Photo: Brendan Hoffman/Bloomberg News
Photo: Brendan Hoffman/Bloomberg News

Floyd Abrams on Trump, Fake News, and 53 Years at Cahill

Floyd Abrams, 80, has practiced at Cahill Gordon & Reindel LLP as many years as he has been married: 53. But his path to Cahill was nothing magical.

In short, the federal judge he clerked for in Delaware handed him a list of law firm recommendations, and because it was alphabetical, Cahill stood at the top of the list. So that’s the first firm he phoned up for an interview and after a four-hour meeting, he was offered a job.

“So, yeah… that’s how life is,” Abrams said, with a laugh.

Although he didn’t expect much fulfillment out of a career in Big Law, he entered the firm as a third year associate in 1963 with a $9,500 salary and became one of its most influential partners, well known for his First Amendment expertise, trial and appellate experience.

Among other matters, he represented The New York Times in the Pentagon Papers case and CNN in investigating and issuing a report on its broadcast accusing the United Nations of using nerve gas on a military mission in Laos in 1999.

In a recent interview, Abrams shared his thoughts on a range of First Amendment rights issues raised by the upcoming Donald Trump administration, as well as the problem of fake news on Facebook, among other topics. Below is a transcript of the discussion.

 

Shot July 25, 2006 80 Pine St. NYC

Abrams on July 25, 2006 80 Pine St. NYC.

 

Big Law Business: Recently, Donald Trump tweeted that nobody should be allowed to burn the American flag, and that if they do, there should be consequences — perhaps loss of citizenship or a year in jail. Your reaction?

Abrams: As a legal matter, there is absolutely nothing that can be done of the sort that Mr. Trump is suggesting. Citizenship is permanent unless it is renounced and burning an American flag is protected by the First Amendment as the Supreme Court has twice held, once involving the state and once involving the federal government. In terms of what he can do about it, under current law, the answer is nothing. And it would take a major change on the court in terms of the First Amendment issue, which I do not believe that the conservative members of the court are prepared to do. I just don’t see them switching teams now or changing constitutional law now in response to what offends Mr. Trump.

 

Big Law Business: There’s also the question of whether any of these tweets actually mean anything. 

Abrams: That’s right on. You can spend a half hour talking about the law and he just did a tweet. It’s hard to know when he is simply reacting to something or simply articulating some position that’s, at least for the moment, valuable to him. Do I think he spoke to Senator Sessions about this before saying it? Not for a moment. Do I think he spoke with Orin Hatch on the judiciary committee? I don’t believe it.

And, on the other side, the issue is sort of a no-lose position. There are flag burning positions that were not popular with the public. Looking across the broad plains of citizens, voters, whoever, most people think that it’s wrong to burn an American flag and there ought to be something we can do about it. If that were not so, we wouldn’t have had this legislation. There was a federal law that ruled it unconstituational. Most states have laws that ruled it unconstitutional. … So I don’t think he will lose that popularity. But as a legal matter, it is both unconstitutional and inconsistent with the whole notion of citizenship to start walking down that road.

 

Photo by Abid Katib/Getty Images

Photo by Abid Katib/Getty Images

Big Law Business: There’s been a lot of talk about what Trump’s comments mean for journalists and the First Amendment. But what about Trump’s own speech rights? What kind of hot water could Trump get himself into if he says things publicly that are false? 

Abrams: First of all, saying what he said is protected by the First Amendment. So he is not at risk, in that sense. There is a risk that he could become personally involved in litigation during his presidency. I mean, he has been extremely litigious in his private life, so it certainly remains possible that he will sue even though he’s president. Things like that happen in other democractic countries. Princes and queens bring libel suits. It’s not unknown. It’s just unknown in America for the president to start the process of litigation. The other side of it, and he acknowledged this days ago, is that he could get sued. What are the risks of him saying things in wild fashion? He could risk personal liability, or at least the irritation or frustration of being a defendant in a case. Perhaps being a defendant in a case, in which the press not only ask to be present, but ask to have television. That, as a general matter, wouldn’t be a good thing for him. Speaking under oath is the risk here. Reading the transcripts of testimony in one of the cases that came out not so long ago, he’s giving, as a good lawyer would tell him, short answers, but they are unattractive answers. Half are ‘I don’t remember,’ and half are hard to believe. So, it’s not in his interest, in that sense, to subject himself unnecessarily to litigation. He did mention that just last week, talking about his idea of loosening the libel law, where someone told him he could get sued, too — and he hadn’t thought about that.

 

Big Law Business: There’s precedent for U.S. presidents being in litigation.

Abrams: Yes. The lawsuits against Bill Clinton had a major and extremely harmful impact on him. So there can be lawsuits. Indeed, from the Clinton administration, there is Supreme Court case law now saying that presidents have to testify. It’s not that presidents couldn’t get an extention. The lessons of that case, the Paula Jones case, is that they don’t have to give them time. He could end up in a disagreeable and uncomfortable and threatening situation if he ends up getting sued, and ends up in court giving a deposition.

