Freedom for the Thought That We Hate: Tales of the First Amendment

You might figure that decades spent examining government would turn a fellow into a dejected cynic. Thus, it is heartening that Anthony Lewis, the longtime New York Times Op-Ed page columnist and veteran Supreme Court observer, still feels so much reverence for the federal government’s judicial branch. Indeed, his reverence is not just heartening, it’s infectious. At a time when the judiciary comes under frequent attack, his latest book, Freedom for the Thought That We Hate, makes a compelling case that our much-maligned judges deserve credit for “many of the great advances in the quality — and decency — of American society.”

This short and lucid volume — which arrives more than 40 years after the author’s classic Gideon’s Trumpet, a history of Gideon v. Wainwright, the landmark case that established a criminal defendant’s right to counsel — has a simple question at its heart: where does the extraordinary freedom of thought and expression found in the United States come from? We all know that the First Amendment asserts that “Congress shall make no law…abridging the freedom of speech, or of the press.” But as Lewis shows, those words are not the end of the story but its beginning. Our understanding of these freedoms has evolved, and Lewis gives the Supreme Court pride of place in facilitating that evolution.

For proof that the process got off to a slow start, however, look no further than 1798’s Sedition Act, which criminalized “any false, scandalous and malicious writing or writings against the government of the United States.” Proponents argued that in the wake of the French Revolution, the legislation was necessary to prevent French terrorism on U.S. shores. (Exploiting fear of terrorism in order to erode civil liberties? Shocking!) During its brief life (it was never tested in the Court), 14 men were prosecuted under the Act; all were eventually pardoned by Thomas Jefferson when he became president.

Not until the 20th century did the Court begin to take up issues of freedom of speech and the press. During the 1920s, a series of dissenting opinions by Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis sparked what Lewis calls “a legal revolution.” They “had only two votes of nine,” he writes. “But their rhetoric was so powerful, so convincing, that it changed the attitude of the country and the Court.” In a measure of how far we’ve come, the cases Lewis summarizes are difficult to imagine today. In one, the Supreme Court upheld prison sentences of a whopping 15 and 20 years for four radicals convicted under 1918’s Espionage Act. Their offense? Distributing leaflets urging a general strike to protest Woodrow Wilson’s decision to send U.S. troops to Russia following the Bolshevik Revolution.

It was in his dissent in a 1929 case, United States v. Schwimmer, that Holmes, then 88 years old, coined the phrase that provides Lewis his title. Rosika Schwimmer was a Hungarian immigrant seeking U.S. citizenship, but she was also a pacifist, and as such refused to swear that she would take up arms to defend the nation, a requirement of citizenship at the time. As, ahem, a woman of a certain age, Rosika wouldn’t be taking up arms anytime soon, but citizenship was still denied her, and the Supreme Court upheld the denial. Holmes’s minority opinion argued, “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

By the next decade, a majority on the Court had begun upholding the Constitution’s free-speech guarantee, relying on Holmes’s and Brandeis’s arguments. “Giving concrete meaning to was a daunting, and endless, job,” Lewis writes. The remainder of the book describes the landmark cases that have both expanded the freedoms of speech and of the press and weighed them in comparison to other values, such as the right to privacy, the protection from hate speech, and the maintaining of national security.

One of the most fascinating (and the topic of an earlier book by Lewis) is 1964’s New York Times v. Sullivan, in which the Court overturned a successful libel claim from one L. B. Sullivan. Sullivan was a city commissioner in Alabama who had sued the Times after the newspaper published a pro?civil rights advertisement referring to unnamed “Southern violators of the Constitution.” The lower-court ruling, which awarded Sullivan a then-record $500,000 in damages, threatened to discourage the press from covering the civil rights movement. The Supreme Court’s reversal was the first to make libel a free-speech issue, and Lewis argues that it emboldened the press, now unencumbered by the specter of libel suits, to delve into civil rights, then Vietnam and Watergate, with portentous results.

Lewis is no free-speech absolutist: he notes that the downside of Sullivan is that “you can say practically anything about a public person without fear of having to pay damages.” He also rues the diminution of the right to privacy, citing the recent and shameful case of scientist Wen Ho Lee, wrongfully accused of being a spy, as an example. But the author is less troubled by an excess of freedom than by those instances when our First Amendment rights have been curtailed. “It is a seeming characteristic of American society that it is periodically gripped by fear — fear manipulated by politicians,” he notes. The Court has not always responded. There were those French terrorists of 1798, but also two American red scares, the WWII-era internment of Japanese Americans, and of course today’s war on terror (although its greatest civil liberties offenses, like torture, don’t fall under the First Amendment’s purview). As a former newspaperman, Lewis has harsh words for today’s press, calling it a “stenographer for official views” since 9/11.

So much of interest is packed into this slim volume. But Lewis’s most trenchant analysis goes back to his opening question. Why is the United States different? He charts the changing interpretation of our laws, yes, but he also makes a case for American difference in a way that avoids lapsing into exceptionalism. In 11 European countries, Holocaust denial is a criminal act, but unlike Europe, the United States hasn’t had to face atrocities on the level of the Holocaust. In reference to a Rwandan law that, following the massacre of Tutsis there, prohibits public statements that promote “divisionism,” Lewis asks, “Should we in America who have avoided such tragedies tell Rwandans that it is wrong for them thus to limit freedom of speech?” Given the troubled age we live in, these issues are likely to get thornier, making Lewis’s eloquent description of the First Amendment particularly apt: “t has been a drama since 1791, and it still is today: a tale without end.”