One Thing From the Book

Freedom of speech and expression is important and we should protect it. The Supreme Court Justices have made several courageous rulings and interpretations over the years to protect the First Amendment. Although we need to bear in mind that just because it’s enshrined in the constitution, doesn’t mean it triumphs all—there still needs to be a balance amongst freedom of speech versus other human rights.

My notes

When we say today that the First Amendment guarantees our freedom, we mean not only its brief text but the vast body of law that judges have built up over the years in applying it to issues brought before them.

Until World War II it was a uniquely American practice to give courts, especially the Supreme Court, a significant role in the structure of governance. No other democratic society had a constitution enforced by judges. In Britain and its empire, the doctrine of parliamentary supremacy prevailed; whatever a parliament did—however discriminatory, however unjust—was law.

In the past, he said, people thought that respect for basic values “could be guaranteed by relying on the self-restraint of the majority.” But after the Nazis, the lesson was that there must be “formal limits on the power of the majority. The concept that ‘It is not done’ needs to receive the formal expression, ‘It is forbidden.’”

On July 4, 1798, the United States Senate passed a bill to make seditious libel a federal crime.

The Sedition Act made it a crime to write or publish “any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress … or the President … with intent to defame … or to bring them, or either of them, into contempt or disrepute; or to excite against them or either or any of them, the hatred of the good people of the United States.” Violators were subject to imprisonment for up to two years and a fine of up to $2,000.

The law was needed, it was said, to defend the country against terrorism: French terrorism. The French Revolution of 1789 had led to Jacobin Terror and the guillotine. Some Americans, especially those of conservative outlook, feared that France would export its ideology.

Fear of French terror was used for a political purpose in the Sedition Act. The party system was just emerging, and the Federalists spoke for what could be called the established forces. The rising opposition, more populist, called themselves Republicans. (Despite the name, they were the ancestors of the modern Democratic Party.)

The Federalists designed the Sedition Act to suppress pro-Jefferson comment in the run-up to the presidential election of 1800, when Jefferson would oppose Adams. Its political cast was made transparent by the fact that it punished criticism of the president and Congress, but not of the vice president.

In the little more than two and one-half years of its existence, fourteen men were prosecuted under the act. Among them were the editors and proprietors of the leading Jeffersonian newspapers: the Philadelphia Aurora, the Boston Independent Chronicle, the New York Argus, the Baltimore American, and the Richmond Examiner. Most of the cases came to trial in the very year of the election, 1800. Adams’s secretary of state, Timothy Pickering, encouraged prosecutions that would silence pro-Jefferson papers during the election year.

The Sedition Act inadvertently made a significant contribution to American freedom. It made numbers of Americans appreciate the importance of free speech and freedom of the press in a republic.

But one feature of the Sedition Act did not disappear: the political use of fear to justify repression. Again and again in American history the public has been told that civil liberties must be sacrificed to protect the country from foreign threats. There have been repeated examples of what Richard Hofstadter called “the paranoid style in American politics.” As in 1798, when the Federalists spoke of French terror to justify the Sedition Act, so in the twentieth century Congress passed many laws branding as infamous anyone who was suspected of a Communist taint; politicians from the 1920s through Richard Nixon and Joe McCarthy won votes by charging their opponents with being soft on communism. In the “war on terror” in the twenty-first century, President George W. Bush persuaded Congress to deprive alleged “enemy combatants” of legal rights in order, he said, to keep the country safe.

Persecution for the expression of opinions 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 when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that 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, and that truth is the only ground upon which their wishes safely can be carried out. 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 that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. . . .

Those who won 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 with them, discussion affords ordin adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

The evident truth is that those who gave us the First Amendment did not provide a detailed code of how it was to be applied—and did not want to. They deliberately wrote a spacious amendment—a “sweeping command,” as Justice Holmes put it in his Abrams dissent—and left it to later generations to apply its broad call for freedom to particular situations.

Fifty years after Hughes wrote that, a legal movement arose that took the position he regarded as self-evidently wrong. Its supporters, including some judges and professors, became known as Originalists—because they advocated giving clauses of the Constitution their “original meaning.” Their argument was that, in a sea of possible interpretations, the only course that kept judges from reading their own preferences into constitutional language was to look for the intention of the Framers. The most prominent Originalist was Justice Antonin Scalia of the Supreme Court. He and others ran into the difficulty, noted above, of finding an original intention when the authors or supporters of a clause in the Constitution had not expressed one, indeed had not even imagined the problem now at issue.

He quoted Madison on the need for a free press. “The impairment of the fundamental security of life and property by criminal alliances and official neglect,” he wrote, “emphasizes the primary need of a vigilant and courageous press, especially in great cities.”

The First Amendment, Story said, meant only that “every man shall be at liberty to publish what is true, with good motives and for justifiable ends”—the very condition asserted by the Minnesota law. “Without such a limitation,” Story added, the amendment “might become the scourge of the republic, . . . by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form.”

