Say What?

In 1969, Anthony Lewis, already a veteran New York Times reporter, was given a column on the newspaper’s op-ed page, a pulpit from which he preached left-wing fire and brimstone for more than two decades until his retirement in 2001. But Lewis did not withdraw to the shores of Lake Wobegon, or wherever it is that arch-liberals go to live out the remainder of their days. He stayed in Cambridge, Massachusetts, where he has continued writing books between teaching stints at the Columbia School of Journalism and Harvard Law School.

One subject to which he has been passionately devoted for decades is the First Amendment. In his Make No Law (1991) he explored in considerable depth the law of libel, as defined by the landmark 1964 New York Times v. Sullivan case. Now he is back with Freedom for the Thought That We Hate, a more general treatment of court cases involving freedom of speech and the press. With only 189 pages of text set in large type, it is a cursory treatment of central topics rather than a sustained analysis. Nonetheless, as a gauge of where liberal opinion stands on some hot constitutional issues, it is of more than passing interest.

In today’s America, there is near-universal commitment to “the principle that debate on public issues should be uninhibited, robust, and wide-open”–the famous words of the Supreme Court in Sullivan. But throughout our history, as Lewis reminds us, the rights guaranteed by the First Amendment have come under threat. Indeed in 1798, seven years after the Bill of Rights was ratified, Congress passed the Sedition Act, banning “any false, scandalous and malicious writing or writings against the government of the United States.”

That nasty and brutish era was mercifully short; it came to an end when Thomas Jefferson took office in 1801. But American history has been punctuated by successive episodes in which our freedom to debate has been far less than uninhibited, robust, and wide-open. Nevertheless, the larger arc of liberty across more than two centuries has been thrusting upward and outward. If Congress made it a crime to write maliciously about the federal government in 1798, today Americans are perfectly free to call our president a war criminal, praise terrorists who slaughter their fellow citizens, publish classified diplomatic and military secrets, and purchase pornography 24/7 at any 7-Eleven. Anthony Lewis chronicles both the larger shift and the occasional backsliding in this Biography of the First Amendment.

Superficial though the volume may be, the subject matter is consistently engaging. One does not easily tire of hearing stories like that of William Sidis, born in 1898 and forcibly turned into a child prodigy by his father, a psychologist in the grip of twisted ideas. With intense public interest focusing on him when he entered Harvard at age 11, Sidis was soon to decline as precipitously as he had ascended. As an adult, he wrapped himself in anonymity, spending his days engaged in his hobby of collecting subway transfer tickets, about which he wrote a book. But in 1937 Sidis’s veil of obscurity was pierced by an essay in the the New Yorker that recounted what had become of him in remorselessly derisive terms.

Sidis sued for violation of privacy. The case rose to the U.S. Court of Appeals, but even as all sympathy, judicial and public, was with the New Yorker‘s pathetic victim, he lost on the merits. The court ruled that revelations of this nature must be allowed unless they were “so intimate and so unwarranted in view of the victim’s position as to outrage the community’s notions of decency.”

Two imperatives had collided-the right to privacy and freedom of the press-and one had to yield. Although Lewis sides with the court’s judgment here, freedom of the press, in his view, should not be a right that trumps all others:

This is only one of several junctures in which the principle of unfettered speech sits uncomfortably with other liberal desiderata, and that clash of concepts points to a significant division within liberalism. For if liberals formerly regarded themselves as unswerving guardians of the First Amendment, defending it from threats from the political right leveled in the name of patriotism (laws banning flag burning) or national security (laws imposing loyalty oaths) today a growing number of liberals want to limit free speech in the name of a left-liberal agenda.

To be sure, this is by no means an entirely new trend; certain feminists, for example, have long been ardent supporters of banning pornography, joining forces with conservative traditionalists in support of obscenity laws. But it is noteworthy when a mainstream liberal like Anthony Lewis joins in to relegate free speech to second place.

