|
May-June 2008
|
< previous | 1 | 2 Had this approach prevailed, the kinds of criticisms that ultimately helped turn the public against the Vietnam War might never have occurred, nor might much contemporary discussion of the Iraq War. But the Court’s easy tolerance for the repression of speech proved short-lived. The foundations for modern doctrine—under which Americans are, in Lewis’s words, “freer…to say what we think than any other people, and freer today than in the past”—began to take shape only when Justice Holmes, who wrote the opinion upholding Debs’s conviction, appears to have had an almost immediate change of heart. Although he claimed that his position was consistent throughout, after the Court’s 1919 summer recess he abandoned his prior emphasis on “the natural and intended effect” of radical protests in provoking resistance to government policies and emphasized instead, in a dissenting opinion in the fall, that “Congress certainly cannot forbid all effort to change the mind of the country.” He continued,
During the next decade, he and his colleague Louis Brandeis, LL.B. 1877—writing mostly in dissenting or concurring opinions—provided vital intellectual and rhetorical foundations for contemporary First Amendment doctrine, which provides more “freedom for the thought that we hate” than the law of any other nation in the world. For example, almost every other western democracy has signed international treaties that call for signatories to prohibit and punish speech that incites racial hatred. In the United States, by stark contrast, most if not all speech preaching racial hatred is protected by the First Amendment. “Freedom for the thought that we hate” is freedom for Nazis brandishing swastikas to march in Jewish neighborhoods—indeed, in the famous Skokie case, to march through a village populated largely by Holocaust survivors—and for members of the Ku Klux Klan to use vicious epithets in advocating the suppression of African Americans. The Supreme Court has also held that cigarette companies have a right under the First Amendment to place advertising billboards in close proximity to schools and playgrounds—even though tobacco is an addictive product on which most smokers become hooked while still of school age. A large pornography industry also thrives under the First Amendment. Although the Supreme Court has held that “obscenity” enjoys no constitutional protection, it has defined obscenity so narrowly that “adult” films, magazines, and pictures are a staple of contemporary American culture. Is this state of affairs an occasion for American pride in protecting free speech, or is it “freedom for the thought that we hate” run riot? And what framework should we use in answering this and similar questions? These questions have enduring currency because, although freedom of speech in the United States is very broad, even today no one thinks that absolutely all speech should be protected. Going beyond false cries of fire in crowded theaters, most people do not think the First Amendment does or should protect blatantly false advertising (even if it protects billboards advertising cigarettes), or verbal threats, or speech offering bribes. The Supreme Court has also allowed the Federal Communications Commission to ban “indecent” speech on the radio and in broadcast (rather than cable) television—as illustrated by the steep fine that followed Janet Jackson’s “wardrobe malfunction” during her halftime performance at the 2004 Super Bowl. Whatever one may think about these examples, the Supreme Court clearly needs to draw lines. But where? To provide a general theory indicating where lines between protected and unprotected speech should be drawn is a central ambition of academic theorists who write about the First Amendment. Some of their writing is brilliantly provocative. Some is turgid nearly beyond belief. Lewis quotes a few of the best theorists, but only very briefly, near the end of his book. Otherwise, he avoids theory—or the effort to provide general principles explaining which kinds of speech should be protected and which should not—almost entirely. Instead, what his book does well, even superbly, is to explain how the law has developed historically in a number of doctrinal areas, including those governing the rights of radical protesters, of disseminators of sexually explicit speech, and of media outlets that want to disclose facts that intrude on people’s privacy. Like most biographers or historians, Lewis drops in his own opinions, but he does not identify the theory, if any, that underlies them. As a former reporter and columnist for the New York Times, Lewis has especially interesting opinions about Supreme Court decisions involving the press. He lavishes perhaps his highest praise on New York Times v. Sullivan (the subject of his 1991 book, Make No Law), which holds that the press cannot be sued for criticizing public officials, even when reporters and editors make factual mistakes that damage officials’ reputations, unless the reporters and editors acted with “reckless disregard” for the truth. And although it is hardly news when a journalist praises a decision expanding journalists’ rights, Lewis is impressively evenhanded in assessing the protections that the First Amendment should give to the press. For example, he debunks claims that the First Amendment should be read to create a “reporters’ privilege” that would invariably shield journalists from having to reveal the identity of their sources to juries and grand juries.  
 
 
|