That is because privacy, like libel, was then considered to be outside the scope of the amendment— a view that did not change until the Sullivan decision in 1964. But Judge Clark dealt with the case exactly as if the First Amendment were in it. He balanced Sidis’s interest in privacy against the society’s interest in freedom of comment. He decided the latter had greater weight because of the free-spoken society we are. Once someone becomes a public figure, however unwillingly, he or she is forever fair game for the press.

Courts “should not act as censors or arbiters of taste,” Lord Woolf said. “The fact that a more lurid approach will be adopted by the publication than the court would regard as acceptable is not relevant.”

In an interview in 1985, Kundera summed up his views on privacy: We live in an age when private life is being destroyed. The police destroy it in Communist countries, journalists threaten it in democratic countries, and little by little the people themselves lose their taste for private life and their sense of it. Life when one can’t hide from the eyes of others—that is hell. Those who have lived in totalitarian countries know it, but that system only brings out, like a magnifying glass, the tendencies of all modern society. . . . Without secrecy, nothing is possible—not love, not friendship.

Practical reasons against granting a constitutional privilege to the press were also advanced by Justice White. One was the difficulty of defining who counts as “the press” and thus would qualify for the privilege. The traditional idea, Justice White said, is that “liberty of the press is the right of the lonely pamphleteer . . . just as much as of the large metropolitan publisher.” How would courts define those who were entitled to the privilege?

Justice White went on to make a related point: The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury.

The last half of the twentieth century and the first years of the twenty-first saw a vast growth of executive power in the United States, very often exercised in secret, without scrutiny by Congress. President Bush claimed the unilateral power not only to eavesdrop on American citizens but to imprison them forever without trial on suspicion of being “enemy combatants.” The press, with all its defects, is often the only defense against the abuse of power.

But if the courts are to define, case by case, who qualifies for a testimonial privilege and who does not, then judges will be issuing something like journalists’ licenses—which are required in some countries but are utter anathema to the American press, which rightly regards press licensing as a form of official control.

It is a seeming characteristic of American society that it is periodically gripped by fear—fear manipulated by politicians. In 1798 it was French Jacobin terrorists who were supposedly going to infiltrate; even someone as sensible as Abigail Adams was touched by that fear. In the middle of the nineteenth century the Know-Nothing Party warned against the dire influence of immigrant Roman Catholics. After World War I demagogues persuaded many Americans that they were in mortal danger from political radicals. Of course no society is immune from the poison of fear. Germany was a country of high culture, and Jews had an important place in it, before it was taken over by an anti-Semitic mass murderer. But America, though it has faced economic troubles more than once, has never experienced anything like the distress of Weimar Germany. With its continental reach and vast resources, it might have been expected to be less susceptible to panic. That proved untrue time and again. Even in a time of strong economic growth, the years after World War II, another Red Scare developed. Congressional committees hunted Communists with considerable public support: a phenomenon that reached its peak in the 1950s in the maestro of fear and hate, Senator Joe McCarthy.

The free expression of the hopes and aspirations of a people is the greatest and only safety in a sane society.”

Holmes continued: It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

The central concern among the Framers of the American Constitution was concentrated power, and the checks and balances they built into our system of government were intended to prevent that kind of power. The aim of the Bush measures was to give the president precisely what the Framers had wanted to avoid: unilateral power unchecked by the other branches of government—and unchecked by the press. The Bush administration worked to exclude press scrutiny—and hence public accountability—by the most sweeping secrecy in American history. Even documents that had long been public were recalled and classified. Journalists who succeeded in exposing secret measures like the wiretapping order were threatened with prosecution for espionage.

Justice Harlan went on: The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. . . . That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.

The highest duty of the press—to inform the public about its governors—was defined in the earliest days of the United States by James Madison. In a republic, he said, the people are the ultimate sovereigns; they depend for their information on the press, which must therefore be free to “canvass the merits and measures of public men.” Madison was something of a romantic about the press. He wrote in 1799: “To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.” The American press has to perform its Madisonian function today in relation to a federal government that Madison could scarcely have imagined. It was tiny in his day, and it remained modest in size and role until Franklin Roosevelt’s New Deal in the 1930s; as New Deal programs went into effect, new governmental agencies were born and the government in Washington began to assume responsibilities that had formerly been exercised by the states or by no government. Now the federal government is huge and powerful.

In his opinion in the Pentagon Papers case, Justice Stewart said the role of the press was especially important in matters of national security. In that area, he said, the usual legislative and judicial checks and balances on executive power scarcely operate; Congress and the courts tend to defer to the president. So, he wrote, “the only effective restraint upon executive policy and power . . . may lie in an enlightened citizenry—in an informed and critical public opinion. For this reason, it is perhaps here that a press that is alert, aware and free most vitally serves the purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.”

