It is our misfortune that Anthony Lewis stopped writing his column for The New York Times in 2001. For more than thirty years, that column was the first place to look for commentary about public affairs that was informed by a deep knowledge of and commitment to constitutional rights, expressed clearly, gracefully, and forcefully. Lewis’s retirement deprived us of his voice just at the moment when Dick Cheney, David Addington, John Yoo, John Ashcroft, Viet Dinh, Alberto Gonzales, John Roberts, and all the other president’s men began rewriting the rules on wiretapping, prolonged detention without trial, habeas corpus, torture, military commissions, secret evidence, and, above all, the claimed authority of President Bush, as commander in chief, to exercise sole and unlimited power on matters involving national security. Though the post-9/11 assault on civil liberty is only touched upon glancingly in Freedom for the Thought That We Hate, Lewis’s short book is nevertheless a reminder of what we have been missing.
In the United States, as Lewis’s tales of the First Amendment confirm, the power vested in the courts to interpret the Constitution helped us to resist tyranny. And the area where we have fared best is this book’s subject: the First Amendment right to speak and publish. In that crucial respect, the present era differs markedly from previous periods when rights were under attack. From the time of the Sedition Act of 1798, to the period during and right after World War I when there were thousands of state and federal prosecutions for speech, to the post-World War II red scare, and again during the Nixon years when political surveillance reached a high point, the hallmark of repression was the effort to curb dissent. Not so today. The protections forged in the court cases discussed by Lewis in this book have by now gained such widespread acceptance that they are not seriously threatened by the “war on terror.” All of us continue to be free to speak out against abuses by our government.
Lewis derives the title of his book from one of the legendary dissents by Supreme Court Justice Oliver Wendell Holmes Jr. The case was United States v. Schwimmer, decided by the high court in 1929. A middle-aged pacifist immigrant from Hungary, Rosika Schwimmer, was denied citizenship because she refused to swear that she would take up arms to defend the United States. Holmes, who had been a Union soldier in the Civil War (he was eighty-eight when he dissented in Schwimmer) and wounded three times, had little use for pacifist opinions. Yet he wrote, in words that remain stirring despite their familiarity, that “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.”
As Lewis tells us, Holmes was not always a champion of free speech. Before making a radical shift in the turbulent year that followed World War I, Holmes took a constrained view of the First Amendment. Probably the lowest point was his opinion for the Supreme Court in early 1919 upholding the ten-year prison sentence imposed on Socialist leader Eugene V. Debs for violating the Espionage Act. Debs’s crime had been praising three men who had been imprisoned for failing to register for the draft. He said they “were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind” and that he was “proud of them.” Later in the same year, however, Holmes dissented in another case involving prosecutions for opposing the war effort, this one carrying twenty-year prison sentences. Though his opinions thereafter in free-speech cases were almost always written in dissents, in which Justice Louis D. Brandeis regularly joined him, it is Holmes’s passion and poetry that has had a lasting influence. Today, it is hard to think about the First Amendment without calling to mind the soaring language of Holmes’s dissents of the 1920s.
Lewis speculates about the factors that went into Holmes’s change of course and suggests that a powerful influence was an article by Professor Zechariah Chafee Jr. of Harvard Law School, titled “Freedom of Speech in War Time,” which appeared in the Harvard Law Review in June 1919. Lewis reports that Holmes read it that summer. As this was just about the time the shift took place, and as Holmes subsequently wrote to Chafee saying he had been “taught” by the article, it seems likely that the piece played an important role. Yet one wonders how much Holmes was also influenced by what was going on in the country. It was a period of great agitation about aliens and radicals—comparable in many ways to the concern about terrorists in our time—leading up to the Palmer raids of November 1919 and January 1920 that involved dragnet arrests of thousands and the summary deportation of hundreds. In addition, the federal and state courts were crowded that year with prosecutions of anarchists, communists, pacifists, labor organizers, and assorted others who had spoken their minds. In changing course, Holmes was declining to join the hysteria sweeping the country. By speaking out eloquently in his dissents, he may have helped the nation regain its balance a few years later, as in 1924 when Calvin Coolidge’s attorney general, Harlan Fiske Stone, terminated the FBI’s antiradical division.
Though Lewis is a strong advocate of First Amendment rights, and writes about the crucial court cases that protect those rights from the standpoint of a believer, he is no indiscriminate partisan of the industry known as “the press.” Lewis believes in the right of all to express their views, but does not hold that journalists have special privileges. Nor does he necessarily come down on the side of the news media when their manner of expression comes into conflict with other rights.
