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.
§ In 1944 President Franklin Delano Roosevelt ordered the internment of all Japanese-Americans in relocation camps solely because of their ethnicity. In 1976 President Ford called the relocation of the Japanese “a sad day in American history,” and twelve years later, President Reagan signed into law an act of Congress providing compensation for the survivors of the relocation program.
§ In the late 1940s and early ’50s the House Committee on Un-American Activities and the Senate Internal Security Committee, along with Joe McCarthy and various other investigators intent on purging the Red Menace from our movies, our schools, our churches, our government and our military, were riding high and riding roughshod over the First Amendment rights of reluctant witnesses. By the mid ’50s Senator McCarthy had been censured by his colleagues, and by the late ’70s HUAC and SISC were no longer in business. In a series of rulings the Warren Court (with Justices Hugo Black, William Douglas and William Brennan being its most articulate First Amendment elaborators) had reminded the country of what Lewis calls the Madisonian Premise–the right to dissent–which later informed the Court’s opinion in the Pentagon Papers case (and which most recently the New York Times invoked as the basis for disclosing secret and illegal Bush Administration wiretapping without warrants).
Nor is Lewis content to describe and predict. Like many prophets he also seems to feel the need to exhort, either in his own words or in those of others. Thus: “The highest duty of the press [is] to inform the public about its governors,” he writes, because, as James Madison himself put it, the people are sovereign; and as Justice Louis Brandeis wrote in 1927 in his dissent to Whitney v. California, in which the Court upheld the conviction of Anita Whitney for her role in establishing the Communist Party in California: “Discussion affords ordinarily adequate protection against the dissemination of noxious doctrine…. The fitting remedy for evil counsels is good ones.”
Moreover, Lewis urges the press to follow the injunction of the British columnist Bernard Levin of The Times of London, who in the 1980s dismissed the idea that the press’s obligation was to be “responsible” (in the English sense of commitment to the ideas and assumptions of the ruling class). “The press,” he wrote, “has no duty to be responsible at all, and it will be an ill day for freedom if it should ever acquire one…. We are and must remain vagabonds and outlaws”–we must continue “the pursuit of knowledge that others would like unpursued and the making of comments that others would prefer unmade.”
As it happens, for me Lewis’s credibility as an observer is enhanced by the fact that he does not number himself among the so-called First Amendment absolutists, like Justice Douglas. Rather, Lewis is a self-described balancer who finds that freedom of expression is often in tension with other values–the right to a fair trial, campaign finance reform, the right to privacy, the need to deal with hate speech and hard-core pornography and such. Whereas Justice Douglas, with whose view, I confess, I perhaps naïvely identify, considered the idea “that First Amendment rights are to be balanced against other needs or conveniences of government” to be “amazing,” Lewis believes with the late Justice Potter Stewart (and most sophisticated contemporary Court watchers) that freedom of the press is not an absolute; it “must give way under the Constitution to a paramount public interest in the fair administration of justice.”
Here I might add that along the way Lewis does not shy away from issuing opinions of his own: Thus, “The Minnesota decision [Republican Party of Minnesota v. White, which overturned a law forbidding candidates for judgeships to announce their views on legal or political issues] seems to me an egregious misapplication of the First Amendment.” On speech codes he seems to agree with The Economist that “the big danger is that, in the name of stopping bigots, one may end up by stopping all criticism.” He adds that “one of the arguments for allowing hateful speech is that it makes the rest of us aware of terrible beliefs [like Holocaust denial] and strengthens our resolve to combat them.” Lewis concedes, however, that “in an age when words inspired acts of mass murder and terrorism, it is not as easy for me as it once was to believe that the only remedy for evil counsels, in Brandeis’s phrase, should be good ones.” He adds, “I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging.”
