List of cases argued by Floyd Abrams

Floyd Abrams

This page contains a list and short descriptions of Floyd Abrams's most influential and famous cases. As an advocate of the First Amendment, Abrams' career has put him in a class of prominent legal scholars who have shaped American understanding of fundamental rights found in the United States Constitution. That work is documented here. In his 2005 book Speaking Freely, he outlines his knowledge of and perspective on the cases below. In this memoir, Abrams states this collection of cases showcases the work people have put into free speech in the United States.^[1]

In his review of the book, Lee Levine wrote "that the modern history of the freedom of the press in this country is intimately associated with the career and work of Floyd Abrams." His career matured in the late 1960s, right after the Supreme Court decided New York Times Co. v. Sullivan (1964). He has worked on the Pentagon Papers case and Branzburg v. Hayes (1972), to Landmark Communications v. Virginia (1978) and Smith v. Daily Mail Publishing Co. (1979), to Nebraska Press Association v. Stuart (1976). He has defended numerous clients, including the Brooklyn Museum of Art from Rudolph Giuliani over the Sensation exhibition, NBC from Wayne Newton, and Al Franken from a trademark lawsuit from Fox News Channel over the use of the phrase "Fair and Balanced" in the title of his book.^[2]

New York Times Co. v. United States

Landmark Communications v. Virginia, 435 U.S. 829 (1978)

In his memoir Speaking Freely, Abrams states this was the first case he argued by himself before the Supreme Court. He states that he devoted most of their preparation for the case with three overlapping issues, "ones that have consumed my attention in every later Supreme Court argument as well." First was jurisprudential: What rule of law would they urge the Court to adopt? What would be its effect as stare decisis and its impact on the First Amendment? The Second Question was tactical: Justices are known for taking up the 30 minutes of allotted argument time with question-and-answer sessions; Abrams felt he needed to figure out his core message. What did he want to get across in as little time as possible? The Third Question was what the court might ask that would be exceptionally difficult to respond to, and what should those responses be?^[3]

Background and procedural history

Abrams represented Landmark Communications, which owned the Norfolk Virginian-Pilot. Landmark would be the first case Abrams argued before the Supreme Court by himself. The Pilot had reported on October 4, 1975, that Judge H. Warrington Sharp, who sat on the Juvenile and Domestic Relations Court, was under investigation by a judicial fitness panel. It was deciding whether or not to begin disciplinary proceedings against Sharp. Under Virginia statute, each complaint against a judge was to be reviewed in secret; it would be announced only if deemed serious enough to require a public hearing. All states had confidentiality requirements to avoid use of the disciplinary inquiry as retribution against a judge; however, only Virginia and Hawaii provided for criminal penalties for disclosure.

There was a quick trial and conviction of the publisher of a misdemeanor and $500 fine. Landmark appealed to the Supreme Court of Virginia, which affirmed the conviction by 6–1. The court concluded that the "requirement of confidentiality in Commission proceedings" served three purposes: 1. protection of the judges' reputation; 2. protection of public confidence in the judicial system; and 3. protection of complainants and witnesses from possible recriminations.

Arguments

Abrams wrote that his primary argument was straightforward: The newspaper published a true account, had not obtained the information illegally, and the alleged offense was simply reporting a complaint about how a public official performed his civic role. In his brief, Abrams argued that the case raised "anew a question which penetrates to the core of our concept of self-government: whether the press may be punished for printing the truth about a public official with his public duties.

Assistant Attorney General James Kulp defended the Virginia Supreme Court opinion with the above-mentioned three reasons for the statute. Justice Byron White questioned Kulp about whether the case was really about not criticizing public officials, a Constitutional right, and asked whether he would defend a statute calling for confidentiality for protection of the judge. "No, sir", responded Kulp. "I think the cases from this Court have been clear in that respect, that, in other words, a judge, as any public official, may certainly be criticized, the administration of justice may be criticized, and we don't have any argument about that." White said if that was so, then his arguments about protection the judiciary and the system held no weight. Kulp agreed.

Virginia's time before the Court dealt with the scope of the statute. Chief Justice Warren Burger asked Kulp whether if a lawyer held at a press conference handed a copy of a complaint he filed with the commission to the press, that it would violate the statute; but if he made the statement public but did not file the charges, then First Amendment protection would be granted? Kulp reluctantly agreed.

