FREEDOM FOR THE THOUGHT WE HATE
I've seen a lot of other societies. Many of them have admirable aspects, but none of them has the same degree of openness that we do. I think that is our distinguishing characteristic, and I think we ought to treasure it. ... If we understand it, and know how hard it was to achieve, we might fight a littler harder to preserve it. -- Anthony Lewis
Anthony Lewis, the longtime New York Times op-ed page columnist and veteran Supreme Court observer recounts the different interpretations of the First Amendment to the Constitution in "Freedom for the Thought That We Hate: A Biography of the First Amendment." Adopted in 1791, the amendment was first enforced by the Supreme Court in 1931. Mr. Lewis profiles the people and controversies that have shaped today's understanding of the First Amendment and the current arguments that surround freedom of expression. Anthony Lewis discussed his book at the McCormick Tribune Freedom Museum on May 1, 2008, with Gretchen Helfrich as the moderator.
This short and lucid volume has a simple question at its heart: where does the extraordinary freedom of thought and expression found in the United States come from? We all know that the First Amendment asserts that "Congress shall make no law...abridging the freedom of speech, or of the press." But as Lewis shows, those words are not the end of the story but its beginning. Our understanding of these freedoms has evolved, and Lewis gives the Supreme Court pride of place in facilitating that evolution.
Anthony Lewis briefly narrates the history of the First Amendment, from the Sedition Act of 1798, which criminalized “false, scandalous and malicious writings against the government of the United States," to the Espionage Act of 1917; the rationale was that the law was needed, as Lewis explains, "to defend the country against terrorism: French terrorism."
He then asserts that the first time any opinion was ever written in the Supreme Court saying that the First Amendment protected against repression of speech or publication was in 1919; and that was a dissenting opinion by Justice Holmes in the Abrams Case. This then, he mentions was the beginning a series of dissenting opinions by Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis. This sparked what Lewis calls "a legal revolution." They "had only two votes of nine," he says. "But their rhetoric was so powerful, so convincing, that it changed the attitude of the country and the Court." They eventually persuaded America and the Court. And very gradually the Court began to see that freedom of expression was a part of the most basic values of this country. The Justices began to take the words of the First Amendment seriously.
Anthony Lewis, who fundamentally believes in the inclusion of stories, real life stories and experiences, in any form of discussion, shared with our audience several stories, in relation to the book. This story in particular inspired the title of this book: Lewis told our audience that he recalls when Justice Felix Frankfurter’s showed him an eloquent 1929 dissent by Justice Oliver Wendell Holmes Jr. that defended the free speech rights of Quakers and pacifists. I remember Lewis saying that “when he came to the final paragraph, he felt the hair rise on the back of my neck.” This he states is when the modern First Amendment began to take shape.
Lewis then discusses the press and their sources and press privilege. (He makes known that he is definitely not a Hugo Black absolutist, especially in regards to press). He asserts that journalists do, from time to time, have to make promises of anonymity to sources and that they absolutely have to keep those promises. He states, “you cannot disclose somebody’s name if you’ve promised no to. He says it’s not only a moral compulsion; it’s a legal compulsion because the Supreme Court decided a case in which a reporter in Minneapolis (Cohen v. Cowles) promised a source to keep the name secret, and published the name anyway and the source sued for violation of contract and won.
But he also states that a judge should balance the interest of the parties. Basically, Lewis says, “the interest in the reporter’s secrecy must trump the government’s interest in the information.” Lewis notes that he does not think that the press should have an automatic immunity or press privilege. If they are able to invoke the First Amendment and go free then Lewis states, there would be no recourse for irresponsible journalists.
Although it is a truism that the United States allows greater freedom of speech and freedom of thought than any other nation in history, Anthony Lewis reiterates that our constitutional rights were not protected simply by the existence of the Constitution. Brave judges and citizens were willing to uphold the rights when legislatures, governors, and presidents try to circumvent them. And hence, today, conservative as well as liberal judges now agree that even speech we hate must be protected, and this is one of the glories of the American constitutional tradition.