A balance between free speech and fear

Anthony Lewis follows the history of the First Amendment protections.

from the January 8, 2008 edition

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The World War I-era repression of political dissent, Lewis explains, allowed two Supreme Court justices, Oliver Wendell Holmes and Louis Brandeis, to begin formulating the meaning of the First Amendment. Lewis quotes all the relevant case law, skillfully exploring the evolving interpretation of free speech. In Schenck v. United States, Justice Holmes explained that free speech should be protected unless it creates "a clear and present danger" of bringing about "substantive evils."

Lewis goes on to explore the most difficult question of all: How do we balance the rights of free speech when they conflict with other values, such as national security, the right to privacy, and the right to a fair trial? In the 1971 case of New York Times v. United States, Lewis believes the Supreme Court was right to rule in favor of the newspapers that had published secret documents about the Vietnam War. Yet Lewis saves much of his healthy skepticism for the press itself, asserting that constant media scrutiny of people's private lives does not deserve the same protection as press scrutiny of government. While the Madisonian function of the First Amendment might be served by exposing Pentagon corruption, it may not be best served by the exposure of Tom Cruise's wedding photos.

Lewis bemoans the loss of privacy exacerbated by new technologies such as cellphone cameras and the Internet. He sees a coarsening of public attitudes about privacy: "Nowadays," writes Lewis, "it is hard to imagine any revelation so intimate that it would offend the public's sense of decency." He approvingly quotes Justice Brandeis's defense of "the right to be let alone."

Lewis blends a profound understanding of First Amendment jurisprudence and history with an enjoyable writing style that his readers have long come to admire. In our war-torn era where dissent and open-minded debate have become problematic, Lewis compels us to remember the crucial function free speech serves in our democratic form of government.

• Chuck Leddy is a member of the National Book Critics Circle and writes frequently about American history.

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