams 2:17
Well, I’ve worked on the Pentagon Papers case for the New York Times back in 1971, when the government went to court, seeking an injunction against the times, publishing, what became known as the Pentagon Papers, and a defense to Bergman study of how we got into the war in Vietnam, which was then raging. And it was a very contested case which way one, I’ve represented the Brooklyn Museum, in a case brought against Mayor Giuliani of New York City, when he basically tried to shut it down on the grounds that in one of the works Bart, was in his view, sacrilegious, and in any event deeply offensive. I represented Senator Mitch McConnell, in what became known as the Citizens United case. I was one of the two lawyers who argued on behalf of err on the side of citizens united basically arguing that as a First Amendment matter, corporations and individuals both should be permitted to sort of spend their money as they chose, on elections, urging people who to vote for who to vote against taking musicians on public issues, and the like. So I would say that while I’ve been kept busy through my litigation career, and my writing of a few books, the most recent as you’ve said, This called the soul of the First Amendment, I’ve focused my attention and most My work has been in the area of the First Amendment.

Jason Hartman 4:03
Yeah. Fantastic. It’s certainly a fascinating topic. So Floyd, tell us a little bit about some of the issues that come to bear in these first amendment cases. Whenever anybody says anything, of course, they want to claim Well, I have the right to say it, you know, the First Amendment protects me. I can say whatever I want. But that’s not always the case. Right? I mean, what are some of the nuances and of course, we could talk about this for years, I’m sure. Because this is

Floyd Abrams 4:31
great. The first thing you have to know is that the First Amendment only relates to the government. The First Amendment protects us against the government, getting involved or too involved with respect to religion, freedom of speech or freedom of the press, nothing to do as a legal matter, with what private people are allowed to say to each other. What employers are allowed to do to employees To say certain things, what neighbors can say it is a protection against the government. And so it is limited in that way. Now, sometimes the government is larger than one might think, for example, they’ve been a lot of issues recently on college campuses, about who can speak and who not and what the law is and what it should be about language, which is offensive to some people or even outrageous. And as to that state schools are treated very differently than private once ones that are funded, basically full time funded by a state or by the federal government are subject to the First Amendment. private universities are not

Jason Hartman 5:50
Right, right. See, that’s very interesting, because the argument, I guess, is that if that university receives government money, or I would even argue do that if it doesn’t directly receive government money, but people are using government insured student loans to pay for tuition, then it is in essence by proxy receiving government money, but it’s ultimately a proxy for the government. Right. And so then well, but

Floyd Abrams 6:17
the law Well, now the argument is the University of California is a part of the state of California. Right? Right. Not because anything to do with tuition or government assistance or the like, but that it is sort of literally the creation of the state, with the state and the position, the subject to other roles, of course, but by the state and imposition to set its policies to establish by a legislature, not private, that is funded, only funded by, you could say the public but the public and taxation and the like to The state. So the University of California would be is treated very differently. And the law, at least as regards the First Amendment than a private university, Stanford, say, and California. Now, it is also true that a lot of colleges and universities that are private, say and try to mean that they will apply first amendment standards just as if they were governed by the First Amendment. But my only point was that the sort of starting point for understanding the First Amendment is that it’s a limitation on the government, on the Congress, on the President on the states and the creation of the states, such as universities.

Jason Hartman 7:51
Are there any other examples he can share with us about what you brought up right away that sometimes the government is larger than it seems? The university examples of great One, are there others we should you know that maybe we’re not thinking of

Floyd Abrams 8:03
when a city owns a bus line when the government builds a highway and it is a federal or a state highway? That gets a little complicated, but sometimes, you know, roads and the liker are private in one way or another button when we’re talking about state entities. That’s what we mean sometimes stores, not many, but there are some which are owned by the government. The post office is the government. The telephone company is not television is not, but because a television station or a radio station needs a federal license. It is subject to sort of different sorts of laws than a privately owned newspaper.

Jason Hartman 8:50
Oh, very interesting.

Floyd Abrams 8:52
Not entirely different but, but a greater level of regulation. A broadcast station is supposed to serve the public and interest. And license renewal might not be granted. If somebody could show that the broadcaster used it 24 hours a day, say for advertisements. That’s all it is. ads all day and night. That’s not why we grant a license to a broadcaster.

Jason Hartman 9:19
Yeah. How interesting. See, because that’s in the past, it was all really about the FCC, right? But now what we’re doing right now is we’re podcasting. So, you know, I can cuss and swear and do all kinds of things that a radio station can’t do.

