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The First Amendment: Guardian of All Freedoms:

A Review of Anthony Lewis's Freedom for the Thought That We Hate: A Biography of the First Amendment


Friday, Feb. 29, 2008

In his new book, Anthony Lewis returns to the topic of the First Amendment - which he also addressed in 1991, in Make No Law: The Sullivan Case and the First Amendment. It's a fitting topic for this former longtime New York Times journalist and two-time Pulitzer Prize winner, who has long covered the law and the courts. Readers might be familiar with Lewis's most famous book -- Gideon's Trumpet -- about the landmark unanimous 1963 Supreme Court decision in Gideon v. Wainright, wherein the court ruled that the Sixth Amendment right to counsel requires that states appoint counsel for indigent criminal defendants. (The book was made into a movie starring Henry Fonda).

Lewis's subtitle is also apt. He calls the book a "biography," distinguishing the law of the First Amendment, which consists mainly of Supreme Court decisions, from the life of the First Amendment, derived from the stories of litigants and judges.

Impressively, Lewis compresses 217 years of First Amendment jurisprudence into less than 200 pages, but does not oversimplify. Rather, he summarizes issues related to sedition, libel, patriotism, privacy, press privileges, hate speech, pornography, campaign finance, and terrorism - occasionally straying from storytelling to give us his own circumspect, nuanced opinions.

Overall, lawyers and laypersons will find a lot to like about the book, including Lewis's accessible and elegant writing style.

The Two Key Prongs of First Amendment Protection: Freedom of Speech and of the Press

"Congress shall make no law…abridging the freedom of speech, or of the press." From those fourteen words two branches of First Amendment jurisprudence have emerged. One protects the freedom of the people and the press to criticize the government; the other protects the right of individual expression and speech more generally.

James Madison -- speaking against the Sedition Act passed by the Congress in 1798 (seven years after the passage of the Bill of Rights) -- argued that the First Amendment was foundational to all other rights, and Lewis agrees. Madison and others believed that America was unique in that the people collectively were "the sovereign." The government exists to serve the people, not the other way around. Today, as then, the free flow of ideas, coupled with inquiry into and protests against the way officials conduct themselves in our names, are prerequisites to self-government.

Anti-Government Speech, the Post-9/11 Press, and Journalistic Privilege

Lewis tells the stories of people who were prosecuted and incarcerated for their anti-government views during World War I, under Woodrow Wilson's administration; during the "Red Scare" of the 1950s; and during the Vietnam War. During Wilson's tenure, as Lewis explains, Congress passed the vague Espionage Act, a precursor to our post-9/11 Patriot Act. But during the Vietnam Era, in 1971, freedom of the press triumphed when the Supreme Court, 6-3, voted to thwart the Nixon Administration's efforts to stop The New York Times from publishing the "Pentagon Papers," a collection of classified documents that told the true story of the origins of the Vietnam War.

Lewis quotes from Justice Hugo Black's opinion: "Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell."

He also draws a telling contrast, reminding us of the press's failure to uncover and report the lies and deception the Bush Administration employed to wage war on Iraq, until long after the fact. Lewis ascribes this failure to reporters' misguidedly rallying around the President after 9/11 in the name of patriotism. Asleep at the wheel, the press failed in its duty to the American people to uncover and report the truth.

Significantly, however, Lewis does not believe in unfettered freedom of the press. He criticizes reporters who leaked untrue government stories about Los Alamos scientist Wen Ho Lee, who was accused by the government of passing secrets to China. (After the government dismissed most of the charges, newspapers paid a settlement to Lee, rather than go to trial and have to choose between revealing their confidential government sources or being held in contempt.)

Lewis does believe, however, that there should be qualified immunity for the press -- but immunity that stops far short of allowing the press to use the government for cover. Lewis argues that any absolute press immunity would subvert the First Amendment's primary purpose--for it envisions the press as uncovering government wrong, not aiding the government in the commission of crimes of deception against its citizens.

The First Amendment and Privacy

Lewis believes it is a colossal waste of time for the government to serve as a national "nanny," protecting people from the realities of everyday life found on television (as in an exposed body part or four-letter word). Though he decries the vulgarization of culture, he doesn't think the government should be in the business of censoring it.

Lewis favors the use of the First Amendment to protect media when it targets true public figures. Thus, he praises New York Times Co. v. Sullivan, the 1964 case in which local government officials sued the Times for running a pro-civil rights ad, and the Supreme Court responded by raising the libel standard to "actual malice," requiring, at a minimum, willful disregard of truth or falsity.

