A history of our first amendment rights shows we weren't always this free.
Published March 2, 2008|Updated March 24, 2008

The title, Freedom for the Thought That We Hate, is not what describes this book's contents. For that, look to its subhead: A Biography of the First Amendment.Former New York Times columnist Anthony Lewis has encapsulated the difficult birth, fitful adolescence and inconstant maturation of the free speech and press clauses of the Constitution.

For those who have studied law or who merely enjoy chewing on legal history, this book offers plenty to digest. Lewis, a two-time Pulitzer Prize winner, lays out in an easily accessible 189 pages the seminal legal cases and historical twists and turns that have brought the First Amendment to its present-day sinuous muscularity.

Lewis' analysis is not an especially exciting romp through history, but it is nicely paced, with a sprinkling of behind-the-scenes anecdotes and compelling stories that a good reporter like Lewis uses to breathe life into an otherwise dry series of court pronouncements.

In an effective device, rather than offer up a linear time line of pivotal events, Lewis has divided the book into areas of free-speech controversy.

Does the First Amendment protect political statements that may generate contempt for the country's leaders? Does it protect pornography or vulgarity? What about symbolic speech, such as flag burning? Whose interest should control when the right of a free press collides with the rights of criminal defendants to have their jury pools uncontaminated by sensational publicity? How should the courts handle the interest people have in privacy vs. a press that wants to disclose lurid details of their lives?

These questions rate their own chapters, with Lewis often offering his own perspective on whether the courts have struck the right balance. He doesn't always think so. Sometimes Lewis finds today's courts too deferential to free speech, faulting them for failing to take other interests into account.

It is disarming when this great defender of constitutional freedoms tells the reader that the press "is not always the good guy." After recounting the "contemptible treatment" of scientist Wen Ho Lee by five news organizations, including his own former paper the New York Times, Lewis argues against unqualified federal protections for reporters to shield their confidential sources.

What most readers might be surprised by is just how modern are our expansive free expression protections. As Lewis points out in his introduction, "It took more than a century for the courts to begin protecting dissenting speakers and publishers from official repression in the United States."

The sturdy rights that allow anyone from yours truly to Jon Stewart to denounce and criticize the government, its leaders and policies weren't consistently recognized by the courts until decades into the last century.

A 1918 sedition law in Montana provided for prison sentences of up to 20 years for uttering or printing anything deemed disloyal, profane or scurrilous. One traveling salesman, Lewis recounts, was sentenced to 7 1/2 to 20 years at hard labor for calling World War I food regulations "a big joke."

It was this law that was used as a model for the nation's second federal Sedition Act (the first one in 1798 was allowed to expire in 1801). This 1918 law, along with the Espionage Act of 1917, was invoked to prosecute more than 2,000 Americans, most of them simply politically outspoken against the war and not the least dangerous or seditious.

"The First Amendment is meant to assure Americans that they can believe what they will and say what they believe," Lewis writes. "But repeatedly, in times of fear and stress, men and women have been hunted, humiliated, punished for their words and beliefs."

This use of security threats, real and overblown, as a justification for government repression brings the story up to the present day. Lewis highlights the odious actions of the Bush administration in its "war on terror." He notes that while the administration's use of indefinite detention and torture don't engage the First Amendment, they are nonetheless "reminders that the freedoms of speech and of the press are not the only tests of a humane and free society."

As to these policies, Lewis says, the Bush administration has "worked to exclude press scrutiny - and hence public accountability - by the most sweeping secrecy in American history."

Lewis comes to his subject with great experience and depth. He was a Supreme Court reporter during the Warren court, when it was rousing the long-moribund protections of the First Amendment.

He wrote the bestselling 1964 book Gideon's Trumpet, about the 1963 Supreme Court case that established the right of criminal defendants to court-appointed counsel, a remarkable book that is still in print. In his opining for the New York Times for more than 30 years, Lewis always stood as an eloquent guardian of our rights.

Freedom for the Thought That We Hate strongly communicates Lewis' high regard for the courageous judges who have molded our nation's free expression rights into a bulwark against censorship and imposed orthodoxy. It is worth picking up this slim volume simply to be reminded of the growing pains it took to get here.

Robyn Blumner is a columnist and member of the St. Petersburg Times editorial board.

Freedom for the Thought That We Hate: A Biography of the First Amendment

By Anthony Lewis

Basic Books, 221 pages, $25