FREEDOM FOR THE THOUGHT THAT WE HATE. By Anthony Lewis. Basic Books, New York, N.Y. 2008. 221 pages. $25 hard cover.
The Vineyard’s political season is in full swing, with town meetings and local elections happening this month. It is in a season such as this that Anthony Lewis’s most recent book, Freedom For The Thought That We Hate, is particularly compelling.
Mr. Lewis is a former New York Times columnist, a two-time Pulitzer Prize-winning journalist, and seasonal West Tisbury resident. In his new book he reflects on the history and origins of the First Amendment, adopted in 1791, and the protections set forth in a series of 20th century Supreme Court decisions, which give all of us the freedom to speak out, to question our government, and to do so without fear of fines and penalties.
Locally, we experience the liberation — and the discomfort — of the First Amendment as we attend town meetings. As noted by the Supreme Court, “ . . . the air may at times seem filled with verbal cacophony . . .” However, the court wisely notes this very cacophony “is, in this sense, not a sign of weakness, but of strength.” Personally, I appreciate the reminder from Mr. Lewis and the historical perspective shared in Freedom For The Thought That We Hate.
The book is written for the general public and is easily readable. It is both a historical review as to why we have become the freest nation on earth and a warning about intrusions into our freedoms by laws such as the Patriot Act. The author argues that the press should not have the unfettered ability to hide behind confidential sources. He also hints that the Internet may well be the next frontier of challenges for the First Amendment. (As we have seen, the Internet permits bloggers and others to place hate speech into the public domain.)
The book tracks the origins of the First Amendment, which was a substantial deviation from the common law of England. In England, citizens were prosecuted for criticizing the government and truth was no defense to free speech. The First Amendment (which was actually the third proposed amendment; the other two were defeated), by definition, contains protections not included in the United States Constitution. Its words: “Congress shall make no law . . . abridging the freedom of speech . . .” initially applied only to laws passed by Congress. It was not until the passage of the Fourteenth Amendment, after the Civil War, that its protections were extended such that a person could not be deprived “of life, liberty, or property, without due process of law.”
The breadth of the First Amendment protections, as we understand them today, can be credited to two powerful judicial lions: Oliver Wendell Holmes and Louis D. Brandeis, whose eloquent and passionate dissenting opinions in the early part of the 20th century ultimately moved the Supreme Court to adopt their reasoning. These two great justices would likely be characterized as judicial activists by today’s originalists. Without the contributions of Justices Holmes and Brandeis, we would not enjoy the breadth of freedom we now so readily take for granted.
There is no Congressional record or other historical literature which gives guidance to the meaning of the First Amendment. Indeed, it was only seven years after its passage that Congress, in 1798, passed the Sedition Act, which made it a crime to write or publish any false or scandalous writings “. . . against the government of the United States, or either House of Congress . . . or the President . . . for the intent to defame or bring them into contempt or disrepute . . . .” This law was enacted with the support of President John Adams at a time when Thomas Jefferson was his Vice President. Notably (but not coincidentally) the act did not protect the Vice President, as it was understood at the time that Thomas Jefferson intended to run for President. The Sedition Act, by its terms, expired on the day before the next Presidential inauguration. Thomas Jefferson, upon becoming President, pardoned those who had been convicted under the act.
Congress passed no other laws restricting freedom of speech or publication until World War I, when it passed the Espionage Act. Four radicals, who were convicted for throwing leaflets from a building in New York urging a general strike to protest Woodrow Wilson’s decision to send American troops to Russia after the Bolshevik Revolution, appealed to the Supreme Court. While their convictions were affirmed, Justice Holmes, in a powerful dissent joined by Justice Brandeis, urged that the government only had the right to punish speech that has a “clear and imminent danger” of bringing about substantive evils:
“Nobody can suppose . . . that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government.”
Justice Holmes expounded further, in words which have special meaning during this town meeting season:
“Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition . . .
“But . . . the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . .
“That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment . . . While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe . . . .”
Justice Holmes had been a Union soldier in the Civil War and was seriously wounded three times. In 1929 he wrote a dissenting opinion in the case of a pacifist, an 88-year-old immigrant from Hungary who had been denied citizenship. She had refused to take an oath that she would take up arms to defend the country. Justice Holmes, after noting that her refusal to so swear was irrelevant given her age, and after stating that he disagreed with her pacifism, wrote:
“Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate . . .”
A member of the Communist Labor Party of California was convicted of membership in an organization advocating “criminal syndicalism.” Justice Brandeis, again in dissent joined by Justice Holmes, wrote:
“Those who want our independence . . . believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty; that this should be the fundamental principle of American government.”
Mr. Lewis discusses other notable cases in his book, including the prosecution of a man walking through a California courthouse during the height of the Viet Nam War with a T-shirt saying “[expletive] the draft.” In voiding the conviction, the Supreme Court, having been influenced by the writings of Justices Holmes and Brandeis, stated a principle so simple but so just: “One man’s vulgarity is another’s lyric.”
Similarly, in striking down a practice compelling the saluting of the American flag, the Supreme Court ruled that:
“. . . freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
“If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
These are lofty words and sometimes we forget they have a local application. They do.
I suggest that this year we attend town meeting in the spirit of Justices Holmes and Brandeis, brought to us anew by Mr. Lewis: we should come to town meetings, express our views, test them in the marketplace of public opinion and do so without fear. When we share our thoughts, listen to our neighbors and cast our votes we celebrate and affirm the First Amendment. By our participation, we positively define what it means to be American.
Ronald Rappaport is an Edgartown attorney and town counsel to five of the six Vineyard towns.