Anthony Lewis' Freedom for the Thought That We Hate in Harvard Magazine

Book Review
Freeing Speech
How judge-made law gave meaning to the First Amendment

by Richard H. Fallo, Harvard Magazine. May-June 2008

Freedom for the Thought That We Hate: A Biography of the First Amendment offers a lucid and engaging overview of American free-speech law. The former Nieman Fellow has twice won the Pulitzer Prize, and this volume puts the skills that earned him those accolades much on display. Again and again, he brings to life the dramatis personae in leading cases, plucks out moving or telling quotations, and explains who won and who lost in order to provide a clear introduction to First Amendment doctrine.

Lewis ’48, NF ’57, styles the book “a biography.” In fact, it is more nearly a history in which unfolding events are presented as teaching by example—sometimes positive and sometimes negative example. He begins by sketching the hated traditions of British censorship against which the American ideals of free speech developed. By the late eighteenth century, various state constitutions included guarantees of freedom of the press. When the Constitution of the United States that emerged from the Philadelphia Convention contained no bill of rights, there was widespread sentiment that the omission needed to be rectified. The first Congress thus drafted and the states ratified a Bill of Rights, the First Amendment of which guarantees that “Congress shall make no law…abridging the freedom of speech, or of the press.”

Interestingly, however, there is considerable uncertainty about what the Framers and ratifiers of the First Amendment understood it to protect. Accordingly, in Freedom for the Thought That We Hate, Lewis scrupulously avoids claiming that the “original understanding” of the First Amendment’s reach resolves contested cases that have come before the Supreme Court. First Amendment law, Lewis emphasizes, is almost exclusively judge-made law, nearly all fashioned in the past 90 years.

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