An example of his willingness to give precedence to other rights is provided by his discussion of a famous Supreme Court case of the 1960s, Time, Inc. v. Hill. The Hill family had a frightening experience in 1952, when three escaped convicts seized their home outside Philadelphia, held them hostage for nineteen hours, but treated them courteously and released them unharmed. To escape the extensive publicity that followed this incident, the family moved to another state and did its best to stay out of the limelight. Two years later, a play based on the incident, but which did not use the Hill family name, opened on Broadway. Though The Desperate Hours portrayed the incident as involving sexual threats and considerable violence, it did not defame the Hills, as the family depicted in the play was shown behaving courageously.
But on the opening day of the play, Life magazine published an article that connected the fictionalized account that appeared on stage to the actual experience of the Hill family. The article not only named the Hills and included photographs of the actors in what had been the Hill home near Philadelphia, but it reported on the brutality portrayed in the play as if that were what actually happened.
The Hills sued and got a $30,000 judgment under New York State’s right-to-privacy law, which, among other things, prohibits “false light” portrayals. In the U.S. Supreme Court, however, that judgment was reversed in a five-to-four decision, in which Justice William Brennan wrote that the lower-court decision violated the First Amendment. According to Brennan, “Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and press.” Commenting on this, Lewis writes, “I am a great admirer of Justice Brennan, but I disagree with his conception of a civilized community.” The personal tragedy of the Hill family apparently weighs heavily on Lewis’s thinking about the case. After Life published its story, Mrs. Hill suffered a breakdown that psychiatrists attributed to trauma resulting from memories of the hostage episode, which acquired a more sinister cast through Life’s portrayal of it. Four years after the Supreme Court decision, she committed suicide.
In this instance, I disagree with Lewis. When the U.S. Supreme Court accepted the Hill case for review, I was working for the American Civil Liberties Union and I recall our intense debates about the case. We were committed to the right to privacy, and we thought Life had been sensationalist and irresponsible. Yet, despite the opinion of the psychiatrists who examined Mrs. Hill, it is impossible to know whether and to what degree the Life article contributed to her breakdown. Moreover, even if the article was a factor, it seems inappropriate to determine what may be published on the basis of its impact on someone so vulnerable. Both the opening of the play and the episode that involved the Hills were newsworthy events. Connecting them was reasonable, even if Life was grossly negligent in making it seem that the play was true to life. If such negligence were subject to punishment, the impact on what may be published would be substantial. The First Amendment protects not only the thought that we hate but also, to use Lewis’s own term, the “rancid journalism” that we despise. Thus, it should take precedence when it comes into conflict with a right—such as the prohibition of “false light” invasions of privacy—that lacks comparable constitutional status.
Lewis makes clear his lack of enthusiasm for special privileges for the press in discussing confidentiality of sources. He espouses the approach suggested by Judge David Tatel of the United States Court of Appeals for the District of Columbia Circuit in the 2005 contempt proceedings against Judith Miller of The New York Times and Matt Cooper of Time magazine. (Each was held in contempt for failing to disclose their sources for information they obtained about Valerie Plame Wilson, the CIA operative whose husband, Joseph Wilson, the former ambassador, crossed swords with the Bush administration.) As Lewis notes, Tatel is a highly regarded judge with a strong concern for the First Amendment. Yet he was not ready to exempt those two journalists from the duty to identify their sources. Instead, the judge proposed that the courts adopt a qualified privilege in which the harm caused by information disclosed by a source would be balanced against the value of the information that is disclosed.
Although I also favor a qualified privilege, I would strike a slightly different balance. In my view, it should be possible for journalists not to disclose the identity of sources who seek anonymity as whistleblowers in revealing misconduct by government or by nongovernmental institutions. This would be in keeping with other efforts that have been made in legislation to protect whistleblowers because of the important public service they perform. On the other hand, when high officials use the press to circulate what they think is damaging information about private citizens or lower-ranking officials who have broken ranks, the source could not be concealed. Neither Judge Tatel’s formula nor the variation I favor embeds a privilege in the First Amendment. As Lewis makes clear, the First Amendment provides no basis to determine who is a journalist—a difficulty that is greater than ever in the era of the blogosphere—and, therefore, who might be entitled to protect the confidentiality of a source.
These issues, though serious, are not about the very essence of free speech. Lewis concludes the introduction to Freedom for the Thought That We Hate by writing that “I am convinced that the fundamental American commitment to free speech, disturbing speech, is no longer in doubt.” His book makes clear that this commitment to free speech is so strong because the words of the First Amendment have acquired force under stress. Some of the losing battles for free speech of the 1920s were as important as the great victories in later decades because the dissents of Holmes and Brandeis are imprinted on the American consciousness.
In the years that lie ahead, the courts will have to come to grips with the damage done to civil liberty by the Bush administration. The outcome is hard to predict. Anthony Lewis’s book makes clear how much rides on the courts and the extent to which the country depends on a few Supreme Court justices. It is a thought that is simultaneously dispiriting, because it suggests the fragility of American liberties, and encouraging, because it indicates that it is possible for the courts, once again, to help the country set itself right.
Aryeh Neier is the president emeritus of the Open Society Foundations.