indecency standard

Leading First Amendment attorney Floyd Abrams said that if leaker Edward Snowden is ever brought into a criminal court in the United States, a lawyer for Snowden might very well persuade a jury that his disclosure of the level of surveillance conducted on the American citizenry was in the public interest.

"If Mr. Snowden comes home some day, we'll have some interesting cases involving him," Abrams said during a talk given at the New York Law School tonight.

However, Abrams said that the U.S. Supreme Court is much less likely than it was during the Pentagon Papers era to let judges question the judgment of the U.S. Department of Defense and other governmental agencies that releasing national-security information would do great harm.

Abrams has worked on such First Amendment cases such as the Pentagon Papers in which historical information about the United States' military involvement in Vietnam was disclosed by Daniel Ellsberg; defending Al Franken from a trademark lawsuit brought by Fox News Channel over the use of the phrase "fair and balanced;" and Nebraska Press Association v. Stuart, in which the Supreme Court held that prior restraints on media coverage during criminal trials are unconstitutional.

Further, while Abrams praised Snowden for releasing information on the surveillance of Americans, he questioned the point of exposing the level of American spying on foreign leaders. 

While an ardent First Amendment proponent, Abrams said that he never thought that speech by hate groups like the Nazis has done any particular good. "Some speech does some real harm, but it's worth the price," he said.

Abrams also said First Amendment challenges could be successful in the right cases against  "ag gag" laws, which criminalize the undercover trespassing and subsequent exposure of practices at any facilities involving animals. The ideal test cases would be those involving journalists publishing information from their sources about alleged wrongdoing, he said. Journalists do not have the right to trespass, but the "statutes are so obviously designed not to protect property but to protect against revelation of confidential information," he said.

New York Law School Professor Nadine Strossen, who is a leading First Amendment advocate in her own right as the past president of the American Civil Liberties Union, said she would like to see the standards governing content for broadcast television changed.

Cases that were primed to challenge the harsher regulation that broadcast TV faces from the Federal Communications Communication over indecent material ended up not going anywhere, Strossen said. Those cases didn't involve "toplessness" or "bottomlessness," but four-letter swear words, she said. She also noted the irony that profanity like "shit" and "fuck" could be uttered in the highest court in the country but not on broadcast television. "The Supreme Court can say it but you can't say it over the air," Strossen said.

Abrams, who has represented many media organizations in his career, said that journalists are "best as truth-gatherers" and detecting when people are lying. But one of the greatest weaknesses of media organizations is trivializing important matters that the public is capable of understanding, he said.