In this year's selection of best books, The Economist chose Anthony Lewis's Freedom for the Thought that We Hate for providing a "concise and wise presentation of the history and scope of freedom of thought in the United States, with conclusions that are well worth pondering."
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.
Throughout his long career as an author and a reporter and columnist for The New York Times, Anthony Lewis has been one of the most inspiring advocates of a heroic view of the American judiciary. Each year I read aloud to my criminal procedure students the final paragraphs of “Gideon’s Trumpet,” Lewis’s definitive account of the 1963 Supreme Court case that recognized a constitutional right to court-appointed counsel. They never fail to bring a lump to the throat — at least to mine. In his new book, “Freedom for the Thought That We Hate,” Lewis offers a similarly heroic account of how courageous judges in the 20th century created the modern First Amendment by prohibiting the government from banning offensive speech, except to prevent a threat of serious and imminent harm. “Many of the great advances in the quality — the decency — of American society were initiated by judges,” he writes. “The truth is that bold judicial decisions have made the country what it is.”
It’s easy to see why Lewis came to view judges as brave protectors of First Amendment rights: he covered the Supreme Court during the Warren era, when the modern First Amendment took shape, and he recalls Justice Felix Frankfurter’s showing him an eloquent 1929 dissent by Justice Oliver Wendell Holmes Jr. that defended the free speech rights of Quakers and pacifists and that inspired the title of this book. “When I came to the final paragraph,” Lewis says, “I felt the hair rise on the back of my neck.” But this is not a comprehensive narrative history of the development of the modern First Amendment; Lewis already provided that in his 1991 book, “Make No Law.” Instead, it is a passionate if discursive essay that ranges across a variety of free speech controversies — from sedition and obscenity to hate speech and secret wiretapping. This may seem like winner’s history, but the victories Lewis celebrates remain controversial. There are persistent voices, in Europe and America, that continue to argue for suppressing hate speech on university campuses, for example; Lewis rightly applauds the fact that American courts have rejected their arguments.
Still, the most surprising and provocative occasions are those when Lewis himself departs from civil libertarian free speech orthodoxy. He is not, it turns out, a fan of an unqualified federal shield law that would protect reporters from the obligation to reveal their anonymous sources in criminal cases. The press “is not always the good guy,” he writes, citing its support for the unjust prosecution of the atomic scientist Wen Ho Lee, and he praises judges who balance the costs and benefits of protecting anonymous sources in each case. He criticizes the Supreme Court for extending its most stringent protections in libel suits not only to government officials but also to movie stars and other temporary celebrities. He would allow citizens to recover damages for certain invasions of privacy when editors and reporters are “negligent in making their mistakes, rather than what is harder to prove,” when “their falsification was deliberate or reckless.” And, in the wake of the London bombings of July 2005, he would allow the prosecution of “speech that urges terrorist violence to an audience some of whose members are ready to act on the urging” — without the need to prove a risk of imminent danger, as current United States law requires.
All of Lewis’s proposals reflect his faith that the judiciary is well equipped to balance the value of free speech against other values (like privacy and national security) in a thoughtful and independent way. But is he too optimistic? There is a competing, decidedly less heroic account of First Amendment history, which holds that judges have always tended to reflect the public’s prejudices about unpopular speakers, and that most advances for free speech have been initiated not by judges, as Lewis argues, but by political activism. It was abolitionists, in the 1830s, who first argued that Southern states shouldn’t be able to ban antislavery tracts because of the remote possibility they might provoke an insurrection; the Supreme Court took another 130 years to enshrine the underlying principle into law. Similarly, the court began to protect political dissidents like Communists and Ku Klux Klan members in the late 1960s, not in the 1920s and 1950s — that is, only when they were no longer perceived as a serious threat by national majorities.
