That’s not the worst of it. Under McCain-Feingold, the publisher Penguin was barred from promoting Senator John Kerry’s book, “A Call to Service,” during the run-up to last year’s election. And as a result of the law, Lions Gate, distributor of Michael Moore’s documentary “Fahrenheit 9/11,” pulled some of its ads for the film before the Republican National Convention. Why? The ads had featured President Bush hitting a golf ball. The mere image of Bush in the ad ran afoul of McCain-Feingold.
I would concede that in extreme circumstances—say, if national security were really at risk—we might consider abridging the freedom of speech. But in a December 2002 deposition, McCain justified the campaign finance law simply on the grounds that it serves to eliminate “the appearance of corruption.” Thus McCain sets a dangerously low bar for First Amendment abridgement. Unfortunately, the Supreme Court, by a razor-thin 5-4 vote, upheld the law on Dec. 10, 2003. That day may go down in history alongside other judicial low points, like May 18, 1896, when, in the case of Plessy v. Ferguson, the Court ruled that states could maintain “separate but equal” facilities for whites and blacks. As one of the more moderate justices, Anthony Kennedy, wrote with regard to McCain-Feingold: “Never before in our history has the Court upheld a law that suppresses speech to this extent.”
JUMPING THE GUN
Chalk June 27, 2005, as another date that may live in Supreme Court infamy. On Monday, the justices rejected an appeal by two reporters, the New York Times’ Judith Miller and Time magazine’s Matthew Cooper, who refused to disclose the names of confidential sources to a grand jury investigating the leak of a CIA operative’s identity. Abrams is the duo’s lawyer. He may be “speaking freely,” but his clients could soon find themselves behind bars. Just yesterday, Time said it would release Cooper’s subpoened notes to a judge, while the New York Times continues to hold out from the court order.
If journalists can’t keep their sources’ names confidential, then informants won’t talk. Reporting on governmental and corporate scandals—in which sources are likely to be fired if their names are revealed—will become well nigh impossible. Newspapers will be relegated to reeling off human interest stories and boilerplate press releases. It will be like turning the New York Times into the Harvard Gazette.
On the one hand, Abrams published his memoir at an opportune moment. It came on the eve of the Supreme Court’s stunning blow to the freedom of the press. And it arrives in stores as politicians who seem unconcerned with the First Amendment—namely Giuliani and McCain—dominate opinion polls.
But on the other hand, this reviewer must caution readers about purchasing Abram’s memoirs prematurely. With threats to the First Amendment looming, Abrams—still an actively practicing attorney 45 years after graduating from Yale Law School—will certainly be a figure in the coming fights. A “Speaking Freely: Second Edition” might soon be in order.
—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.