Book Review
Freeing Speech
How judge-made law gave meaning to the First Amendment
by Richard H. Fallon
Anthony Lewis’s Freedom for the Thought That We Hate: A Biography of the First Amendment offers a lucid and engaging overview of American free-speech law. The former Nieman Fellow has twice won the Pulitzer Prize, and this volume puts the skills that earned him those accolades much on display. Again and again, he brings to life the dramatis personae in leading cases, plucks out moving or telling quotations, and explains who won and who lost in order to provide a clear introduction to First Amendment doctrine.
Lewis ’48, NF ’57, styles the book “a biography.” In fact, it is more nearly a history in which unfolding events are presented as teaching by example—sometimes positive and sometimes negative example. He begins by sketching the hated traditions of British censorship against which the American ideals of free speech developed. By the late eighteenth century, various state constitutions included guarantees of freedom of the press. When the Constitution of the United States that emerged from the Philadelphia Convention contained no bill of rights, there was widespread sentiment that the omission needed to be rectified. The first Congress thus drafted and the states ratified a Bill of Rights, the First Amendment of which guarantees that “Congress shall make no law…abridging the freedom of speech, or of the press.”
Interestingly, however, there is considerable uncertainty about what the Framers and ratifiers of the First Amendment understood it to protect. Accordingly, in Freedom for the Thought That We Hate, Lewis scrupulously avoids claiming that the “original understanding” of the First Amendment’s reach resolves contested cases that have come before the Supreme Court. First Amendment law, Lewis emphasizes, is almost exclusively judge-made law, nearly all fashioned in the past 90 years.
Because early Congresses seldom passed laws attempting to punish speech, the Supreme Court never decided a case invoking the Free Speech clause before World War I. But once the country had entered the conflict, Congress enacted an Espionage Act that banned speech tending to cause resistance to the draft or to military authority. Startlingly, from a modern perspective, the Supreme Court upheld the convictions of dissident speakers in all the Espionage Act cases that came before it. In the first of those cases, in the majority opinion by Justice Oliver Wendell Holmes Jr., A.B. 1861, LL.B. ’66, LL.D. ’95, the Court began by establishing that the First Amendment could not possibly protect all speech. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic,” Holmes wrote. With absolute protection for all speech thus untenable, the Court held in 1919 that speech would receive no protection under the First Amendment if it posed a “clear and present danger” of instigating serious harms.
Although the “clear and present danger” test sounds as if it might have conferred substantial protections on critics of the United States’s involvement in World War I, early cases required almost no evidence concerning what danger the defendants’ utterances posed. In one notorious case, the well-known radical political leader and former presidential candidate Eugene V. Debs was sent to jail based on a political speech that he gave to a Socialist convention on a Sunday afternoon. Given that Debs’s audience might have been persuaded by his denunciations of war, the Court reasoned that his speech’s “natural and intended effect would be to obstruct recruiting.”
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