Anthony Lewis. Freedom for the Thought That We Hate: A Biography of the First Amendment. New York: Basic Books, A Member of Perseus Books Group, 2008. xv, 221 S. $25.00 (cloth), ISBN 978-0-465-03917-3.
Reviewed by Roger Mellen (New Mexico State University)
Published on Jhistory (January, 2009)
Commissioned by Donna Harrington-Lueker (Salve Regina University)
Freedom of Speech and Press: An Ever-Shifting Concept
It is a simple matter to support “free speech” with which you agree. Americans have always had difficulty tolerating more controversial communications, spoken or published, such as Communist urgings toward revolution, or racist and anti-Semitic blabber. However, as Supreme Court justice Oliver Wendell Holmes Jr. wrote, the importance of First Amendment free speech is not support of speech and thought with which we agree, but rather “freedom for the thought that we hate” (quoted, p. 37). And that is precisely the title that Pulitzer Prize winner Anthony Lewis chooses for his important book, Freedom for the Thought that We Hate: A Biography of the First Amendment.
By “biography,” Lewis means that he is following the lifetime of the First Amendment, through its tortuous development, through the twists and turns of judicial decisions and outside pressures. Lewis looks not simply at court rulings, but also the politics and people behind them, and that is the great strength of this book: contextualizing the law and making it more readable and understandable.
The development of First Amendment freedoms has not always been a straight and clear path, as Lewis notes. Even Justice Holmes, widely remembered for his support of free speech, changed his mind after initially rejecting constitutional arguments in support of leafleting against the government’s war effort. Holmes later wrote several famous dissenting opinions--dissents that later became the law of the land. Holmes was of course not alone in initially opposing the legality of speech critical of the government. The Sedition Act of 1798, passed so soon after the First Amendment was ratified, made it illegal to publish "false, scandalous, and malicious writing" against the government or its officials. During World War I, another Sedition Act again made disloyal language illegal. By today’s standards, those actions would be considered a violation of the Constitution.
Yet today’s view of the Bill of Rights may not have matured as much as legal rulings indicate. Currently, according to a new poll by the First Amendment Center, four out of every ten Americans cannot name a single right guaranteed by the First Amendment. Only 56 percent of those surveyed recognize freedom of speech as a First Amendment guarantee. Most Americans believe that individuals should not have the right to say anything deemed offensive to a racial group, and nearly half of those polled suggest that comments offensive to a religious group should not be allowed in public. While this annual poll by the Freedom Forum may be encouraging to those looking for greater ethnic and religious tolerance, it does not bode well for those looking for public support for free speech. Many Americans don’t need or trust the press, according to one analysis of last year’s survey, and clearly not everyone values the right to free expression when it clashes with other concerns.
This poll also demonstrates the shifting of public opinion regarding freedom expression over time, and in his book, Lewis creatively explores such historical changes and how they relate to--and clash with--court rulings on the First Amendment. He looks not simply at court rulings, but at the politics and people behind them, making the shifting meaning more coherent. The Sedition Act, for example, is placed in context by noting that while judges did enforce the measure making criticism of the president illegal, the electorate rejected that practice in the 1800 election by voting out the political party responsible. Another example of his wider historical view is when Lewis writes about Red-hunting in the 1950s. Judicial opinions shadowed the shifting public views after senator Joseph McCarthy lost his credibility, and subsequent court rulings gave more support to radical free speech. Lewis’s major point, however, is that heroic judges led public opinion rather than following it.
It is precisely this humanization of the law’s evolution that is this book’s strength. Lewis places legal evolution within relevant cultural and social history. However, this reviewer finds that the author ignores colonial precedents to the First Amendment when he suggests that it “has no discernable history … no meaningful discussion by its authors of what they meant” (p. xiv). While the latter may be true, it too easily ignores what came before Madison and the constitutional debates and the states’ precedents to the Bill of Rights. The First Amendment does indeed have a history, rooted in the colonial struggles over print freedom, the public’s evolving view of freedom of the press, and specifically, the Virginia Declaration of Rights. Part of this history is public opinion leading the way for judicial rulings, such as against the Sedition Act, or abolitionists opposing slavery. Another aspect of the book that detracts from its strengths is the author’s awkward tendency to include personal opinions, such as his denunciation of president George W. Bush’s decision to invade Iraq (p. 186), his criticism of the press’s failure to examine that decision critically (pp. 147-149), and his belief that journalists should be forced to name confidential sources in libel cases (p. 94).
These rough spots hardly outweigh the praise this book has justifiably received. Lewis provides a fresh view into complex material by placing U.S. law in direct comparison with that of other nations and by using sources beyond traditional legal cases, such as letters to the New York Times and the papers and other statements made outside the courtroom by Supreme Court justices. Judge Learned Hand, speaking at a wartime rally for freedom in 1944, noted that constitutions are not enough, but rather that, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it” (quoted, p. 107). Constitutional guarantees of freedom, Lewis concludes, are not enough on their own. Even today, it requires individual courage to ensure our continued freedom.
. Freedom Forum, State of the First Amendment (Nashville: First Amendment Center, 2008). 30 percent of those polled strongly disagreed that “People should be allowed to say things in public that might be offensive to religious groups.” 12 percent mildly disagreed with that statement. 42 percent strongly disagreed that “People should be allowed to say things in public that might be offensive to racial groups,” and 12 percent mildly disagreed. See http://www.firstamendmentcenter org/pdf/SOFA2008survey.pdf.
. Paul McMasters, at http://www.firstamendmentcenter.org/news.aspx?id=19031.
. On page 185, Lewis suggests that the original source of the important phrase “marketplace of ideas” came not from Justice Holmes, but rather from a 1936 letter to a Times editor from David M. Newbold. He credits Vincent Blasi, “Holmes and the Marketplace of Ideas,” Supreme Court Review (2004), 1.
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Roger Mellen. Review of Lewis, Anthony, Freedom for the Thought That We Hate: A Biography of the First Amendment.
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