Abrams declined his rebuttal time, confident in Landmark's victory.

• "During one exchange, Justice William H. Rehnquist asked a question for which Mr. Abrams said he was "totally unprepared", but Justice Potter Stewart came to his rescue. Of all the justices, Mr. Abrams found Justice Byron R. White the most unnerving. White "invariably asked questions that were both pointed and powerful", he recalls, and Mr. Abrams never once "had the sense that anything I said pleased him." He confides that during oral argument he often felt like a mouse with "a tormenting cat." Nonetheless, he won a unanimous victory."^[4]

• "It had been quite an introduction for me to arguing for a complete thirty minutes in the Supreme Court: fifty-four judicial questions and comments. Years later, when I saw Albert Brooks play a television journalist in Broadcast News who perspired so much when on the air that his shirt looked like he had just returned from a swim, I wondered if I had presented the same appearance after my Landmark argument." ^[5]

Holdings and Influence

The Court held unanimously in favor of Landmark. Chief Justice Burger wrote the opinion for himself and the other five members (Justices Brennan and Stevens recused themselves). The Court did not adopt Abrams's categorical approach (all truth reporting in reference to public duties was insulated from criminal sanctions by the First Amendment). However, the Court rejected the argument that these interests were sufficient grounds for criminal sanctions on nonparticipants in proceedings.^[6]

In its conclusion, the Court wrote: "the [clear and present danger] test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil as well as its likelihood against the need for free and unfettered expression."

• "Perhaps most satisfying to me, the Court not only questioned the relevance of the clear-and-present danger test to Landmark's claims...but noted, in language frequently quoted by the Supreme court thereafter, that it was insufficient for the Virginia Supreme Court simply to defer to the legislative judgment that there was some sort of clear and present danger." Floyd Abrams.^[7]

Nebraska Press Association v. Stuart

Five years to the day after New York Times Co. v. United States, the Supreme Court struck down a series of publication restraints that limited the right of the press to publish information about criminal defendants in current cases, such as a confession. Abrams wrote about the topic in his senior thesis at Cornell University. From his opening argument before the Supreme Court:

"For what we would ask of you is nothing less than a renunciation of power, the conclusion by this Court that the Judiciary should not and indeed may not tell the press in advance what news it may print, save only in that rare national security situation, in that rare national security case adverted to by this Court in Near v. Minnesota, and in the Pentagon Papers case."^[8]

Only three members of the Court (Brennan, Stewart, and Marshall) wanted what Abrams wanted: a bright-line rule banning prior restraint in all cases that involved claims that publication would interfere with the right to a fair trial for the defendant. White and Stevens indicated that they might go that far in the future and joined Chief Justice Burger's opinion, that left open that possibility.

Wayne Newton v. NBC

Background

The FBI was investigating Connecticut mobster Frank Piccolo, a caporegime in the Gambino mafia family, who ran loan-sharking and gambling rackets. Piccolo reported weekly in person to Carlo Gambino himself in New York City. The FBI obtained a warrant to monitor and record Piccolo's conversations for sixty days from May 13 to July 12, 1980. Among those conversations were several with Guido Penosi, a drug dealer who worked with both the Gambino and Lucchese families. Conversations between the two referenced Wayne Newton.

By 1965, Newton had become a nationally-recognized entertainer. In the early 1970s he reportedly made sums that exceeded $300,000 a week for his shows. People Magazine' called him "the most successful performer in Vegas history" and Newsweek said he was "the undisputed king of Las Vegas."

Newton knew Guido Penosi since the 1960s when he performed at the Copacabana Club in New York. Penosi warned people at the club to "stay away from the kid" because he's "mine."^[9] Newton and Penosi became close friends, with Newton flying his band to Los Angeles to perform for Penosi's son, without pay. As a felon, the law required Penosi to register with the Las Vegas police if he visited Las Vegas; however, Newton called the police as a favor so Penosi did not need to register.

Newton turned to Penosi for help in 1980. Newton pulled his money out of a Las Vegas tabloid named Backstage, and co-investors demanded Newton pay them money they felt he owed them. A fight broke out between Newton and the two men, and they contacted an organized crime figure to harass Newton and Newton's daughter. The Las Vegas police were unable to stop the threats, so Newton turned to his friend Penosi.

Penosi had Newton call his cousin, Piccolo. At a Genovese family "sitdown" in the Bronx, it was agreed the threats would stop. They did.

