When I was a first-year student at the Yale Law School in 1956, I was deeply impressed when my torts professor, Fleming James Jr., to underline his point that in the old days one could be imprisoned for seditious libel (even if what one wrote was the truth), quoted I-don’t-know-who, saying:
Then up rose Lord Mansfield.
He spake like the Bible.
“The greater the truth, sir
The greater the libel!”
As Anthony Lewis makes clear in his elegant new book, Freedom for the Thought That We Hate: A Biography of the First Amendment, those days are gone forever. Although his approach is not legalistic, he thoroughly discusses the great libel cases, like Near v. Minnesota, which in 1925 established the principle that the First Amendment protects the press from prior governmental restraints on publication, and New York Times v. Sullivan, which in 1964 extended the principle of First Amendment protection to include subsequent-to-publication punishment (even if what one wrote was false–unless there was reckless disregard for the truth).
Lewis, who formerly from his perch on the op-ed page of the New York Times and currently as a contributor to The New York Review of Books has proved himself to be one of the most vigilant members of the commentariat on behalf of First Amendment values, is the bearer of glad tidings. Less a sounding of the alarm than a chiming of the liberty bell, his message is eloquent and clear. Despite the Bush Administration’s much-publicized assault on First Amendment values, “I am convinced, that the fundamental American commitment to free speech, is no longer in doubt.”
Although Lewis is unsparing in his inventory of this country’s various significant pre- and post-9/11 wounds to constitutional liberty, his argument is, in effect, that almost every time the government (or would-be private censors, for that matter) has crossed the free-speech line, history has pushed back. And why, he implicitly asks, should this time be any different? His faith is not undocumented. Even though his book is less a systematic “case for” than a compelling and lucid celebration of those fourteen little words (“Congress shall make no law…abridging the freedom of speech, or of the press”), his point is taken: “Again and again in American history,” he writes, “the public has been told that civil liberties must be sacrificed to protect the country from foreign threats”; yet again and again liberty denied has been followed by liberty restored.
By way of example, he tells us:
§ In 1798 Congress passed a bill making seditious libel a federal crime, punishable by fines of up to $2,000 and imprisonment for up to two years. (The law was said to be needed to protect the country from terrorism–French terrorism, no less, the fear being that the Jacobins would export guillotine justice!) On March 3, 1801, Congress allowed the law to expire.
§ In 1917 Congress passed the Espionage Act, and in 1918 the Sedition Act. They were followed by the infamous Palmer Raids and other instances of radicals getting rounded up in blatant violation of due process. Sauerkraut was rechristened “liberty cabbage,” and Eugene Debs, leader of the Socialist Party and five-time candidate for President, was convicted for a speech he made opposing conscription and World War I and sentenced to ten years in prison (from where he again ran for President). Three years later President Harding pardoned Debs, and by that time Justice Oliver Wendell Holmes, who had voted with the majority for Debs’s conviction, had restated his “clear and present danger” test (adding the crucial adjective “imminent”) and written a powerful dissent in Abrams v. United States. The defendants in that case were charged under the Espionage Act with printing leaflets intended to hurt the war against Germany. (“I believe the defendants had as much right to publish,” Holmes wrote, “as the Government has to publish the Constitution of the United States now vainly invoked by them.”) Eventually his “imminent danger” test would become the law.