Fanning the Flames: The Freedom Project Blog

5.07.2008

FREEDOM FOR THE THOUGHT WE HATE

By Winnie














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.

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SHAWN HEALY

Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project


Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.



Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.


First Amendment journalism initiative


The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at



Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project


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