 

Big Law Business: What kind of litigation risks do you think Trump should consider?

Abrams: If he goes after the press, he ought to at least keep in mind that they could go after him, too. If he says false and defamatory things about a newspaper, not just opinions, like ‘They don’t know what they are doing and biased,’ but false facts that are defamatory, then he could be sued. That’s one possibility. If he oversteps his bounds of his office, the U.S. can be sued and sometimes the president can be sued in his official capacity. So those things can happen.

At the same time, he has a lot more power as president than anyone suing him to use the threat and the fact of litigation as a potential way of chilling criticism of him. That, I think, is one of the real genuine risks of a Trump administration. He can’t change libel law and he can’t change citizenship rules, but there are things that he can do. He and his administration can bring espionage claims with respect to national security reporting. When they sue sources under the Espionage Act, they could extend the logic, or at least like what attorney general Eric Holder had said when he accused a Fox reporter of being a co-conspirator. At least one Republican congressman has urged the FCC to look into coverage of the political campaign, saying the broadcasters weren’t fair and did not serve the public interest and their licenses could be lifted. That has always been in the back of the mind to broadcasters as a danger. So one of the things that an administration could do, is have a complete adversary relationship with the press.

 

Big Law Business: Trump has said he’d like to ‘open up’ libel law. Could he?

Abrams: There is no federal libel law, so it isn’t an issue of opening up libel law. He just doesn’t know what the law is. We have fifty state libel laws and they are all subject to the bill of rights and the First Amendment. It’s not as if he’s likely to show up in front of Congress saying… we should what? … federalize all libel law and have to subject newspapers to violating federal law? I think a lot of Republicans would oppose that. And beyond that, of course, we have Supreme Court case law. Starting with the New York Times v. Sullivan in 1964, which provides the press with the protection that he objects to. What he really has on his mind is what some lawyers must have told him in pre-presidential life — that it’s not worth it; you’re going to lose lawsuits. Why? Because you’re a public figure and when they bring a libel suit, he or she needs to not just show that the information is false — not just defamatory — but it was known to be false, or that there was a high probability that it was false when it was uttered.

 

Big Law Business: So he couldn’t do much with the law. 

Abrams: The bottom line is, it’s sort of ironic: the things he has talked about doing are the things he absolutely cannot do. He cannot loosen the libel law, both because there is no federal libel law to loosen, and because the First Amendment bars it, and he cannot put people in jail for burning a flag because it’s protected by the First Amendment.

 

Big Law Business: There was a letter to Congress recently, purportedly signed by more than 9,000 lawyers, that opposed Steve Bannon’s appointment as Trump’s chief strategist. What is your take on Bannon’s appointment?

Abrams: Well, first of all, the appointment does not require congressional confirmation. So it’s not a matter of pressuring Congress or something. That said, I am concerned about his appointment. Certainly the product that he has offered publicly, Breitbart, has contained material which is racist, sexist, and otherwise inconsistent with the norms which most journalists seek to adhere to. Now, because of the First Amendment, all that is protected. And it should be. Although I’ve read some testimonials to him in terms of his not being anti-semetic, or anti-black or anti-women in his personal life, I don’t really think that’s very important… we do have a written record and are entitled to look at the material published under his leadership and a good body of it is deeply disturbing.

 

Big Law Business: What struck you as disturbing?

Abrams: Many of the articles about women and racial minorities, the headline about Bill Kristol being a ‘renegade Jew.’ They say what they are about is quitting the establishment and deliberately making people who are too comfortable less so. But that’s a very congenial way to look at the totality of what Breitbart has been offering. That, after all, is what has led to his appointment. It’s not his time at Goldman Sachs or other aspects of his life. It’s his political and social views and relationship with the president.

 

Big Law Business: Let’s talk about Facebook and fake news for a minute. What kind of a responsibility do you think Facebook has in light of the rise of fake news? 

Abrams: The Facebook issue is one of the most difficult ones because as a society we don’t really want Facebook to have to have people passing on truth or falsity of all the billions of messages and political and social commentary that passes one way or the other way. But that said, it does seem to me that there is room for Facebook and other social media to have some standards of unacceptability. And one of them might be the deliberate falsification of information on a pattern basis. That is to say, not getting something wrong, but repeatedly conjuring up false information and holding it out as the truth. Even that is difficult. It’s a major burden on Facebook, and it would be difficult. But we do have a growing problem of information which is being held out to be news, not commentary and not kidding. And Facebook is the largest entity that offers that to the public and to the world. And it’s not too much to ask them to take some steps to try to limit either the dissemination of that or to provide some warning on it.

