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Anthony Lewis tells us how these rights were created, revealing a story of hard choices, heroic (and some less heroic) judges, and fascinating and eccentric defendants who forced the legal system to come face-to-face with one of America's great founding ideas.
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By Dudley H. Williams on 12-21-11
Freedom of Expression: 163 years of Solitude
This Audiobook is a tour de force of its subject matter. It traverses what would have been an arcane topic in an accessible and easy to understand manner. Although breath-taking and awe-inspiring, the simplicity in which the content is conveyed makes it informative and highly recommendable.
The First Amendment provides that Congress shall make no law abridging the freedom of speech or press. I’ll discuss some of those Supreme Court opinions Lewis has brought to life in this book.
In Ch.2 Lewis deals with the Sedition Act of 1798 which made punishable utterances deemed detrimental to the Government, House or President. Three of the presiding officers in prosecutions under the Act were Supreme Court Judges. Given the standing of these Judges (who also brought out convictions), the constitutionality of the Act would almost surely have been upheld in the Supreme Court. It was only in 1964, in NYT v Sullivan that the Supreme Court pronounced upon the validity of the Act — 163 years after the date set down in the Act itself for its expiration, to wit March, 3 1801.
Ch. 3 introduces Patterson v Colorado in which Justice Holmes dismissed a First Amendment defence and upheld a conviction of contempt of court where the defendant had criticised a Judge. In 1917 Congress enacted the Espionage Act which in 1919 led to 3 Supreme Court First Amendment judgments, all by Justice Holmes.
Schenck is judicially of the most importance. In affirming the defendant’s conviction, Justice Holmes made a statement of perennial impact: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Holmes gave the following formula for deciding these cases: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Lewis says that these “Delphic Words”, have been scrutinised for generations by scholars.
Three great dissenting judgments were delivered between 1919 and 1929 by Justices Holmes and Brandeis. This “remarkable pair” (as Lewis calls them) would shape the Supreme Court opinions on the First Amendment profoundly in later years.
Abrams v US (1919): Justice Clarke, for the majority, dismissed the First Amendment arguments and affirmed the conviction. Justice Holmes (with Justice Brandeis) held that he never had any reason to doubt that the questions of law before the Court in Schenck, Frohwerk and Debs and he confirmed that they had been rightly decided. Holmes said that he didn’t doubt that the Government constitutionally may punish speech that produces or is intended to produce a clear and “imminent” danger that it will bring about “forthwith” certain substantive evils. The words I have put in inverted commas don’t appear in the so-called “Delphic Words” of the Schenck decision quoted above.
Holmes said that “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 arms or have any appreciable tendency to do so.” Therefore the harsh sentences of 20 years have been imposed for the publishing of 2 leaflets that the defendants had as much right to publish as the Government had to publish the Constitution now vainly invoked by them. Lewis elaborates on this apparent about turn by Holmes and gives possible explanations for this, but in essence, the mystery remains.
Whitney v California (1927): Justice Brandeis wrote the dissenting opinion, regarded by many as the greatest judicial statement of the case for freedom of speech. Brandeis said that those who won independence 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 ordinarily adequate protection against the dissemination of noxious doctrine, that public discussion is a political duty, that this should be a fundamental principle of the government, that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, that recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. The Governor of CA pardoned Whitney, quoting Brandeis’ dissent at length in his pardon message.
US v Schwimmer (1929): Lewis relates that, when he was reporting on the Supreme Court for the NYT around 1960, he was talking to Justice Frankfurter in his Chambers. The Judge handed him the report of the Holmes dissent in US v Schwimmer. Lewis read the opinion and when he came to the paragraph ending with the words “Sermon on the Mount” he felt his hair rise at the back of his neck.
Justice Holmes said: “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. I think that we should adhere to that principle with regard to admission into, as well as to life within this country. And recurring to the opinion that bars this applicant's way, I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount.”
Ch. 4 contains Stromberg v CA (1931) in which the majority for the first time upheld a First Amendment defence. Having enforced it as law, the Court faced the challenge of defining from case to case what the words of the Amendment meant. Giving concrete meaning to its all-embracing words was a daunting and endless job, as restrictions in some cases inevitably had to be imposed on the freedom of expression. Words that were not liberally spoken or printed have been given protection as in the Stromberg case where the defendant was not prosecuted for uttering words, but for carrying a red flag — held to be “symbolic speech” and given First Amendment protection.
In Near v Minnesota (1931 ) the ban on an Anti-Semitic publication was overturned on First Amendment grounds. This decision was regarded as a great bulwark of press freedom, and it is because of this judgment that it is now very difficult to convince a Judge to issue a PRIOR restraint on the press. Although the court held that remedies for libel remained available and unaffected, this decision freed the author of a damaging statement from proving the truth of a statement made BEFORE publication.