Around the same time Newton's business advisor and friend, Mark Moreno, also began receiving threats. Newton sent Moreno to Penosi, who sent him to Piccolo. He was told a sitdown was needed. Moreno himself said he thought that meant he would be "the center of discussion in a room filled with a lot of mob people."^[10] It was agreed Penosi would personally pay $3,500 to end the threats, which they did.

Piccolo then wanted to earn money off the Newton and Moreno favors. He pressured Moreno to buy life insurance for Lola Falana, a Las Vegas entertainer managed by Moreno. Moreno told Newton about the insurance scheme and how he was pressured as a "quid pro quo, as a favor" for the help Piccolo had given him and Newton.

The Case

NBC broadcast a report in October 1980 entitled "Wayne Newton and the Law" about Newton's purchase of the Aladdin Hotel and Casino, asserting that Penosi and Piccolo had financed the deal in exchange for a hidden share in the hotel.^[11] On April 10, 1981, Newton filed a libel claim against NBC. Said Abrams, "Discovery in the case—pretrial depositions, motions, and the like—was brutal."^[12] Newton hired lawyer Morton Galane. According to Abrams, as opposing counsel Galane made "each aspect of the proceedings a trial of its own. I have never taken part in a case in which I disliked opposing counsel more or thought he had misbehaved more often." There was no amicable relationship between counsel in this case. Galane reportedly screamed at even the most inconsequential of witnesses, and he charged Abrams with "signaling" Ross, one of the principal defendants. Ira Silverman abruptly stalked out of the court in the middle of testimony because of Galane's tactics.

When Penosi arrived for his deposition, he was open-shirted, with gold chains and dressed "like someone involved in organized crime", wrote Abrams.^[13]

Abrams lost in what was then the largest jury verdict against the press in American history.^[14] Newton received $7.9 million for loss of past income and $1,146,750 for loss of future income; $5 million for damages to his reputation; and $225,000 for pain and anguish. The jury also found the journalists Ross and Silverman "harbored ill will or hatred toward [Newton] and intended to injure him" and therefore awarded an extra $5 million in punitive damages. The total was $19,271,750 from the jury, with prejudgment interest of $3,485,523, for a total of $22,757,273.80 entered as judgment by the jury. "Judge Crocker was stunned by the amount", wrote Abrams.

Crocker later reduced the award to $5.2 million. Abrams argued an appeal in front of the United States Court of Appeals for the Ninth Circuit on April 13, 1990, which overturned the award in August 1990. The court found "almost no evidence of actual malice [in NBC's reporting on Newton], much less clear and convincing proof."^[11]

The Heroin Trail

In the Heroin Trail case, Abrams represented New York Newsday. The Long Island paper had researched and printed a series of thirty-two articles entitled The Heroin Trail. It was an ambitious project: the publisher and senior editors wanted to follow Heroin trafficking from "the poppy fields of Turkey to the veins of Long Island kids."^[15] The series won Newsday a Pulitzer Prize Gold Medal for public service.

In an exhaustive account published February and March 1973, over three hundred people in Turkey, the United States and Europe were described as heroin traffickers. One man in particular—Mahmut Karaduman, a nightclub owner in Istanbul—was described as specializing in smuggling via a route through the Black Sea, dividing his time between villas in Switzerland and Lebanon. Of all the people listed, only one person ever filed a lawsuit: Karaduman.

The case languished in the New York courts for years. New York vigorously enforces a law that libel actions must be filed within a year of publication of the story leading to the suit. Karaduman filed too late; he had only learned of the articles in the spring of 1974. In 1980 it was resurrected by the New York State Court of Appeals. The court held that since the New American Library had republished the article in a book that fell within the 1 year bright-line rule of when the original action was brought, the claim could proceed. But it moved "glacially" until the trial finally began in June and July 1986.

The trial lasted through twenty-four days of testimony, with eleven days translated from Turkish. Newsday had not yet called a single witness when two jurors caused a mistrial when they told Justice Kenneth Shorter they could not continue to serve. "It was the stuff of Dickens: A colossal amount of time and money had been wasted with no result other than an order to begin all over again", wrote Abrams.^[16]

The aborted trial's transcript helped Abrams learn opposing counsel's strategy, and to master his own.^[17] Newsday had taken pains to ensure their journalists were accurate. Every name on their list of traffickers had been verified with top narcotics agents, including high-ranking Turkish officials. They had notes on everything and all of the reporters came across as competent at trial.

