Freedom for the Thought That We Hate

INTRODUCTION

Ours is the most outspoken society on earth. Americans are freer to think what we will and say what we think than any other people, and freer today than in the past. We can bare the secrets of government and the secrets of the bedroom. We can denounce our rulers, and each other, with little fear of the consequences. There is almost no chance that a court will stop us from publishing what we wish: in print, on the air, or on the Web. Hateful and shocking expression, political or artistic, is almost all free to enter the marketplace of ideas.

Other countries that we think of as like our own—Britain, for example—have many more restrictions on what can be said. Why are we different? Where does our extraordinary freedom come from? The answer commonly given is “the First Amendment.” That amendment to the United States Constitution provides, among other things, that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”

But those fourteen words cannot in themselves account for our great freedom, because over many decades they did not protect critical expression. In 1798, just seven years after the First Amendment was added to the Constitution, Congress passed a law that punished disrespectful comment on the president; editors were imprisoned for mocking President John Adams. A century later, under another congressional statute, men were sentenced to twenty years in prison for criticizing a policy decision by President Woodrow Wilson.

Today every president is the target of criticism and mockery. It is inconceivable that even the most caustic critic would be imprisoned for his or her words. If such a prosecution were attempted, the courts would throw it out as in conflict with the First Amendment. So something has happened to the fourteen words of the speech and press clauses. Their meaning has changed. Or, more accurately, the understanding of those words has changed: judges’ understanding and the public’s.

To say that is to open the way to appreciating a mysterious and remarkable process: the changing interpretation of our fundamental law. “We are under a Constitution,” Chief Justice Charles Evans Hughes said, “but the Constitution is what the judges say it is.” That may sound today like a cynical description of what critics on the Right call “judicial activism.” But Hughes, who said it in 1907, three years before he was first appointed to the Supreme Court, thought he was stating the obvious. Someone has to interpret the words of our eighteenth-century Constitution and its amendments; under our system as it has developed, that is the job of the courts.

Judges do not operate in a vacuum. They are influenced by the attitudes of their society, and the society in turn may be influenced by what the courts say. So history, law, and culture contribute to the process of defining what the Constitution commands.

When we say today that the First Amendment guarantees our freedom, we mean not only its brief text but the vast body of law that judges have built up over the years in applying it to issues brought before them. When a dissident burns the flag to protest official policy, is that a form of expression protected by the First Amendment? Is political campaign spending immune from regulation as protected “speech”? What about a false and damaging attack on a politician: Can he or she collect damages for libel?

In answering such questions, courts look to what earlier judges have said on more or less analogous issues. Each decision becomes a precedent for others. It is called the “common-law method,” because for centuries, English and then American judges built up the rules of property, contracts, and the like in what was called the “common law”: law defined not by explicit statutes but by judicial decisions.

The defining of our fundamental laws in this way is a drama, and nowhere more so than in the law of the First Amendment. It has been a drama since 1791, and it still is today: a tale without end. First Amendment law poses hard questions, for judges and the rest of us. How unregulated a society do we really want? Where should the line be drawn between liberty and order? Is the demand for “no law” abridging the freedom of speech and press an absolute? Those are some of the questions I shall discuss in this book as I explore the meaning of the First Amendment in law and society.

The story of the First Amendment is powerful testimony to the crucial role of judges in a political system that rests on a foundation of law. Voters are the ultimate sovereigns in a republic, as James Madison and the other Framers of the Constitution said. But transient political majorities cannot be expected to articulate the fundamental values of a constitution, least of all when the majority’s immediate interest conflicts with those values—as, from time to time, it will. Judges, serving for long terms and bound by their commissions to look beyond momentary partisan conflicts, are in the best position to give voice to the deeper values.

So the American experience teaches. Until World War II it was a uniquely American practice to give courts, especially the Supreme Court, a significant role in the structure of governance. No other democratic society had a constitution enforced by judges. In Britain and its empire, the doctrine of parliamentary supremacy prevailed; whatever a parliament did—however discriminatory, however unjust—was law. But the tyrannies of the twentieth century brought a change.

Aharon Barak, then the president of the Israeli Supreme Court, explained the change in a 1998 lecture. In the past, he said, people thought that respect for basic values “could be guaranteed by relying on the self-restraint of the majority.” But after the Nazis, the lesson was that there must be “formal limits on the power of the majority. The concept that ‘It is not done’ needs to receive the formal expression, ‘It is forbidden.’”

And so, country after country adopted constitutional democracy, giving the last word to judges on basic issues. That was the pattern in a state with as profound a republican system as France, and then in a reconstructed Germany. It was followed in the great former British territories, notably India and South Africa. And the countries of Europe adopted a European Convention on Human Rights, enforced by a Court of Human Rights. In time, even Britain agreed that its own courts should be bound by the European Convention.