Lewis’s faith in judges also presumes that free speech controversies will take the same form in the future as they have in the past — namely, as legal battles between an overreaching government and the institutional press, with the judiciary as a neutral arbiter. But is this really likely? The rise of new technologies suggests that the free speech battles of the future may instead pit telecom corporations against private speakers, leaving judges on the sidelines. Consider Verizon’s recent decision to block abortion rights text messages by Naral Pro-Choice America from its mobile networks. (Under pressure, Verizon rescinded the decision but stood by its position that it can decide which messages to transmit.) As several scholars have argued, the solution to this problem of corporate censorship — open-access rules of “net neutrality” that would require telecom operators to make their services available to all speakers on equal terms — is in the hands of Congress and the Federal Communications Commission rather than the courts. No matter how heroic our judges, they’re not well positioned to make regulatory policy.
Two-time Pulitzer Prize winner Anthony Lewis is among the great American journalists of the past half century. His coverage of legal issues for The New York Times, where he was a columnist for 32 years, along with his bestselling books (including "Gideon's Trumpet"), have made him one of the most popular commentators on American law.
In his wonderfully accessible and passionate new book, Freedom for the Thought That We Hate, Lewis looks at the long history of free expression in the United States. As the author notes again and again, that history has been a troubled one. American presidents, from John Adams to George W. Bush, have reacted to crisis and fear with repressive measures that have shut off dissent and quelled the open expression of unpopular opinions.
Lewis begins with the text of the First Amendment: "Congress shall make no law ... abridging the freedom of speech or of the press...." He examines the purpose of these words, and repeatedly cites James Madison, the father of the Constitution, who believed that a free press and an informed, vocal public would help keep governmental power in check. This "Madisonian" ideal of holding government accountable for its actions, writes Lewis, "tells us why Americans should scent danger when a government tries to stop a newspaper from disclosing the origins of an unpopular war ... or accuses a newspaper of endangering national security by disclosing secret and illegal wiretapping."
Without an open debate where unpopular ideas can be expressed, Lewis notes, the public and press simply become cheerleaders for the government: if, as the fairy tale goes, the emperor has no clothes, there will be nobody willing to point out this inconvenient truth. Indeed, Lewis blasts the press for submissiveness after the 9/11 terrorist attacks. "[T]o criticize the president in the atmosphere of [post 9/11] fear could seem unpatriotic," writes Lewis, but without the press effectively fulfilling its watchdog function, the public risked being "sold" a war in Iraq based on faulty premises.
The First Amendment’s injunction that “Congress shall make no law... abridging the freedom of speech, or of the press” seems cut and dried, but its application has had a vexed history, according to this lucid legal history, Lewis’s first book in 15 years (after Make No Law and Gideon’s Trumpet).
A superb history of the First Amendment and the body of law that has followed it.
Pulitzer Prize–winning journalist and longtime Supreme Court observer Lewis (Make No Law: The Sullivan Case and the First Amendment, 1991, etc.), now retired from the New York Times, explains in the clearest of language how freedom of expression evolved in this country. Surprisingly, it was only in 1919 that a Supreme Court justice (Oliver Wendell Holmes) wrote that the First Amendment protected speech and publication, and that was in a dissent—not until 1931 did a majority on the Court begin enforcing the constitutional guarantee of freedom of speech. Drawing examples from many cases, Lewis demonstrates that interpretations of the First Amendment shifted over time as the Supreme Court, and the public, began to recognize that freedom of expression was one of America’s basic values. He considers the ways in which freedom can conflict with such other values as the right to privacy, protection from hate speech, the safeguarding of national security and the right to a fair trial (i.e., one uncompromised by prejudicial press coverage). He also explores the evolution of laws against libel here and in Great Britain and reports on the impact of the landmark 1964 case, New York Times v. Sullivan, which ended the press’s fear of seditious libel actions and promoted the investigative spirit that led to critical coverage of the Vietnam War and Watergate. Anecdotes abound in this lively, lucid history. Among other choice bits, readers will learn which Supreme Court Justice viewing films for their possibly pornographic content took a law clerk with him to tell him what was happening on the big screen.
Timely and important, a work that astonishes and delights as it informs.
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