Mr. KASTENMEIER. Mr. Moorhead will be arriving later and perhaps he will have a statement. Our first witness today is this country's preeminent first amendment lawyer. Floyd Abrams is always on the cutting edge of first amendment law, from New York Times v. Sullivan to the Pentagon Papers case to current attempts to reform libel laws. He has been a frequent witness before the Judiciary Committee and before this subcommittee. We welcome the opportunity today to receive his views. I also understand that he will be prepared to join our first panel on the McCarran-Walter Act. We would be pleased to have him do So. Mr. Abrams, you are most welcome. You may proceed as you wish. STATEMENT OF FLOYD ABRAMS, ESQ., CAHILL GORDON & Mr. ABRAMS. Thank you, Mr. Chairman. I very much appreciate the invitation to appear here today. I will not read my entire statement. I can assure the Chair that I fully understand that I am the appetizer or the hors d'oeuvre of what is to follow today, and I'll try to behave that way. What I thought I would do, though, is to try to summarize what I think are a few of the basic principles which might guide this subcommittee and the Congress as it considers the issues that will be presented in the next 2 days. First, I think it is worth saying and saying again quite how unique we are as a country. The first amendment, I've often thought, is our most important export, just as it is our most important domestic protection against deprivation of freedom of speech or of the press. We are unique in that. Most countries don't believe it. Most countries think we are a little bit crazy for going quite so far in the direction we have towards protecting first amendment rights. You quoted earlier from Judge Learned Hand saying that our view was that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. I believe that the hearings that you will have in the next 2 days relate to areas in which we have been less than fully faithful to that affirmation of Americanism by Judge Hand; and, indeed, to areas in which we in the most profound sense have acted in an unAmerican fashion by limiting speech because of its content, by limiting speakers because of what they have to say, by limiting the spread of ideas because we disagree with them. It seems to me that three premises should underlie your consideration of the testimony today. First, as you observed, Mr. Chairman, it is the Congress, which is both the first and the last decisionmaker in this area; it is the Congress which should first pass upon constitutional issues as it determines what legislation it believes would best serve the public. And it is Congress which is free to take into account first amendment values, even in situations in which the Supreme Court has decided that those values may be outweighed by other considerations such as those rooted in national security. That's true about the McCarran-Walter Act; that's true about the Foreign Agents Registration Act; it is true about everything that you will hear about in the next 2 days. Second, I urge you to consider claims of national security and claims of harm to foreign relations when they are asserted against permitting a genuinely free exchange of ideas most carefully, and cautiously, and dubiously. I do not suggest to you that every such claim is either wrongfully made or, indeed, wrong. But I think our history is such as to lead to considerable caution by Congress as it listens to and considers claims of national security harm by allowing the American public to decide for themselves on the validity of information presented to them. There's a quotation-the only one I will read to you-in my prepared statement from Mr. Justice Holmes which I think is one of the best ones ever given in the first amendment area. Holmes, in a great case of the 1920's, said, "It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief; and if believed it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement of its birth. The only difference between the expression of an opinion and an incitement," Holmes said, "in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason." I quote Holmes to the committee because I think the concept identified by him of every idea being an incitement is one which has too often led those in power to draw just the wrong conclusions, and indeed, just the opposite ones drawn by Holmes. Our conclusion, historically and constitutionally, rooted in the first amendment, has been that even though speech can be dangerous, we choose the benefits of speech rather than the risks of the government repressing it unless those risks are so immediate and so grave and the likelihood of harm so sure that we simply cannot endure the risks. The final introductory observation I offer to you, and you mentioned this, Mr. Chairman, yourself, is that this is, or should be, a genuinely nonpartisan subject. Foreign visitors who Americans wanted to hear have been barred under the Carter, Reagan, and other administrations. I think Hodding Carter, who was involved in that in the Carter administration, put it well by saying that "government by nature is hostile to the idea that the Nation's health, and ultimately its liberty, depend upon vigorous, fully informed debate. "When the time comes to decide," Carter said, "any government more often than not comes down in favor of bureaucratic inertia, self-protection and the urge to