Free speech: a legal tradition as literature

HARRY KALVEN's ``A Worthy Tradition: Freedom of Speech in America'' (Harper & Row) is about the First Amendment, but it is written so well that one of the author's colleagues was moved to call him ``the T.S. Eliot of the law.'' Professor Kalven, who passed on 14 years before his book was published, is steadily analytic as he cites the cases that have defined the limits of free speech in America. But the book also contains moral tales. Some concern questions of law. One is about Kalven's son, Jamie, who rescued and completed the unfinished manuscript.

As Harry Kalven writes, legal cases are more than abstract intellectual battles. They frequently inflame passions on both sides of the political spectrum. The First Amendment, he points out, has protected speech by both the Ku Klux Klan and great newspapers. Kalven is not indifferent to the irony.

In a recent interview, Yale law professor Owen Fiss compared Kalven to the poet Eliot partly for his ability to write lively commentary against an abstruse philosophical backdrop. Indeed, Kalven describes old cases as if they were yesterday's news - a quality he brought to the classes he taught at the University of Chicago Law School. ``This is a unique book,'' says Fiss says. Besides being a legal text, ``It is like a work of literary criticism.''

Others have also praised it. Benno Schmidt, president of Yale and a First Amendment authority, called the book ``indispensable for anyone who seeks to understand freedom of expression in America.''

Secretary of State George Shultz sent a copy to Soviet Foreign Minister Eduard Shevardnadze. ``So now that the Russians tell us they are for glasnost, I thought it might be salutary for them to see what openness and free speech really mean,'' Shultz wrote to Jamie Kalven in a letter.

The meaning, of course, is rarely clear cut. More than most areas of law, the First Amendment resists capsulization in theory; every case provides a different challenge to the courts. In the areas of obscenity, libel, and subversive advocacy, the limits of protected speech have been moved forward or backward, for good reasons, and sometimes (in the author's view) bad ones.

Kalven freely critiques judicial opinions. He discusses an opinion in which Justice Oliver Wendell Holmes was a firm defender of free speech. In Abrams v. the United States, the convictions of a group of Bolsheviks were upheld by a Supreme Court majority. Harry Kalven comments that Holmes's dissent in this case is at first ``confused.'' But the justice gets to the nub of the issue in a passage that ``alchemizes the muddled opinion into durable gold.''

It was partly the literary possibilities of this book that brought Jamie Kalven home to Chicago in 1975 to undertake its completion. He was 26 years old at the time and at work on more far-flung interests, such as traveling and writing about Asia. He understood that the unfinished manuscript would require several years.

The task became an intensive education both in the law and in editing. Some chapters had been fully realized by Harry Kalven; others were sketchy, a few only titles on a general outline. In completing the book, the younger Kalven worked closely with Fiss, a constitutional scholar. He even used the class notes of some of his father's former students.

More than anything, the project became an interesting opportunity to resume a dialogue with his father. They were close, ``but most of what I now know of his qualities of mind and heart'' came in finishing the book, he says. Some chapters were written entirely from scratch, always with a faithful ear for his father's voice. In his afterword, Jamie writes of the ``denial of death through language'' in forming a new relationship with his father through his manuscript.

The project was made possible by several grants over the 14 years it took - as well as by Jamie Kalven's ``passion for endurance tests.'' He is a former long-distance runner and mountain climber.

Kalven says that his most important reward was that it deepened his understanding of tradition. Traditional loyalty between father and son was crucial in completing the long project. Ultimately, it gave the son, still a non-lawyer, a full career writing about the First Amendment and civil liberties.

Not incidentally, tradition is the overriding theme of the book. The First Amendment has undergone an endurance test of its own. The limits of free speech are continually challenged. But the constant willingness of the courts to reconsider the issue ``is a sort of discipline of freedom,'' Jamie Kalven says.

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