Floyd Abrams 9:33
Exactly yours. Yours is is treated as being just the same as if you went into a park and gave a speech, or if you otherwise exercise, you know, your first amendment rights to speak out. write letters urging people who to vote for said things on the internet. Those are

Jason Hartman 9:56
Yeah, but you can do that. I mean,

Floyd Abrams 9:59
television station. can have an opinion, you know, for example, like the left loves to come down on Fox News, but I think one of the distinctions that they haven’t been very successful at making is that some of their coverage is actual news and some his opinion and opinion, you know, when you’re looking at, well, formerly O’Reilly that’s an opinion show, right? It’s he’s not doing all news, you know, he’s expressing opinions versus the news reporters are supposed to be, you know, theoretically objective. Right. Right. But in more, I mean, what you say is true. And what I’m saying is that, in more recent cases, the broadcast medium has been receiving legal protection, close to not quite the same as but close to that of the print press, or close to that of the internet. Not quite the same because they do need a license. And because you are supposed to act consistently with the public interest, but because of the First Amendment First Amendment interests. The government, the FCC has got to be very careful about not pushing its views onto Fox or CNN or, or whoever. And that was one of the objections to having what we used to have which was called a fairness doctrine. Fairness Doctrine, was it a broadcaster took a position on some interest. So it’s a matter of public interest. You want to have the other side on. And you know, that sounds perfectly reasonable. The problem is, the umpire is a government entity, right. And one of the umpires a government entity, you start running into, you know, significant first amendment issues because there is a tendency, sometimes no worse than that, but sometimes pretty clear, right for governments to push the politics, the policies and the like, that they favor. And that’s one of the reasons The law has moved in more recent years towards giving broadcasters broad first amendment rights and cable operators complete once. Remember, on cable, you don’t need a license. Right.

Jason Hartman 12:13
Right. So the fairness doctrine is a really interesting thing. Because I think when the Fairness Doctrine I mean, have we done away with that completely? Or is it still around to an

Floyd Abrams 12:21
extent? Yeah, totally gone? No, it’s gone.

Jason Hartman 12:24
Yeah. And I remember when I was a kid, you know, listening to am radio, you would always hear this kind of point counterpoint stuff on talk radio. And I guess when the Fairness Doctrine gave way, then you had sort of the rise of rush limbaugh. What’s interesting about the fairness doctrine is that would seem impossible, because, for example, you could have one side saying one thing, and then you’re supposed to say, but then you could intentionally put up a really weak argument on the other side. I mean, how can you pass I tell you,

Floyd Abrams 12:54
I used to do a lot of legal work for NBC and the sort of agony They went through the to take one example when we were building when they when the private parties were were building a pipeline and Alaska was very, very controversial. And NBC had on representatives of the government in Alaska that was in favor of the pipeline. And then they got a lot of complaints saying you just did one side, you just did one side. So they called up a person, well known person who was viewed as an opponent of the pipeline. And they asked him to come on today’s show, and he went on, they asked him without any preliminary discussion with him. What do you think of the pipeline? They will generally I think it’s a pretty good idea. And everyone at NBC was, Oh, my God, now we have to get someone else. Because now we’ve had two people on supporting the pipeline. Now, it never had to be even, you know, it never had to be you had someone on for 15 minutes, you got to have 15 minutes, the other side, but there has to be some recognition of the other side. And that’s something which has been flatly rejected with respect to the print press, and has always been rejected. I mean, the newspaper owner can put what he wants it as newspaper period. It doesn’t have to have the other side and it doesn’t have to be fair. That’s enough. If you don’t like it, read something else, which is basically the rule of the road on the internet so that

Jason Hartman 14:32
you know where this gets very scary, in my opinion is when you come to Google and Facebook, and they seemingly, I may be wrong about this, but my impression is that neither of those organizations are fans of Donald Trump. pretty controversial character, to say the least right? And it was like instantly The day after the election. All I started hearing is about fake news and how Facebook and Google need to filter Out fake news, who the heck can possibly really decide what fake news is as a person, even if they were truly objective, but definitely as a computer algorithm might God Is that even possible? People on either side of the aisle would say, well, CNN is all fake news or Fox is all fake news. You know, that just sounds like total censorship to me. I’m really

Floyd Abrams 15:23
I mean, if there is a problem, I mean, Facebook and Google, in particular, want very much to have the entirety of the public like them. Yeah. I mean, they don’t exist to take political positions or the like, but they do exist, but they still offer if they want to do well, right. Yes, they could absolutely influence. Oh, I mean, more people get their news from Facebook than anyplace else in the world. I agree. Yeah.

Floyd Abrams 15:55
I mean, that’s the fact.

Jason Hartman 15:58
By the way, let me just get One more piece of ammunition for this discussion on this. I know this is not your area, but I mean, anti trust. any entity that controls 70% of the planet’s search traffic, like Google, or so much like Facebook that has kind of be broken up. It seems like I mean, I don’t know.