Within a few months of those attacks President George W. Bush claimed the power to detain any American citizen as an enemy combatant and hold him or her indefinitely, without trial or access to counsel. His attorney general ordered thousands of aliens swept up and held for months on suspicion, often humiliated and physically abused. (Not one was convicted of an offense related to terrorism.) President Bush and his aides set about preparing the way for a war on Iraq by trying to persuade the American public that the Iraqi regime of Saddam Hussein had been involved in the September 11 terrorist attacks. Their propaganda campaign was extraordinarily successful. By March 2003, just before the war was launched, polls showed that 45 percent of Americans believed Saddam Hussein was “personally involved” in the September 11 attacks, and 44 percent said that some of the men who hijacked planes that day were Iraqis. Both beliefs were untrue, indeed preposterous. So much for the “enlightened citizenry” that Justice Stewart said was essential.

Why was the press so submissive after 9/11? One reason was that, like the American public generally, editors were stunned by the terrorist attacks and felt the need for national unity against the perpetrators. That meant, for most, uniting behind the president. Moreover, to criticize the president in the atmosphere of fear could seem unpatriotic. Indeed, Attorney General Ashcroft had said that disagreement was unpatriotic.

The United States differs from almost all other Western societies in its legal treatment of hate speech. In Germany it is a crime, a serious one, to display the swastika or any other Nazi symbol. In eleven European countries it is a crime to say that the Holocaust did not happen, that Germans in the Nazi years did not slaughter Jews. So it is in Canada, and the Canadian Supreme Court has decided that Holocaust deniers can be prosecuted and punished despite that country’s constitutional guarantee of free expression. In the United States, the First Amendment protects the right to deny the fact of the Holocaust.

People invoke “the First Amendment” as if those words would settle whatever issue was being debated. But in truth the freedoms of speech and of the press have never been absolutes. The courts and society have repeatedly struggled to accommodate other interests along with those.

No other democratic society allows political campaigns remotely as expensive as those in the United States. By the twenty-first century, presidential candidates of the major parties were spending in excess of $100 million just for the primaries and other early stages.

Judicial elections used to be tame affairs, attracting little attention. In states where judges had fixed terms or had to face a periodic vote on whether they should continue, incumbents routinely won. But toward the end of the twentieth century, conservative political forces realized that judicial decisions had an impact on issues that mattered to them: social issues such as abortion as well as economic ones like punitive damages. So the conservatives opposed some sitting judges, spent increasing amounts of money to beat them, and succeeded in doing so in many cases. To limit the politicization of judicial elections, many states adopted rules that barred judicial candidates from stating their views on controversial issues: “I am against abortion” and the like.

The Republican Party of Minnesota challenged the rule as a violation of the First Amendment, and won in the Supreme Court in 2002. By a vote of 5 to 4, the Court held that politicization of the courts, if it increased, was a price that had to be paid for our system of free speech

The Minnesota decision seems to me an egregious misapplication of the First Amendment, treating it woodenly and ignoring the reality involved. The test of judicial decisions is not, as Justice Holmes said of political speech, “the power of the thought to get itself accepted in the competition of the market.” Some of the greatest judicial opinions have run against popular opinion—as did those of Holmes and Brandeis when they dissented from the punishment of radical speech. If judges announce their views in election campaigns, in effect telling the voters that they will decide this way or that, they appear to be just another species of politician. The commitment of judges should be to the law, to interpreting it as faithfully as they can, and not to current popular opinion.

Professor Zechariah Chafee Jr., whose writing on freedom of speech so influenced Justice Holmes, divided the subject into two large categories. “The First Amendment,” he wrote, “protects two kinds of interests in free speech. There is an individual interest, the need of many men to express their opinions on matters vital to them if life is to be worth living, and a social interest in the attainment of truth. . . .”

Unlike many advocates of free speech as a search engine for truth, Holmes was really prepared to risk severe consequences. Professor Blasi put it: Holmes, the old soldier and proud Darwinist, thought that one of the valuable functions of dissenting speech, including speech that advocates violent revolution, is its capacity to generate some of the grievances, aspirations and mobilizations that force political adaptation and transformation. . . . Probably the most energizing contribution that the freedom of speech can make is simply to leave people free to follow their political thoughts wherever they might lead—free, that is, to think the unthinkable regarding political loyalty, consent, obedience and violence.

A final argument for broad freedom of expression is its effect on the character of individuals in a society. Citizens in a free society must have courage—the courage to hear not only unwelcome political speech but novel and shocking ideas in science and the arts

Many of the great advances in the quality—the decency—of American society were initiated by judges: on racial justice, on respect for the equal humanity of women and homosexuals, on freedom of speech itself.

The truth is that bold judicial decisions have made the country what it is, from John Marshall’s expansive vision of the nation to Brown v. Board of Education. Only that kind of judicial boldness—of courage—will preserve a free society in an age of international threats and of governments ready to use them to advance their own power.