A balance between free speech and fear

Anthony Lewis follows the history of First Amendment protections.

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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.”

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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.

As Lewis’s historical overview makes clear, fear (of communists, terrorists, foreign enemies, etc.) has always bred official repression. In 1798, President John Adams made “malicious writing” against the US government a crime. Not surprisingly, the law was applied against Adams’s political opponents from the Republican Party. The American public reacted by voting Adams out of office, electing Republican Thomas Jefferson president in 1800.

During World War I, President Woodrow Wilson signed legislation making it a crime to speak out against the draft or the government. Even the most innocuous utterances were subject to prosecution. The McCarthyite 1950s witnessed official and unofficial repression based on widespread fear of communism.

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.

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