In NYT v US (1971) the NYT published top secret documents (the Pentagon Papers) from a secret official history of the still on-going Vietnam War. Pres. Nixon alleged that the documents threatened national security. The Supreme ordered that the NYT could resume publication.
NYT v Sullivan (1964) deals with a libel suit AFTER publication. The Court was required to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct. At the time of the Sullivan case there were certain evidentiary presumptions favouring the defendant in a libel suit. The NYT couldn’t discharge the presumption of proving the truth of its publication in all material respects and the trial Judge found that the allegations were thus libellous. The NYT appealed to the Supreme Court. Until then libel had always been regarded as outside the protection of the First Amendment and no libel judgment had ever been found to violate the guarantees freedom of speech and press. Counsel for the NYT set upon the unenviable task of requesting the Supreme Court to reverse a long chained course of legal history — a route the Court had always been reluctant to follow.
The defence argued that the law, which prohibited criticism of public officials, should be compared to the Sedition Act of 1798 and that the Court should declare this Act unconstitutional. Justice Brennan held that the court considered this case against the background of a profound national commitment to the principle that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Justice Brennan said that the Sedition Act “first crystalized a national awareness of the central meaning of the First Amendment.” Thus the Act was found to violate the First Amendment 1963 years after its expiry date..
In Ch. 6 Lewis asks whether journalists have a constitutional privilege unavailable to others. He considers Branzburg v Hayes (1972)— the first Supreme Court judgment on a press privilege claim. At issue was whether requiring newsmen to appear and testify before grand juries abridges the right to freedom of speech and press. Justice White, for the majority, held that it did not. Although news gathering may be thus hampered, the press is anyway regularly excluded from grand jury proceedings, Supreme Court conferences, meetings of other official bodies gathered in executive session, and meetings of private organizations.
Justice Powell concurred but held that a newsman is not without remedy if he believed that the grand jury investigation wasn’t being conducted in good faith or if the information sought only bears a remote and tenuous relationship to the subject of the investigation. Judges should consider these matters on a case by case basis. Many lower courts read Justice Powell’s opinion as effectively modifying Justice White’s flat rejection of a journalist’s privilege claim.
In Ch. 7 deals with the culture of fear under various Statutes which criminalises acts against organised institutions. In Gitlow v People (1925) the defendant was convicted of criminal anarchy. The majority of the Court dismissed the First Amendment argument and affirmed the conviction. However, the Court for the first time held that that freedom of speech and of the press protected by the First Amendment, are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States. The court concluded that previous case law to the effect that the Fourteenth Amendment imposed no restrictions on States concerning freedom of speech, was not determinative of this question.
In De Jonge V Oregon (1937) the defendant helped to conduct a meeting held under the auspices of the Communist Party. The sole basis for the conviction was that CP had called the meeting. There was no charge that a criminal syndicalism or violence was conducted at the meeting. The Supreme Court overturned the conviction in a unanimous decision. Hughes CJ did not apply the “clear and present danger” test but relied solely on the question as to whether or not there was a violation of freedom of speech or assembly protected by the First Amendment. Hughes stated that the right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental.
Ch. 8 deals with Cohen v CA in which the defendant was convicted for walking through the corridors of a court wearing a jacket on which was visibly inscribed the words: “F *** the Draft”. Justice Harlan, in upholding the defendant's right to freedom of expression said: “One man’s vulgarity, is another man’s lyric.”
In Ch. 9 Lewis examines the tolerance, apparently unique to US jurisprudence, surrounding “Hate Speech”. In Brandenburg v Ohiio (1969) the defendant, a KKK member, said: “Personally, I believe the n----r should be returned to Africa, the Jew returned to Israel.” The Supreme Court held that his words were protected by the First Amendment.
3 of 3 people found this review helpful
By Roy on 04-12-09
The First Amendment Lives
This is the well written and expertly read book by Pulitzer Prize columnist Anthony Lewis about the First Amendement of the US Constitution. Lewis places the Amendment in historical contest, relates key cases which have shifted the meaning and interpretation of the amendment over the years, and helps the novice to Constitutional law better understand its meaning. The book is peppered with stories which illustrate the flow of high court thinking and judgements. Along the way tangential events and cases involving freedom of the press, privacy and other issues are explored in light of the First Amendment.
The author has a definite ax to grind so far as the second Bush administration is concerned, but this does not detract from the over all value of the book. Positively, the book compares Freedom of Speech as practiced in the US with the British tradition as well as others which is very interesting.
This is a book well worth the time of all who enjoy freedom of speech. It will be interesting to everyone taking the time to listen.
4 of 5 people found this review helpful