February 14, 2008


Freedom for the Thought That We Hate: A Biography of the First Amendment. By Anthony Lewis. Basic Books. $25.

      Now that we are well into presidential-campaign silly season, with candidates making promises they know they cannot keep and making statements whose only intent is to sway whatever audience the statements are addressed to, it seems a good time to consider the whole issue of free speech in the United States. That is what longtime New York Times columnist Anthony Lewis has done in Freedom for the Thought That We Hate. Lewis goes back to the adoption of the First Amendment, the guarantor of free speech, in 1791, and points out that the Supreme Court did not really begin to enforce free-speech rights until 1919 – since which time the pendulum has swung back and forth toward more or fewer restrictions on what may be said, when, where, and by whom.

      Lewis makes an interesting point for constitutional scholars: he argues that judges led the way toward greater free-speech rights, simultaneously guiding the public and responding to the tenor of their times. Lewis particularly lauds Justice Oliver Wendell Holmes Jr. and Justice Louis D. Brandeis, whose views on free speech – often expressed in dissents – helped pave the way for a more expansive view of free-speech rights in the United States than in nations to which the U.S. is otherwise close, such as Great Britain and Canada.

      Lewis has some strong words for his fellow journalists, especially those who have tended over the years to get too cozy with the powerful: “The American press has been given extraordinary freedom by the Supreme Court’s interpretations of the First Amendment. In return, it owes society courage. It must resist the lure of obeisance to power. …Only then can [reporters and editors] perform the press’s patriotic function of holding government to account.”

      All this is extremely high-minded and of great concern to press barons, journalists, scholars of constitutional law, and others of like mind and like intellect. But Lewis does a poorer job of showing why people who live in less rarefied strata of society should care about constitutional freedom of speech. The ways in which most people’s everyday lives are affected may be free-speech matters to opinion makers but “who cares?” moments to others, as Lewis seems intermittently to be aware: “The Federal Communications Commission stuck doggedly to its role as nanny, imposing heavy fines on broadcasters who televised the 2004 Superbowl game in which Janet Jackson, in a halftime show, unexpectedly exposed a breast. But most Americans probably couldn’t care less.” So what should most Americans care about when it comes to this basic constitutional issue?

      This is the question that Lewis does not answer, or even pose. He writes effectively and stylishly for a jury of his peers, admonishing some and praising others, comparing U.S. free speech to versions of the same right elsewhere, parsing legal case after legal case for the nuggets of wisdom – or piles of foolishness – to be found therein. Lewis proclaims as self-evidently true that “citizens in a free society must have courage – the courage to hear not only unwelcome political speech but [also] novel and shocking ideas in science and the arts.” This is a noble aim that will no doubt lead Lewis’ fellow opinion-shapers to nod their heads in sage agreement. But someone other than Lewis will have to make the connection between these lofty ideals and the everyday lives of ill-informed and unconcerned people who, on Election Day, get exactly the same number of votes per person as do Lewis and the intelligentsia.

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