As the history of the First Amendment shows, putting a guarantee into a charter is no assurance that it will be enforced. After all, it took more than a century for the courts to begin protecting dissenting speakers and publishers from official repression in the United States. Or to put it another way, it took time for judges to build on the fundamental promise of those fourteen words in the First Amendment: that this would be a country of free speech and freedom of the press. Time and imagination and courage. Timid, unimaginative judges could not have made America as extraordinarily free as it is.

Freedom to speak and write as you wish is the inescapable necessity of democracy. The judges of the European Court of Human Rights understood that when, in 1986, they considered the right to criticize political leaders. They did not consider the issue in a vacuum; they built on American experience and decisions.

An Austrian journalist, Peter Michael Lingens, had written articles charging a politician with the “basest opportunism.” The politician sued for libel, and the Austrian courts awarded him damages. Lingens went to the European Court of Human Rights, which found that the libel judgment against him violated the Convention on Human Rights—its clause guaranteeing freedom of expression. That freedom, the court said, “constitutes one of the essential foundations of a democratic society. . . . It is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive . . . but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no ‘democratic society.’” In other words, as Justice Oliver Wendell Holmes Jr. of the United States Supreme Court said, “freedom for the thought that we hate.”

When a constitutional provision has no discernible history, as is true of the First Amendment—no meaningful discussion by its authors of what they meant—how do judges begin to build on its words to decide concrete cases? That is a subject of endless debate. But one thing is sure. Judges, however bold, are part of their society and are influenced by its attitudes. To give a stark example: The Nazi experience made more Americans, and judges, understand the devastating character of religious and racial discrimination.

Justice Ruth Bader Ginsburg of the Supreme Court, speaking at the University of Cape Town, South Africa, in 2006, said: “What caused the Court’s understanding to dawn and grow? Judges do read newspapers and are affected, not by the weather of the day, as distinguished constitutional law professor Paul Freund once said, but by the climate of the era.”

Justice Ginsburg was talking about gender discrimination. But her point applies to the drama of the First Amendment’s expanding interpretation since early in the twentieth century. Great judges like Holmes saw, before most judges and most Americans, that freedom of thought was an essential element in the success of our diverse society. But judicial commitment to openness of expression grew as citizens’ did; each informed the other. And it is worth remembering that the 1798 statute criminalizing criticism of the president, which was enforced by judges, was rejected by American voters in the election of 1800 as incompatible with the First Amendment and with American ideals.

The meaning of the First Amendment has been, and will be, shaped by each American generation: by judges, political leaders, citizens. There will always be authorities who try to make their own lives more comfortable by suppressing critical comment. There will always be school principals like the one in Wilton, Connecticut, who in 2007 canceled a student play about the war in Iraq because it might disturb some families. But I am convinced that the fundamental American commitment to free speech, disturbing speech, is no longer in doubt.

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Beginnings

The American commitment to freedom of speech and press is the more remarkable because it emerged from legal and political origins that were highly repressive. The colonists who crossed the Atlantic in the seventeenth century came from an England where it was extremely dangerous to utter a thought that differed from official truth. The state defined what was allowable in politics and, perhaps even more rigorously, in religion.

Repression was accomplished by two different devices. The first was preventive: a licensing system for all publications. In England in 1538, King Henry VIII issued a proclamation requiring anyone who wanted to print something to get a license first. The requirement applied to everything: books (Bibles were the biggest seller), pamphlets, shipping schedules. The system created valuable printing monopolies, and it prevented the publication of unorthodox opinions.

The licensers were bureaucrats who operated with utter arbitrariness. They took as long as they wished to decide whether something could be printed, and they gave no reasons for their decisions. When they said no, there was no appeal. This system of previous restraints on publication, as they were called, provoked the classic protest against censorship, by the poet and essayist John Milton: “Areopagitica—A Speech for the Liberty of Unlicensed Printing.”

When Parliament overthrew King Charles I in the civil war of the 1640s, it abolished the royal licensing system. But as is so often the case, the rebels became less tolerant of dissent when they exercised power. In 1643 Parliament enacted its own licensing statute. It lasted until 1694, when Parliament let it die by failing to renew the law.

The second repressive device may have been even more intimidating. It was the law of seditious libel, which made it a crime to publish anything disrespectful of the state or church or their officers. The premise of seditious libel was that these institutions had to have respect for the country to avoid the terrible danger of social chaos. If you published something critical—a charge, say, that an official had taken a bribe—it did you no good to prove that the statement was true. Truth was no defense to a charge of seditious libel. The crime lay in reducing public respect for the official, so a truthful criticism might be even worse than a false one. A defendant was entitled to trial by jury, but the judge alone (appointed by the state) decided whether the publication was seditious; the jury considered only whether the defendant had published it. Punishment upon conviction included the death penalty, carried out by the lingering horror of being hanged, drawn, and quartered.