Floyd Abrams 16:19
Well, I was on a panel yesterday in Washington that was sponsored by the Washington Post. And there was representative of Google there. And, you know, we were talking about its its power. And, you know, they, they spent a lot of time preparing their algorithms. I don’t believe this is my personal opinion, that either Facebook or Google want at all to be controversial about what they’re putting forward or how their algorithms work. I mean, they have problems. at the most basic level. I mean, they they try to prevent or to bar right speech? Well, I mean, that puts them in an editorial role. Yeah, I happen to think that’s a good thing. Because I think there is some speech they shouldn’t carry. Now, the first amendment would protect that speech. The question is, what would we like? Suppose it were up to us to decide what we would like Facebook to carry what we like Google to carry? Do we want them? How would they respond to the Prime Minister of England, saying you really have to be more careful about carrying sort of incendiary language which could incite people to join ISIS and drop bombs all over London. As the Prime Minister has said, You know, I may introduce legislation, I want these entities to play a role of assuring that sort of pro terrorist or terrorist inducing language doesn’t disappear and a That’s not easy. The The question is, do we want them? I mean, what editorial role that we want them to play. Now after the election, with with least one example of, you know, some crazy guy going into a pizza place because a fake news entity, said Hillary Clinton was a basically abusing children there. Some guy went in there with a gun and started shooting it up. There was a lot of public pressure on Facebook, do something, why do you carry stuff like that? And so they are, I don’t really know where they’re at in their thinking now, but I know, they’re spending a lot of time and effort trying to cut through this. So on the one hand, they’re not really playing a major or even a serious editorial role, but on the other, they’re not carrying stuff which is both false and has some sort of reasonable likelihood of causing various Is crime?

Jason Hartman 19:01
Yeah, it’s it’s these are complex issues. I mean, you’re, you have a very complex job.

Floyd Abrams 19:09
Wouldn’t you agree? Well, but it’s interesting.

Jason Hartman 19:11
Yeah, sure is interesting. Hey, can you just talk briefly before you go? you framed this at the outset about the First Amendment being all about the government versus the people. And that’s one of the just incredibly wonderful things about the Constitution. It’s sort of the maybe only the second real significant document after the Magna Carta in history that that gave the rights really to the people, you know, and, and that was a novel idea at the time, at least in my eyes. How does it interplay if at all when it comes to business to business or person to person I interviewed a renowned defamation attorney has done a lot of, you know, work in Hollywood and so forth. And obviously, with all of us getting on social media, so many people having blogs and podcasts and I’m sure that is plugged up the courts. I mean, I’ve certainly as I mentioned to you litigated these issues before, you know, is there any interplay at all? Or, you know, tell us about that. Just pretty sure. I mean, that now that we have a mechanism of communication, which is genuinely open to the public, which is basically free, which allows just about anyone to say, just about anything to a potentially enormous audience, new sorts of issues arise. Sometimes people on Facebook get sued for libel, right, sure. But they’re not like big newspapers out, and they don’t have insurance. They don’t have policies. I mean, an ordinary person who wants to spout off and denounce someone else doesn’t know. But should that Yeah, he could get sued for libel. People get sued for yelper views. You know, that’s

Floyd Abrams 21:02
what they do. They they do. I mean, that’s very important that people be free, in my view to put out Yelp reviews. But one of the problems is, you know, some of those are fakeness. True. I mean, there are reviews that are submitted by competitors, which make believes that they’re really for reviews of

Jason Hartman 21:23
from conservatives,

Floyd Abrams 21:25
or the like. Sure. And that’s another complexity.

Jason Hartman 21:28
And then some of the reviews are positive submitted by the organization themselves.

Floyd Abrams 21:32
That’s absolutely. The lesson of that is don’t depend too much on that, right. I mean, don’t go around saying I read it on the internet. The fact that you read it on the internet doesn’t tell me anything about what is likely true or not sure, sure.

Jason Hartman 21:50
It’s definitely complicated. give out your website or tell people where they can find the books or whatever resources you want.

Floyd Abrams 21:57
I don’t have a website but you can buy it at Amazon or or other bookstores around the country.

Jason Hartman 22:03
And that’s Floyd Abrams, and the book is entitled The soul of the First Amendment. Floyd, any comment on your interesting Table of Contents you have one entry? I love that, you know, the First Amendment 139 pages. I just found that to be kind of humorous.

Floyd Abrams 22:21
Oh, well,

Floyd Abrams 22:25
that’s just trying to keep down the noise.

Jason Hartman 22:29
And 139 pages on on that subject is probably a short summary, right?

Floyd Abrams 22:34
Oh, it is. There’s no data that lots of things that I do for a living lots of things I testify about, right, which are not in the book. But I talked in the book about, you know, most of all about how different we are, then everyplace else in the world, every everything sells in the democratic world, in terms of how much protection that we have, you know,

Jason Hartman 22:58
very, very fascinating And I’m grateful that we have that protection. It’s a wonderful thing. Floyd, thank you for your work. And thank you for coming on and sharing. Talk to us today. Thank you. Thank you so much for listening. Be sure to check out Hartman for appropriate disclaimers and Terms of Service. Remember that guest opinions are their own. And if you require specific legal or tax advice, or advice in any other specialized area, please consult an appropriate professional. We look forward to seeing you on the next episode.