However, Lewis doesn't believe movie stars and other well-known persons are always properly deemed public figures. Lewis thus sees as mistaken the 1940 decision of the U.S. Court of Appeals for the Second Circuit in Sidis v. F-R Publishing Corporation. The case arose when James Thurber, writing under a pseudonym for The New Yorker, targeted a former boy "genius," William James Sidis, who was then a quiet, eccentric, middle-aged man living in obscurity. Sidis sued for libel, but the Court ruled, in effect, that a person who once was famous is always famous. Lewis disagrees, emphasizing (as he did in discussing the Wen Ho Lee case)

that courts must balance the competing values of personal privacy and the public's right to know.

Speech Without Words: Hate Speech and Campaign Contributions

The Supreme Court has recognized that speech is more than spoken or printed words. Some acts (such as flag-burning) are symbolic speech protected by the First Amendment. Yet symbolic speech can sometimes be regulated.

In a cross-burning case from Virginia, for example, the Supreme Court held that the state had the power to penalize cross-burning despite its status as symbolic speech.

Lewis offers an interesting perspective on hate speech, viewing it as culturally-bound, based upon the intended response--most commonly fear and violence. He reminds us that the Weimar Republic had free speech -- a liberty that Adolph Hitler exploited to spew venomous lies against Jews that fed into the later genocide of the Holocaust. Today, pro-Nazi speech, books, and symbols are prohibited in Germany, as are racist speech and symbolism in South Africa, given its history of apartheid.

The Supreme Court has also ruled, in the 1976 case of Buckley v. Valeo, that political campaign contributions - though they may involve no words at all -- are a form of speech. Buckley and a more recent case arising under the McCain-Feingold campaign finance law established that only certain limits on campaign spending are constitutional. Lewis also discusses the Supreme Court decision that struck down a Minnesota law limiting judicial candidates' political speech.

Lewis's critique of these opinions demonstrates his nuanced view of the First Amendment. He agrees that money is speech, but stresses that it is also more than speech and concludes that laws ought to be able to rein in campaign spending to some degree. As for elected judges, when campaign promises include predictions of how they will rule on particular issues, then they are no longer impartial arbiters of the law - but politicians accountable to their campaign contributors. Justice for sale is justice perverted.

The "War" On Terrorism: Freedom of Speech Is Not The Only Freedom At Stake

Finally, and perhaps most importantly, Lewis tackles the free speech issues inherent in the so-called war on terrorism. He reminds us that the political argument used by the Congress to enact the 1798 Sedition Act banning anti-government speech was that the "terrorism" let loose in the French Revolution had to be prevented from reaching our shores and infecting our citizens. Two hundred and ten years later, prosecutions are taking place in our country to repress "radical Islamist" speech that calls for "jihad" against the United States. Our anti-terrorism laws are broad and far-ranging, and could, if the government desires, implicate much speech and thought that is critical of our government. But should they be so applied?

Lewis admits that in this new type of "war," it may be harder to divine when speech truly poses an imminent threat that someone may act and perpetrate violence - the Supreme Court's test for regulation. How does one know whether a fiery sermon in a mosque will cause a listener to "imminently" plan and carry out an attack? Recent convictions, like those of Jose Padilla and the "Paintball" defendants I discussed in a prior column, show just how little evidence of potential harm is necessary for conviction. This troubles Lewis, and he admits that he has no good solution to the conundrum of how to protect both speech and safety.

On other post 9/11 constitutional issues, however, Lewis is much more definitive. He lambastes the government for imprisoning both Americans and foreign subjects as "enemy combatants" and holding them without trial for years, in violation of the Fifth and Sixth Amendments. He deplores the torture of prisoners and our government's insistence on continuing to torture (though not admitting that it is) and refusing to admit that practices such as waterboarding are assaults on the Eighth Amendment and international laws and treaties.

Lewis also faults the press for not more widely reporting and staying on these stories, while conceding that it is up against the most secretive Administration in history. While Lewis does credit the New York Times for reporting on the President's decision to secretly wiretap Americans, it should be noted that the Times sat on the story for years before publishing it.

Lewis reminds us that although the government puts many obstacles in the paths of everyday citizens and journalists who try to hold the government accountable to the laws and the Constitution, we must be constantly vigilant. At no time in history has the need for governmental accountability been more urgent and, at the same time, more difficult to achieve.

Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., 2007, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004.

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