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Zachary J. Lechner: Review of Anthony Lewis's Freedom for the Thought That We Hate: A Biography of the First Amendment (Basic Books, 2008)

Source: Special to HNN (8-1-08)

[Zachary J. Lechner is a Ph.D. candidate at Temple University .]

Freedom for the Thought That We Hate: A Biography of the First Amendment is part of Basic Books’ “Basic Ideas” series in which “a leading authority offers a concise biography of a text that transformed its world, and ours.” The authority here is Anthony Lewis, law professor, former New York Times columnist, Pulitzer Prize winner, and author of the bestselling 1964 classic Gideon’s Trumpet and the 1992 work Make No Law: The Sullivan Case and the First Amendment.

Writing for a popular audience, he makes no great revelations in this new book, though drawing on judicial opinions and secondary scholarship, he offers a concise, useful volume on one of Americans’ most cherished and misunderstood legal rights.

Lewis delineates his main argument over the course of twelve chapter essays on the judicial history of the First Amendment. He asserts that the amendment did not arrive fully articulated when the Framers added the Bill of Rights to the proposed Constitution in 1787. Rather, its meaning took shape over time through a series of Supreme Court rulings. Not until 1931 did the Court invoke the amendment in order to protect free expression. The First Amendment “has no discernable history,” Lewis explains, meaning that justices have no record of the Framers’ intentions. So calls for original intent hit a dead end. Lewis focuses mainly on judges, who, he maintains, are influenced by their social surroundings when rendering decisions. He also writes about the significance of other actors—political leaders and citizens—in driving debates about the First Amendment. Judges function as the heroes in Lewis’s book, but he emphasizes that they have frequently ignored or upheld legislative and executive challenges to the right of Americans to think and express themselves.

Lewis opens by chronicling the way dissent was repressed in sixteenth and seventeenth-century England and in colonial America. One of the major instruments was seditious libel, which criminalized publications critical of either the church or the state. Leaders reasoned that such writings would demean authority and rupture the bonds of civil society. Over the first four chapters, Lewis ably charts the historical controversy over seditious libel. In a nation guarded by freedom of expression, this restriction seems incompatible. President John Adams and the Federalists used the concept as justification for the Sedition Act of 1798. This legislation enabled them to fine and imprison their political enemies. The American voters in the “Revolution of 1800,” not the Supreme Court, Lewis clarifies, nullified this legislation. Similarly, in a context of war and fears of Bolshevism, justices upheld the Espionage Act of 1917 and the Sedition Act of 1918. The Supreme Court in fact did not put the issue of seditious libel to rest until its ruling in New York Times v. Sullivan in 1964.

Lewis describes the importance of Justices Oliver Wendell Holmes, Jr. and Louis D. Brandeis in pushing the Court to sustain the constitutional guarantee of free speech. Between 1919 and 1929 they issued a series of groundbreaking dissents. These laid the path for the Court’s later rulings protecting freedom of expression. The decision in the case of Stromberg v. California (1931) marked the first time the high court struck down a statute on the foundation that it violated the First Amendment. The Court, Lewis states, determined “that free speech was a basic American value, that repression was not to be tolerated to prevent some dim and distant bad tendency.”

The outcome of New York Times v. Sullivan further emboldened defenders of free expression. Seditious libel was dead. No longer could Americans be imprisoned for criticizing a political leader. Common law had compelled defendants to prove the truth of their claim. The judiciary reversed this difficult burden. It now required the plaintiff to prove the falsity of a claim as well as the defendant’s knowledge of the untruth. The Court made an even larger statement in Sullivan. “What had always been a matter of state law,” Lewis points out, “became, in most cases, a subject that turned on federal constitutional law.”

Specifically, the Sullivan decision empowered the press to report freely on the civil rights movement. In subsequent topical chapters, Lewis devotes considerable attention to press freedom and judicial discussions regarding how far that freedom should be extended, especially when it infringes on personal privacy. The Court, however, has refused to allow the press to use truth as an unmitigated defense against privacy interests. Lewis calls for balance. He sides with the late Justice William J. Brennan, Jr., who located the central meaning of the First Amendment in the right to censure the government, not to print anything and everything about non-political figures. Indeed, Lewis is apprehensive about a press that joins with the government to invade citizens’ privacy. Ultimately, he believes, a free society necessitates a compromise between freedom of expression and the right to privacy.

Lewis further details the intersection of journalism and freedom of expression with a penetrating analysis of press privilege. In the Branzburg v. Hayes (1972) decision, the Supreme Court determined that journalists could not invoke the First Amendment to avoid having to testify before a grand jury. The ruling denied press privilege, and the Court has subsequently refused to revisit the issue. Nevertheless, journalists continue to claim special protections under the First Amendment.

