The Ever-Evolving First Amendment
by Anthony Lewis.
Basic Books. 221 pages. $25.
BY BETH SCHWARTZAPFEL
Special to the Journal
During the run-up to a key presidential election, Matthew Lyon wrote a letter to the editor of his local paper. In it, Lyon mocked the sitting president’s “continual grasp for power” and his “ridiculous pomp, foolish adulation and selfish avarice.” Under the watchful eye of a Supreme Court justice, Lyon was convicted of “making odious or contemptible the president and government, and bringing them both into disrepute.” He was sentenced to four months in prison and a $1,000 fine.
This story sounds like one that could not happen in the United States. In fact, Lyon was arrested in his home state of Vermont and convicted under the Sedition Act, in 1798, less than a decade after the Bill of Rights — with its famous assertion that “Congress shall make no law . . . abridging the freedom of speech, or of the press” — was ratified.
In his new book, Freedom for the Thought That We Hate: A Biography of the First Amendment, Pulitzer Prize-winning journalist and professor Anthony Lewis brings this and other stories to vivid life to demonstrate that the First Amendment was, and continues to be, a moving target.
Tracing the origins of the First Amendment to King Henry VIII, Lewis writes that English censors dispensed “previous restraints” that regularly prevented books and newspapers from being published. Early interpretations of the First Amendment were that it protected Americans only from English-style previous restraints, and, what’s more, applied only to the federal government — not the states (“Congress shall make no law . . .”).
As the country and the Supreme Court evolved, approaches to the First Amendment changed, too. But it wasn’t until the 1920s and ’30s that the Court consistently began enforcing the freedoms of speech and of the press as we know them today.
In engaging and accessible style, Lewis considers the ways in which the Court has weighed freedom of speech and of the press with other rights that Americans hold dear. The right to privacy, for instance, versus the right of the press to publish information about one’s personal life. The right of the press to hold policy-makers and public figures accountable versus the right of those persons to not be misrepresented, at best, libeled at worst. The right of a defendant to an unbiased jury versus the right of a press to report on a case as it unfolds. And, in a timely example that turns out to be as old as the country itself, the right of the citizens to their civil liberties versus the responsibility of the government in times of war and danger.
Lewis takes a stand on some controversial issues, breaking with major journalists’ organizations to oppose a broad shield law protecting journalists from grand jury subpoena, arguing against Supreme Court decisions that identify campaign contributions as protected speech, and asserting — reluctantly, it seems — that “we should be able to punish speech that urges terrorist violence to an audience . . . whose members are ready to act on the urging.”
It’s hard to imagine a book about legal history reading like a page-turner, but this book does. The Supreme Court justices whose decisions have shaped our country emerge as conflicted and principled human beings. The questions that have yet to be settled press impatiently against the book’s pages, reminding us that the First Amendment continues to shift under our feet even as we read.
Ultimately, Freedom for the Thought That We Hate is both a paean to the First Amendment and a recognition of its limitations. In a far-reaching and sophisticated reading of American history, Lewis argues that freedom of speech and freedom of the press are nothing without their practitioners.
“Even in a country with constitutional guarantees of freedom, something more is needed to resist fear and its manipulators,” he writes. “That is courage.” With this compelling book, Lewis demonstrates just that.