Campaign finance reform is a shining example. Lewis is hardly alone among liberals in being deeply troubled by the way money washes around politics, and he supports efforts to dry up the flow, frowning upon the Supreme Court’s 1976 ruling in Buckley v. Valeo that political spending and political speech are essentially one and the same. Remarkably, in certain electoral contexts, Lewis favors banning political speech altogether! In 2002, the Supreme Court considered a Minnesota law proscribing judges and would-be judges from setting forth their views on policy questions (such as abortion) during election campaigns. Lewis supported that highly restrictive law and calls the Court’s decision to strike it down an “egregious misapplication of the First Amendment, treating it woodenly and ignoring the realities involved.”

By no means do all of Lewis’s departures from free-speech orthodoxy fall neatly along left/right lines. He has, for example, come to regard Supreme Court rulings on hate speech as too tolerant. But in raising this issue, he is not making the case for things like campus speech codes, which he derides for their political correctness. Rather, the phenomenon he aims to combat is terrorist incitement. Current law protects all speech except that which is likely to bring about “imminent” lawlessness. In light of the bombings of the London and Madrid subways by fanatical Muslims, Lewis would go further: “I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging.” Actual evidence of “imminent” lawlessness need not (in his view) be required.

There is certainly something startling, even refreshing, in the way Lewis wanders off the reservation on this and other matters. But there is something disconcerting about the larger worldview in which they are embedded. Like so many other journalists of his generation, Lewis appears to be trapped forever in the Vietnam/Watergate era. Government, especially when it is under Republican control, appears to him to be at all times concealing illicit conduct abroad and engaged in depredations against civil liberties at home. In this eternally Nixonian world, the press, “with all of its defects, is often the only defense against the abuse of power.”

More than three decades have passed since the highly anomalous presidency of Richard Nixon. And wholly apart from the changes wrought by the passage of time, in the aftermath of 9/11 we dwell in a very different kind of place, facing a new and dangerous set of challenges. Lewis acknowledges this momentous transformation in his discussion of terrorist incitement. But in his treatment of other core national-security issues (government secrecy, for example) he remains a prisoner of the past. In response to September 11, he records with indignation, the Bush administration

There is a word for such a distorted description of events: It is called caricature, and it serves in this instance to inhibit serious thinking-including thinking by Lewis himself-about the complex problem of handling classified and unclassified information (such as blueprints of tunnels and bridges and airports) at a moment when our open society was, and remains, uniquely vulnerable.

You can readily grant Anthony Lewis the point that in the war on terrorism–and long before the war on terrorism–the government had overclassified and misclassified information, sometimes out of bureaucratic sloppiness, sometimes to conceal malfeasance. You can also go further and acknowledge that, over two centuries of American history, far worse abuses of power and violations of civil liberties have occurred in response to real and imagined foreign dangers. But you get the sense that Lewis would never concede that there should be any limits, based upon the requirements of national security, on what the press is free to report. That is, beyond the narrow exception set forth in the 1931 Near decision, in which the Supreme Court held that the government has the power to forbid, even by prior restraint, the publication of ultrasensitive information like “the sailing dates of transports or the number or location of troops.”

More than three-quarters of a century has passed since the Near case was decided, and if read literally, it is obsolete. The New York Times, taking the lead among American newspapers, has repeatedly demonstrated a willingness to splash secrets, including operational details about intelligence sources and methods, across its front pages. But in the danger this poses to American lives, the disclosure of information about highly classified counterterrorism programs is the modern equivalent of publishing the sailing dates of transport ships. Even if the government cannot show that the extreme step of prior restraint is a justified response to such recklessness, are there no circumstances under which it could punish such conduct after the fact?

Unfortunately, that is not a question Anthony Lewis deigns to discuss–although he makes plain that his answer is no. The lacuna is a pity. Lewis clearly knows a great deal about the First Amendment, and the reader is left curious about exactly what kind of argument he would mount if he engaged this issue with any depth beyond caricature.

Gabriel Schoenfeld is senior editor of Commentary.