 

A thumbs up symbol stands at the entrance to the Facebook Inc. European headquarters in Dublin, Ireland, on Thursday, Nov. 24, 2016. Photographer: Chris Ratcliffe/Bloomberg

Photographer: Chris Ratcliffe/Bloomberg

 

Big Law Business: Along with the Facebook issue, there’s been a proliferation of information from non-traditional sites and blogs. What should the media’s role be in this new terrain?

Abrams: There are some things you can’t do about it. The public is entitled to read what it wants and to get its news and information from sources that it finds useful. But, the best of the press can only remain the best if they continue to try to act consistently with what has historically been viewed as journalistic norms. That means distinguishing between news and editorial material and at least trying their best to gather information and put it out to the public in a way that is helpful and meaningful, in a democratic society. All of that is easier to say than to do. But there is still a market for that and I think it is critically important that the press continue to hold itself out as a fair and serious disseminator of information.

 

Big Law Business: Do you think that’s realistic given the financial realities facing media companies? 

Abrams: The financial pressures are enormous and there may have to be still further cutbacks. But so long as the press are there, in a form that we recognize, it should do its best to gather the news and disseminate it. If it develops that there will be less investigative work and less probing journalism, that would be a great loss. But whatever there is and what may continue to be done, can be attempted in a fashion which is still societally beneficial. I feel like dropping a tear [laughs].

 

390540 03: A website, falsely identifying itself as "BBC News" with links connecting it to the real "BBC News," reports the death of pop singer Britney Spears June 13, 2001 in London, England. (Photo by Sion Touhig/Getty Images)

Photo by Sion Touhig/Getty Images

 

Big Law Business: What are you hearing from clients? 

Abrams: The people I talk to aren’t really asking a lot of their outside counsel. Probably fewer calls to save a little money.

I think the large institutions try to be serious entities, but times change. Years ago the former chief of correspondents of Time Magazine told me a story that, at the time of Kennedy’s inauguration [in 1961], he and Bobby [Kennedy] and [White House Press Secretary] Pierre Salinger arrived at the Time party one night. A few days ago, I was telling this to a friend, an associate here, of millennial age, who said in disbelief, ‘The president went to a Time Magazine party?’

So, time changes and people get information from a wide range of places, but there is still room for good and solid journalism.

 

 

Big Law Business: What’s keeping Floyd Abrams busy these days?

Abrams: Right now I’m just finishing a brief on behalf of consititutional law professors in a case of the Supreme Court about whether it’s consistent with the First Amendment for a trademark not to be issued if it is scandalous or disparaging. This came up in the Washington Redskins case, but it’s now before the court in a different case, involving a band called The Slants. And The Slants are an Asian American group and [are accused of] mocking, by their name, the racial prejudice against Asian Americans. The trademark office refused to provide them with a federal trademark because there is a statute that says no trademarks for scandalous or disparaging language. It’s now in the Supreme Court, so I’m doing a brief for a group of constitutional law professors, urging the court to rule that it violates the First Amendment. And they shouldn’t be in the business of deciding what is scandalous and what is not. And they should not be empowered to refuse to grant the trademark that would otherwise be granted because of the words that were used and the government’s disapproval of those words. That’s what I’m working on right now.

 

Big Law Business: How long have you been at Cahill Gordon now?

Abrams: It was 53 years this September. I am also married 53 years.

 

Big Law Business: Did you marry someone at the firm?

Abrams: No, my first job after law school was at Princeton University where I worked for a professor in their department of politics who is doing a book about the Supreme Court. And I met her when I was there, through mutual friends, and we married three years later. She is from Israel so we were married in Israel in 1963. And that was the year I came to Cahill in September.

 

Big Law Business: How did you find your job at Cahill?

Abrams: I was clerking for a federal judge in Delaware and I asked my judge to recommend New York firms that had done litigation in front of him that he was impressed by. And he gave me an alphabetical list of five firms, of which Cahill was the first, alphabetically. And… so, yeah… that’s how life is. I called them. In those days, there were no great recruiting efforts. They just said, ‘When you’re in town, stop in.’ I came in and we spent three or four hours and they made me an offer. I never really thought I was going to be happy practicing at a big Wall Street law firm, so I didn’t even distinguish in my mind between Cahill and others on the list. But they made me an offer and the process of seeking to be hired was not an especially pleasant one. So I held my breath and accepted.

 

Big Law Business: I suppose they didn’t pay first-year associates $180,000 back then.

Abrams: No, it was $9,500 and I was worth every penny of it. I had clerked for a federal judge for two years so they gave me two years credit and treated me like a third year associate. The first years then were getting $7,500.

 

Big Law Business: Any news you can share about associate bonuses this year?

Abrams: Actually we are having an executive committee meeting tomorrow. No, I can’t, but we have always paid the market rate, whatever it is, and I’m confident we will meet it.

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