Lewis asserts that the Framers surely did not equate “journalists” with “the press,” as professional journalism as we know it today did not exist in the eighteenth century. “The press” probably encompassed publishers of pamphlets, books, and newspapers. Lewis takes a middle-ground position on whether or not journalists can be required to reveal their sources. The notion of “qualified privilege” was outlined in 2005 by David Tatel, a United States Court of Appeals judge for the District of Columbia Circuit. Elucidating Tatel’s position, Lewis writes,

[C]ourts should balance the interest in compelling discourse, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value. Thus, for example, if the government wanted to learn who leaked the story of President Bush’s order for wiretapping without required warrants, a court would weigh the harm caused by that leak against the importance of the information to the public. In my view the latter would plainly prevail, and the reporters would have a privilege not to disclose their sources.

This moderate stance, Lewis contends, would usually but not always shelter the press. He describes the 2003 contempt proceedings against Judith Miller of The New York Times and Matt Cooper of Time. Both journalists cited press privilege in refusing to identify the person who leaked to them covert CIA operative Valerie Plame’s identity. Based on qualified privilege, and in this instance, Lewis convincingly and succinctly defends the public’s right to know. It is a good example of his nuanced consideration of the First Amendment’s guarantees and their social ramifications.

Before returning to the subject of the press, Lewis devotes chapters to obscenity and to the use of fear to suppress free expression. The federal government, he writes, has often justified interferences with civil liberties and the First Amendment as necessary wartime measures. In contrast, he describes the Vietnam War-era Court’s more vigorous protection of civil liberties. We are left to wonder why the justices defended the First Amendment in this conflict and not others.

My question points to the major drawback of Freedom for the Thought that We Hate—the author’s failure to rely adequately on social and cultural contexts for each case. Lewis certainly indicates, as any good textbook would, for example, the political expediency behind the Alien and Sedition Acts and the Cold War culture in which the 1950s courts functioned. It is common sense that Supreme Court cases and decisions are products of their times. In the introduction, Lewis suggests that he will go beyond this truism. He states that “great judges” recognized the broad social benefits of free expression, yet he insists, “judicial commitment to openness of expression grew as citizens’ did; each informed the other.” I’m intrigued by this idea, but Lewis is short on examples.

Furthermore, he leaves significant questions unanswered: How do judges’ political orientations influence their legal outlooks? (Surprisingly, Lewis generally ignores this important dynamic.) When are judges merely the products of their times, and when do they break free of prevailing societal constraints? And most essential: In terms of judges, the press, and other non-judicial actors, who influences whom, and when, and why? Perhaps in the introduction Lewis simply should have avoided making an argument about legal change and the public. Such an investigation would necessitate a complex weaving together of legal, social, and cultural history. In such a short survey, with so much territory to cover, that is a tall order for even as gifted a legal scholar as Lewis.

This criticism aside, strong insights abound in Freedom for the Thought That We Hate, particularly in the final chapters. Lewis explores hate speech, balancing freedom of the press with a fair trial, free speech and political campaigns, and the role of the press in a democratic society. He savages the post-9/11 media’s failure to ask the Bush Administration tough questions on torture and the imprisonment of suspected terrorists without trial. He portrays journalists as seduced by power; they are a pale reflection of the fiercely independent and skeptical men and women who distinguished their profession during the Vietnam and Watergate years. Although he maintains his disappointment with the contemporary media, Lewis does acknowledge its close scrutiny of the recent wiretapping controversy, which helped journalists break free of their “deferential” point of view.

Many readers will share his concerns. They may find some of his other opinions more problematic. For instance, Lewis calls for restrictions on exhortations of terrorist violence. The Supreme Court has protected speech unless it involves incitements to violence that pose an imminent threat. “I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging,” the author reasons. "That is imminence enough.” As with many free expression controversies, there is no easy answer.

While one can disagree with Lewis’s various stances on First Amendment issues, there is no denying his larger claim that “the freedoms of speech and of the press have never been absolutes.” They evolved over time to occupy a central place in the American constitutional law. Lewis concludes that above all else the First Amendment demands bravery from the press and judges. The judiciary, despite notable exceptions, has pushed American society in a progressive direction, forcing it to live up to its constitutional ideals—pay no mind, he advises, to the misguided critics of “activist” courts. The courage and openness demanded by free expression are, for Lewis, indispensable to the proper functioning of a democratic society. His short study of the First Amendment’s history reminds us of the malleability of its fourteen words and their need for vigilant safeguarding.

Posted on Friday, August 1, 2008 at 6:07 PM | Comments (0) | Return

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