Summer 2008 - Volume 11 Number 3
|Reviews||Freedom for the Thought That We Hate: A Biography of the First Amendment
New York: Basic Books, 2007
Most of us are familiar with that stalwart slogan of liberal opinion: “I may disagree with what you say, but I will defend to the death your right to say it.” Attributed to Voltaire (probably falsely), it expresses a deep commitment to the right to free speech that is sometimes called a natural right and sometimes a universal right, but always a human right.
Commonly invoked in opposition to censorship of all sorts, it serves well those who oppose police interference with sexually explicit materials (commonly called pornography) and dissenting political opinions (usually called subversion). All countries belonging to the United Nations presumably endorse its Universal Declaration of Human Rights (though relatively few obey its dictates). Citizens of Canada are expected to live up to its Charter of Rights and Freedoms (but its definition of “hate speech” immediately calls the commitment to free expression into question) and, of course, the ringing endorsement of free speech, a free press and so on is classically to be found in the First Amendment to the Constitution of the United States of America (an endorsement not always understood by American citizens who sometimes react to questions about freedom of the print and broadcast media by insisting that such freedom is license and that both the language and content of newspapers and television should be curbed).
The devil, as usual, is in the details. It is easy enough to be relaxed in the company of ideas and images that we like. It is hard to accept those that we detest. So, child pornography, racist literature and the like prompt the opinion that, if one is unaccountably absent, then “there ought to be a law!”
This brings us to the thorny issue of semantics. One of the dopiest retorts to a careful argument on any topic is the often frustrated reply: “You’re just quibbling about semantics!” I say “dopey” for the simple reason that if we have no proper definitions of words such as “obscenity,” we literally do not know what we are talking about when someone urges that we seek to censor pornography. Thus, US Supreme Court Justice Potter Stewart spoke for a multitude in his declaration of 23 January, 1915: “Hard core pornography may be hard to define,” he proclaimed, “but I know it when I see it.” This will no longer do. We are better served by recalling another US jurist of even greater reputation. In 1929, Oliver Wendell Holmes Jr. wrote: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thoughtnot free thought for those who agree with us but freedom for the thought we hate.”
It is this second opinion that Anthony Lewis chooses to use as the title of his splendid, celebratory book. The subtitle is equally important, for America’s clarion call of freedom set forward in its Bill of Rights (the first ten amendments to the Constitution) was plainly less than met the eye, or the ear. Within a few years of its adoption on 15 December, 1791, it was mocked by the passage of the Alien and Sedition Acts of 1798, which criminalized dissent and led, among other things, to the arrest of people who were openly critical of government and accused of making “false, scandalous, and malicious” accusations against public officials. At least twenty-five such offenders were convicted including the grandson of Benjamin Franklin, a newspaper editor who had dared to say nasty things about President John Adams and his associates. Not much room was available for the Jon Stewarts and Stephen Colberts of the day, but the imprisoned newspaper editors and others were vindicated when the Federalist Party was swept from power in 1801, two hundred years before an equally controversial intrusion on free speech, George W. Bush’s Patriot Act of 2001, was passed in part to curb opposition in a perceived time of peril.
In Lewis’ view, despite serious diversions and set-backs, the convoluted evolution of free speech in the United States of America has been generally progressive. In support of this thesis, he successfully combines legal scholarship with an assessment of the social attitudes of citizens and the political ideologies of politicians. He engages in a process of contextualization that allows us to understand better both why and now the First Amendment moved forward. While it is true that there remains both a strong element of xenophobia and intolerance for “alien” political ideology, religious belief and sexual expression in the USA, it cannot be denied that there is also a robust streak of irreverence that can occasionally be transformed into courageous and principled opposition to injustice and repressionboth domestic and foreign.
In the process of solidifying and sometimes expanding freedom of speech in the United States, the judiciary has played an important part. The US civil rights movement, for example, was encouraged by the Supreme Court’s decision (Brown v. Board of Education, 1954) and women’s reproductive rights were advanced (Roe v. Wade, 1973) in decisions that were arguably ahead of conventional political and public opinion. To write the heroic history of these events and trends, few bring the talents, experience and expertise of Anthony Lewis. He is a formidable constitutional law expert, a civil rights advocate and one of the most compelling and erudite journalists currently writing on legal matters. A previous book, Gideon’s Trumpet (1964), was a forceful account of the way in which American citizens won the right to legal counsel, whether or not they could afford to pay for one (a refrain repeated nightly on television programs such as Law and Order). He has also been duly rewarded with Pulitzer Prizes for journalism in 1955 and 1963 for his work as a practicing newspaper writer. Within the American academy, he has taught the reporter’s craft at Columbia University’s Graduate School of Journalism since the mid-1970s, and was a lecturer at Harvard for fifteen years.
Lewis’ book is not without its faults … for those who choose to find them. His tone is passionate, but some think it is overly effusive and almost hagiographic. He plainly sees Supreme Court judges as heroes in the defence of free speech, but some critics claim that they came rather late to this position. Since most of the major cases cementing First Amendment Rights were heard in the twentieth-century, they churlishly ask why the court had been all but silent on the issue for over a century, when its voice might have been more profitably heard. Others take him to task for being insufficiently concerned about the future, citing impending squabbles between corporate Internet providers and private citizens as the coming focus of free speech controversies. This last, I believe, is especially specious, for Lewis was addressing the evolution of the First Amendment, not speculating about its future. My own concern is that Lewis may be too hopeful that the line of progressive growth in American freedom will continue as before. To me, it very much depends on which honourable judges occupy the famous nine seats. Had Barack Obama’s rhetoric of hope not prevailed over Sarah Palin’s rhetoric of … whatever it was, then John McCain could have sealed the Court in the mold of Clarence Thomas and Antonin Scalia for the foreseeable future. Already awkwardly tilted to the right, past victories for liberty could easily have been overturned and progress brought to a halt.So, it is relatively safe to applaud Mr. Lewis and to rejoice in his optimism, for the time being. Meanwhile, citizens in other representative democracies would do well to reflect on American history, compare it to their own and perhaps chart a course for the entrenchment of existing freedoms and the enlargement of liberties in the future.
Howard A. Doughty teaches in the Faculty of Applied Arts and Health Sciences at Seneca College in King City, Ontario. He can be reached at firstname.lastname@example.org
The views expressed by the authors are those of the authors and do not necessarily reflect those of The College Quarterly or of Seneca College.
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