Floyd Abrams’ initials signaled his destiny as a First Amendment lawyer. More than any others, Abrams’ name is synonymous with freedom of speech and the press. Now nine decades into his life journey, I thought it would be good to provide a brief profile of the man. Abrams remains astute, mild-mannered, witty, industrious, and thoroughly dedicated to the Madisonian promise. That resolve has won him both venerated praise, and fierce criticism.
The measure of the man
“When I graduated from law school,” New York Times journalist Adam Liptak recently told me, “I wanted to work for Floyd Abrams – and I did, spending four years as an associate at his firm. I also hired him when I was an in-house lawyer, covered his arguments as a journalist, and taught courses with him on the First Amendment at Yale and NYU. It is uncontroversial that Floyd is the greatest defender of press freedom in the history of the American judicial system.”
According to media lawyer Lee Levine, who has also worked with Abrams, “Time and again over more than half a century, Floyd’s extraordinary skill set – excellent judgment, elegant prose, deep understanding of constitutional theory, and understated but strikingly effective oral advocacy – has protected journalists, strengthened their and our First Amendment rights and, above all else, enhanced American democracy. He inspired a generation of lawyers, myself included, to join the fight.”
Key tenets of Abrams’ First Amendment philosophy
As a litigator, press counselor, legal scholar, author, and spokesman for free expression, Floyd Abrams has no modern counterpart. Consider his impact on First Amendment law through a few examples, such as in 1976’s Nebraska Press Association v. Stuart, a press-gag-order case in a fair-trial context. Appearing on behalf of a variety of publishers, broadcasters, and journalists, Abrams (along with E. Barrett Prettyman, Jr.) helped establish the principle that gag orders directed to the press are presumptively invalid prior restraints. First Amendment scholars Jerome Barron and C. Thomas Dienes concluded that “the Nebraska Press case has to be regarded as a virtual death knell for gag orders by courts against media publications.”
From front left: Lawrence McKay, Floyd Abrams, Bickel, James Goodale, and William Heggerty. (AP Photo/Charles Harrity, The Associated Press.)
His role in working alongside Alexander Bickel in the Pentagon Papers Case represents yet another significant victory regarding prior restraints on the press. As that decision made clear, even when such censorship involves classified information concerning a war, there is a heavy burden of justification required to impose a prior restraint on the press for materials lawfully obtained.
And then, of course, is Citizens United (but more on that below).
Abrams’ appellate success is also measurable. He has prevailed in 77% of the First Amendment cases he argued before the court.
The following are some of the key tenets of how Abrams approaches such cases concerning free speech and the press – as he put it recently to me in an email:
It’s obviously difficult to set forth themes that would be useful in every case against the press but here are three that I think might more often than not be useful.
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The first is the importance to all of what journalists do and the particular importance to the public of what the accused journalists in the case before this jury were writing about.
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Second, the good faith of the accused journalists and why that good faith should lead to a verdict in the defendant’s favor.
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Third, the centrality of the First Amendment to the case and how the First Amendment and thus the public would be threatened and ultimately harmed by a verdict or ruling in favor of the plaintiff.
That said, Abrams is not a First Amendment absolutist. Depending on the context, there are certain considerations which he believes should be taken into account, especially when it comes to war and national security, though even there he sets the bar high.
According to Abrams, “we seem to be and have been in a permanent state of war for some time.” Hence, “we must take special care not to sacrifice freedom of expression, except in the most truly threatening circumstances. . . . Even if we define [any conflict] as one of war[.]” “I would certainly reject any test as loose as the one suggested [by the Supreme Court] in [Schenck v. United States]. . . Indeed, any importation of words, such as reasonable, and hinder seem to me unacceptable.”
As for national security, Abrams sides with what Justice William Brennan set out in his concurrence in the Pentagon Papers Case: “to obtain ‘even the issuance of an interim restraining order,’ the government was obliged to prove that the publication ‘must inevitably, directly and immediately cause’ [harm].”
Citizens United
Abrams’ distinguished career is not without its critics. As he recently put it, “my liberal friends, who are most of my friends, still haven’t forgiven me for my position in” Citizens United v. Federal Election Commission.
He won that landmark case by a one-vote margin, with the liberal justices dissenting. Yet he conceded this much in a 2010 Yale Law Journal article:
I do not suggest that no difficult issues are raised in this area. The determination of what constitutes ‘corruption’ in a political context is difficult. The dangers of unrestricted corporate spending drowning out the voices of others may seem unlikely ones to me, but they certainly cannot be discounted out of hand. Nor can it be denied that the potential remains for some increase in what is referred to as ‘the appearance of corruption’ as a result of vastly increased corporate or union involvement in electoral politics – if that, in fact, occurs.
Such is the life of a spirited First Amendment lawyer – please some, infuriate others. To please everyone would mean offending no one, which would render the First Amendment meaningless. Risk, after all, is a vital part of freedom. “Each society chooses the risks it is prepared to make . . . As a general matter,” Abrams stressed, “this country, more than any other in the history of the world, has chosen the risks of allowing free speech, rather than the risks of suppressing it.”
Onwards
Floyd Abrams shows few signs of slowing down as he moves towards the century mark. Lawyer, scholar, teacher, writer, and devoted family man, he’s full throttle. Then again, to circle to this article’s beginning, it’s the life for which he was destined.
Or as he once put it:
I cannot imagine being more fulfilled doing anything other than being a lawyer. There are some things that are unimaginable – the centerfield slot of the Yankees has always been filled – but of things that are within my imagination, I’ll stick with what I’m doing.
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15 Supreme Court cases and more
For those further interested in Abrams’ work, or just the First Amendment in general, consider the following cases in which he was involved:
- Citizens United v. Federal Election Commission (2010) (won)
- McConnell v. Federal Election Commission (2003) (won)
- Varity Corporation v. Howe (1996) (lost)
- Minnick v. Mississippi (1990) (won)
- United States v. Providence Journal(1988) (won)
- Harper & Row Publishers, Inc. v. Nation Enterprises(1985) (won)
- Metromedia Inc. v. City of San Diego (1981) (won)
- CBS Inc. v. Federal Communications Commission (1981) (lost)
- Smith v. Daily Mail Publishing Co. (1979) (won)
- Herbert v. Lando (1979) (lost)
- Landmark Communications v. Virginia(1978) (won)
- Nixon v. Warner Communications, Inc. (1978) (lost)
- Nebraska Press Association v. Stuart(1976) (won)
- Branzburg v. Hayes (1972) (lost)
- New York Times Co. v. United States(co-counsel) (1971) (won)
And then there are his books on free expression: The Soul of the First Amendment (2018), Friend of the Court: On the Front Lines with the First Amendment (2013), Speaking Freely: Trials of the First Amendment (2006), and The Right to Know: Granada Guildhall Lectures 1984 (1985). Add to that his 25-plus scholarly articles (like“Reviving the Press Clause” in Columbia Law Review (2026)), countless op-eds (such as in The New York Times), his testimony before Congress (regarding proposed hate crimes legislation), his numerous appearances on C-SPAN, his participation in First Amendment Salons, his involvement in reenactments of famous free speech cases, his role-playing as chief justice in moot court free speech cases, and his public lectures (including his 2025 Amanpour Lecture). In one such lecture at the Missouri School of Journalism, he was forthright: “I do think that [President Donald Trump] is more hostile to the press than any of his predecessors in American history.”
To be sure, there is more, but that is a matter for a long-overdue biography. Meanwhile, there is an illuminating PBS documentary titled “Floyd Abrams: Speaking Freely” (released in 2023, directed by Yael Melamede).