hoard power, rather than for unfettered commerce in the marketplace of ideas." My statement refers to the fact that the Jefferson who wrote that if he had to choose between government without newspapers and newspapers without a government would unhesitatingly prefer the latter was the revolutionary Jefferson; he was not in power. The Jefferson who was in power was the one that wrote that a few States' seditious libel prosecutions would do the press a lot of good. That shouldn't be a surprise, really, nor should it really be a surprise that the President in power when Eugene Debs was jailed was Woodrow Wilson-the President who pardoned him was Warren Harding. These are not, or should not be, partisan issues, nor I think should they be even issues which divide liberal and conservatives as traditionally defined. The author of the justly remembered judicial observation that one man's vulgarity is another's lyric was that great conservative pillar of the Supreme Court, John Marshall Harlan. And the author of the magisterial opinion for the Supreme Court all but totally barring prior restraints on the press in our history was Charles Evans Hughes. We have no idea today-none-whether we'd do better to characterize him as a liberal or a conservative. My final thought, and I skip over that portion of my prepared statement which deals with the legislation in effect-my final introductory thought to you is that what is ultimately at least as important as what legislation we have on the books is the spirit with which the Government decides how to use the power it has. One of those powers under current law is to ban certain foreign leaders from appearing here; the power used to prevent the American Society of Newspaper Editors, at its convention a few weeks ago, from hearing from Fidel Castro and Daniel Ortega. There were, and undoubtedly are, foreign policy reasons seriously proffered by the Secretary of State which underlay those decisions. And Secretary of State Baker certainly makes a serious point when he urges that the denial of these as to such officials is a discretion Federal Government should have. The question is, how should that discretion be used? And a part of the answer, it seems to me, is that there is a cost, a real cost, in depriving Americans of the chance to make their own decisions in what it is Mr. Castro and Mr. Ortega would have had to have said. I started my statement, as you started yours, Mr. Chairman, by referring to Learned Hand's statement that we presupposed as a people that right conclusions were more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. The question I urge on you to be considered throughout these hearings is whether we mean that. I hope we do. Thank you, Mr. Chairman. Mr. KASTENMEIER. Thank you very much, Mr. Abrams, for that opening statement. SUMMARY OF TESTIMONY OF FLOYD ABRAMS Most countries do not begin to believe that they can however slight it might be - of or should endure the risk different ideas or what they view as disagreeable ideas; in fact, they easily equate different ideas with dangerous ideas. Our view, historically and constitutionally, has been far more protective of free expression. Today's hearing deals with a number of areas in which we have been less than fully faithful to our history. In fact, we deal with areas in which, in the most profound sense, we have acted in an un-American fashion based upon its content, by limiting speakers based upon what they have to say, by limiting the spread of ideas because we disagree with them. this area. by limiting speech Two premises should guide Congressional oversight in First, Congress should recognize that it is free to take into account First Amendment values as it chooses, even if the Supreme Court has decided that those values can be outweighed by other considerations, such as those rooted in national security. Second, Congress should view claims of national security with care, caution and skepticism. The core issue is this: why should the American people be denied the chance to decide for themselves who to hear and who to believe? STATEMENT OF FLOYD ABRAMS I appreciate the opportunity to appear here today at this most valuable hearing. The topic you have chosen to explore free trade in ideas - - - is one which is at the very heart of this nation's uniqueness in the world. Most countries do not begin to believe that they can or should endure the risk however slight it might be of different ideas or what they view as disagreeable ideas; in fact, they easily equate different ideas with dangerous ideas. Our view, as embodied in the First Amendment, was eloquently summarized almost 50 years ago by Learned Hand as presupposing "that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection." Today's hearing deals with a number of areas in which we have been less than fully faithful to that affirmation of Americanism by Judge Hand. In fact, we deal with areas in which, in the most profound sense, we have acted in an un-American fashion by limiting speech based upon its content, by limiting speakers based upon what they have to say, by limiting the spread of ideas because we disagree with them. It seems to me that three premises should underlie your consideration of the testimony today. First, you are the first and last decision-makers about the topics to be considered in this hearing. It is Congress which should first |