According to Abrams, Newsday had two major problems: 1) the journalists were dependent on their sources (nobody had seen a drug deal take place), which amounts to hearsay; and 2) the journalist's credibility was cast in doubt by some contradictory witness testimony. In the 1986 trial, Karaduman questioned whether the journalists had told the truth. He produced several important Turkish witnesses who would not corroborate their statements to the reporters; indeed, some denied ever meeting them. If this testimony were repeated, it would throw the credibility of the three American journalists into question who the jury believed would be central to winning the case.

Helen Whitney v. Victor Lasky

Helen Whitney was a prize-winning American Broadcasting Company producer and writer who in 1982 devoted half of a one-hour program (American Inquisition) to the impact McCarthyism had on Fairmont, a small West Virginia town. She focused on Luella Mundel, who chaired the art department at Fairmont State College. The narrator said in 1951 Mundel "was not a political activist, but had tastes, convictions about art, about religion, unfamiliar to these streets. And at a local American Legion seminar about subversives, she angrily stood to challenge what was being preached there. Her contract was dropped by the college. A state education official accused her of being a poor security risk. She then sued for slander, but in the trial that followed in Fairmont's courtroom, it was Luella Mundel and her right to speak freely, to be different, that wound up being tried."^[18]

"In presenting the case of Luella Mundel, an art teacher at Fairmont College in Fairmont, West Virginia. ABC gave the impression that Victor Lasky had been one of the accusers who had caused her to lose her job. Laskv [sic] was lured into giving ABC News an interview on the pretext that it wanted to talk to him about fighting communism in the 1950s and about the Americanism lectures that he gave for the American Legion. It also wanted to talk about the little people who were caught up in the controversy, such as Luella Mundel, who had been the subject of an article published in Harper's magazine." Accuracy in the Media, June 1983.^[19]

According to Accuracy in the Media, Lasky only had a "brief encounter" when he was one of several speakers at the seminar. Mundel criticized the speakers, of which Lasky was one.

Brooklyn Institute of Arts and Sciences v. City of New York

In 1999, the Brooklyn Museum of Art (also known as Institute of Arts and Sciences) planned to host the Charles Saatchi exhibition Sensation, which featured controversial art works by the Young British Artists. The museum was an independent organization which leased property from New York City, and received $7.2m a year in operational funding^[20] from the city, as well as other grants. Mayor Rudy Giuliani objected to the exhibition on grounds of decency and taste, and withdrew the public funding from the museum and moved to break the lease on the ground that the museum wasn't following its mandate. Abrams argued on First Amendment principles that, having funded the museum, it must continue to do so without interfering it its freedom of speech in selecting what to exhibit.^[21][22]

Judge Nina Gershon ruled in favor of the museum,^[23] and required the City to resume its funding on the same basis as previously.^[24]

Campaign Finance Reform

Many liberals were upset at Abrams when he and Kenneth Starr successfully challenged the McCain-Feingold campaign-finance-reform as a violation of the First Amendment.^[25]

The Washington Post issued the following criticism:

"Unfortunately, Abrams is far more fair-minded where the argument against a free-speech claim is weak than he is where it's compelling. In the one case that he describes in depth in which the policy interest opposite the free-speech claim was strong enough to prevail – the campaign-finance case – Abrams does not do justice to the other side's arguments.... nowhere does he simply and candidly lay out the case for the other side: the explosive growth of "soft money" throughout the last two decades, the ads it funded and the way it eviscerated Congress's early 1970s campaign-finance law. Nor does he describe the voluminous record that his courtroom foes amassed in support of the statute. Indeed, based on his description, the naive reader would have a good deal of trouble understanding exactly what McCain-Feingold required, let alone how any court could have imagined upholding it." The Washington Post's Book World.^[26]

Financial Crisis

In September 2009, Floyd Abrams lost a case where he defended Standard & Poor's from allegations of fraud in their ratings of sub-prime mortgages. The argument used was that regardless of the financial basis for their ratings, the ratings qualified as "free speech" under the First Amendment. U.S. Judge Shira Scheindlin ruled that the first amendment did not allow the companies to freely commit fraud because their ratings provided to private investors were not "matters of public concern."^[27]

References