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America’s core value

Jonathan Kirsch is an attorney specializing in publishing law. His next book is a history of the Inquisition and its impact on American democracy.

THE 14 most important words in American democracy, according to Anthony Lewis, are found in the 1st Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .” Yet it was not until 1931, he points out in “Freedom for the Thought That We Hate,” that those words were invoked and enforced by the Supreme Court. Even so, the courts have continued to engage in a long and sometimes rancorous debate over what they actually mean. In that debate, Lewis finds the real meaning of our democracy.

Lewis, one of the great explicators and advocates of civil liberty in the media, makes a stirring argument for what conservatives dismiss as “judicial activism.” He cites Chief Justice Charles Evan Hughes, who in 1907, even before his appointment to the high court, declared that “the Constitution is what the judges say it is,” and he defends the willingness of the courts to flesh out the skeletal words of the 1st Amendment. “Timid, unimaginative judges,” Lewis argues, “could not have made America as extraordinarily free as it is.”

As a corrective to complacency, Lewis reminds us that our freedoms are not only precious but hard-won. English law permitted the king and Parliament to decide what was fit to print and punish defiant authors and publishers under the law of “seditious libel.” As drafted in 1787, our Constitution was silent on the rights of free speech and freedom of the press; the 1st Amendment was added four years later. When Congress passed its own Sedition Act, in 1798, criminalizing “false, scandalous and malicious writing or writings against the government of the United States,” the rationale was that the law was needed, as Lewis explains, “to defend the country against terrorism: French terrorism.”

Thus does Lewis anticipate the danger of “the political use of fear to justify repression,” and he shows how the debate over the Sedition Act prefigures more recent controversies: “It tells us why Americans should scent danger when a government tries to stop a newspaper from disclosing the origins of an unsuccessful war, as the Nixon administration did when the New York Times began publishing the Pentagon Papers on the Vietnam War in 1971, or accuses a newspaper of endangering national security by disclosing secret and illegal wiretapping without warrants, as the administration of George W. Bush did during the Iraq War in 2006.”

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Lewis is the author of three previous books on law and politics, including the celebrated “Gideon’s Trumpet,” and he knows how to parse a Supreme Court decision. At the same time, he looks behind the printed page to scrutinize the experiences and values of the men and women whose utterances are given the force of law. The result is a short history of the 1st Amendment that is always illuminating and sometimes rollicking -- as when he pauses to report that Justice John Harlan, whose eyesight was failing but who wished to determine whether a particular movie was obscene, “brought a law clerk with him to tell him what was going on.”

The single most surprising fact in Lewis’ book, however, is that the court did not refer to the amendment in considering a free-speech case until 1919 -- for the simple reason that after the Sedition Act expired in 1801, the federal government did not try to limit those freedoms again until the outbreak of World War I, when U.S. citizens were prosecuted under the Espionage Act of 1917 for criticizing the draft. In the first three of those cases, the high court upheld convictions obtained under the act; it was only in a dissent by Oliver Wendell Holmes Jr. in a fourth case, Abrams vs. United States, that the 1st Amendment was invoked in defense of leafleting that had resulted in conviction.

Not until 1931 did the court’s majority finally apply the 1st Amendment, in this instance to strike down a California law that criminalized the display of a red flag “as a sign, symbol or emblem of opposition to organized government.” But Lewis notes that the ever-shifting boundaries of the amendment are drawn anew in each case. Justice Hugo Black, for example, was a self-declared free-speech absolutist, but he dissented from a 1971 decision reversing the conviction of a young war protester for wearing a jacket inscribed with a bleepable anti-draft slogan, arguing that it was an “absurd and immature antic” rather than an act of free speech.

Lewis concedes that freedom of the press sometimes takes a bad bounce, as when, for example, reporters assert the right to withhold identity of confidential sources. He cites the case of Wen Ho Lee, a scientist at the Los Alamos National Laboratory, who was arrested in 1999 on suspicion of spying after government sources leaked allegations to the press. After Lee was exonerated, he sued the government and subpoenaed the reporters to discover who had fingered him. The case was settled without a clear resolution of the conflict between competing values -- Lee’s right to repair his damaged reputation versus the media’s right to protect sources -- but Lewis asks the tough questions. “Suppose that a federal shield law had existed when Wen Ho Lee sued to seek some compensation for his nightmare ordeal,” he muses. “The journalists who wrote the damaging stories would have had their subpoenas dismissed, and without the names of the leakers Lee would probably have had to give up his lawsuit. Is that what a decent society should want?”

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As Lewis admits, no absolute defense of free speech and freedom of the press is possible -- if only because the 1st Amendment is hedged on all sides by the laws of copyright, defamation, privacy and obscenity. At the same time, he reminds us of the values the Founders sought to protect when they enacted the Bill of Rights. For Lewis, the 1st Amendment is the touchstone of democracy, but words scratched on a sheet of parchment are not enough to fulfill its promise. “Even in a country with constitutional guarantees of freedom, something more is needed to resist fear and its manipulators,” he insists. “That is courage.”


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