As a former newspaper man, Lewis tackles the knotty conflict between freedom of the press and protection of confidential sources. Are shield laws, which are meant to provide a journalist with the right to refuse to testify about who provided information gathered during the course of writing an article, the answer for journalists who would protect their sources? Mr. Justice Lewis believes that “the chance that [the Supreme Court] will read the First Amendment to give journalists a testimonial privilege is zero.” Nevertheless, he does not believe that shield laws are the answer. The Lewis solution when journalists refuse to reveal their sources: Don’t put them in jail (as was done to the Times‘s Judith Miller), just have judges tell jurors to assume no source.
Given the press’s abysmal performance in the immediate aftermath of 9/11, is Lewis’s confidence that in the long run free speech will prevail justified? And what about the middle run? Lewis seems to see the press’s submissive stance post-9/11 as an atavistic rally-round-the-flag-in-times-of-trouble response, this time reinforced by right-wing intimidation and a natural desire not to appear unpatriotic. It will, he presumably believes, ebb with time, if not with a change of administration.
Well, Lewis has history–or a part of history–on his side. But in trying to project the longer-term prospects for the health of the First Amendment and free-speech values that animate it, I worry that he gives short shrift to the long-term consequences of the Bush Administration’s successful action. For example, its packing the Supreme Court (and lower federal courts) with a cadre of younger conservatives who are putting in place precedents that could undermine the First Amendment, not to mention other parts of the Bill of Rights, for decades to come.
In the 1920s, the constitutional scholar Zachariah Chafee Jr. identified the two free-speech interests the First Amendment is meant to protect: a personal interest in self-expression (the right of individuals to set forth their opinions on matters of vital interest, if life is to be worth living) and a social interest in the attainment of truth (which Holmes famously described as “the power of the thought to get itself accepted in the competition of the market”).
Lewis is fairly persuasive when he argues that, by and large, the courts have reflected the deeply embedded Madisonian view on the importance of safeguarding the right of citizens to express themselves. But on the second interest–the need for a competition of ideas, a diversity of opinions–I wish he had given more space and attention to those like Ben Bagdikian, Robert McChesney and Bill Moyers, who argue that media concentration has put in place a structure that functions to exclude alternative, diverse and radical opinions, ideas and assumptions. There is a vast literature here–ranging from radical analysts like Noam Chomsky and Edward Herman to moderate liberal humanists like Lee Bollinger (who argues that for ideological diversity to flourish in electronic media there must be federal regulation, a position at odds with recent rulings of the FCC and long-term friends of deregulation and the Murdochization of the media).
Lewis gives no shrift at all to the concerns of those like the lawyer-scholar Lawrence Lessig, who has reminded us how corporate interests have impinged on the free flow of ideas–how as a result of changing law, new technology and concentrated markets, “never in our history have fewer had a legal right to control more of the development of our culture than now.” The Copyright Act of 1790 took a restrictive view of intellectual property and emphasized the importance of free expression and the public domain. For the first 120 years of this Republic, the copyright term was extended once, to twenty-eight years from fourteen, the effect being the continued enforcement of copyright as a limited monopoly. In the past four decades, powerful media conglomerates seeking to monopolize lucrative properties have extended it eleven times, with the term of protection now being the life of the author plus seventy years, which is effectively a lifetime monopoly!
At a moment when too many Americans are either ignorant of or choose to underestimate the critical importance of constitutionally protected freedom of speech to our country and our culture, Anthony Lewis’s book makes an invaluable contribution to our incomplete national conversation. But that should be the beginning rather than the end of the story. A.J. Liebling famously said that freedom of the press is guaranteed only to those who own one. In the world of Big Media, owners are corporations; the courts to the contrary notwithstanding, these (mega) corporations are not people, and their ability not merely to survive in the marketplace but to dominate it has less to do with having better ideas than with a better-looking bottom line. The threat this poses to our No. 1 Amendment should not be ignored.
We have indeed come a long way from the days when it could be said, “The greater the truth, sir/The greater the libel!” Freedom for the thought that we hate may be, as Lewis suggests, here to stay; but freedom of thought per se will be compromised if First Amendment values are diminished or replaced by corporate ones.