Curiously, from our viewpoint today, critics of the licensing system often did not object to the rigors of subsequent punishment. “It is of greatest concernment in the Church and Commonwealth,” Milton wrote, “to have a vigilant eye how books demean themselves as well as men: and therefore to confine, imprison, and do sharpest justice on them as malefactors.”

Sir William Blackstone was the leading authority on the common law, including seditious libel. Like Milton, he drew a sharp distinction between it and prior restraint by licensing. “Where blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels are punished by the English law,” he wrote in 1769,

the liberty of the press, properly understood, is by no means infringed or violated. . . . [It] consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. . . . To punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, a government and religion, the only solid foundations of civil liberty.

Blackstone’s eminence notwithstanding, there was not much protection in his talk of a “fair and impartial trial” when judges relied on the slippery concept of “a pernicious tendency” to decide whether something was seditious and truth was not a defense.

Colonial America began with little tolerance of dissent. Puritans crossed the ocean for freedom to practice their religion, but they did not extend that freedom to others. Massachusetts hanged Mary Dyer in 1660 because she insisted on advocating her Quaker views. Colonial judges applied the common law of England, including the law of seditious libel. But the public began, after a time, to resist. That was the lesson of the first great legal test of press freedom in America, the case of John Peter Zenger.

Zenger was a New York printer. He printed—though he had nothing to do with the content—a newspaper, the New-York Weekly Journal, that attacked the royal governor of New York, William Cosby. Cosby had Zenger prosecuted for seditious libel. At his trial in 1735 Zenger’s lawyer, Andrew Hamilton of Philadelphia, argued that the criticisms of Governor Cosby in the newspaper were accurate. That was irrelevant under seditious libel law, as Hamilton knew—truth was not a defense. The judge, a Cosby appointee, so ruled. But Hamilton appealed to the jurors to ignore the judge’s ruling, make up their own minds, and free Zenger if they found the newspaper’s criticisms of Cosby to be true. The jury found Zenger not guilty: an extraordinary decision that could not formally change the law but that reverberated around the colonies and discouraged further prosecutions for seditious libel.

The newspapers of eighteenth-century America were raggle-taggle affairs, nothing like the highly capitalized metropolitan press known to us. Anyone could put out a newspaper by bringing the copy to a job printer like Peter Zenger. The papers were highly partisan, the editors often political party men. The New-York Weekly Journal that got Zenger in trouble was started and written by a political faction opposed to Governor Cosby. There was little pretense of objectivity. Even a figure as lofty as George Washington was not above rancid criticism. When he retired from the presidency in 1797, the Philadelphia Aurora called him “the source of all the misfortunes of our country” and said every American heart “ought to beat high with exultation that the name of Washington from this day ceases to give a currency to political iniquity.”

In a 1960 book, Legacy of Suppression, professor Leonard Levy argued that at the end of the eighteenth century—when the First Amendment was adopted—the much-vaunted liberty of the press in America was freedom only from prior restraint, not from punishment for disapproved words. The law of seditious libel was alive and well then, he said. His book caused a scholarly stir. But twenty-five years later, Levy mostly took it back. In a new edition of the book, retitled Emergence of a Free Press, he said further research had shown him that though legal theory remained repressive, in practice “the press conducted itself as if the law scarcely existed.” It was highly critical of politicians, indeed “habitually scurrilous.”

Prosecutions for seditious libel dwindled in the last decades of the eighteenth century, no doubt in part because the authorities feared they would outrage the public. But as late as 1803 an editor in Hudson, New York, Harry Croswell, was prosecuted in the state courts for an attack on President Thomas Jefferson. The story in his newspaper, The Wasp, said that while vice president under John Adams, Jefferson had paid a journalist to write savage assaults on Adams and Washington. (The journalist called Washington “a traitor, a robber and a perjuror.”) Croswell was convicted—but got out of jail when the New York legislature, a year later, made truth a defense against seditious libel charges.

In that turbulent mix of repressive law and an audacious press, the idea arose of committing governments to the principle of press freedom in their fundamental documents. Virginia was the first to act, in 1776. The Declaration of Rights that its colonial legislature adopted in that momentous year included this statement: “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” By the time the federal Constitution was drafted in 1787 and the First Amendment added in 1791, nine of the original thirteen states had such provisions in their constitutions or other basic documents.

Writers and printers were no doubt gratified to have their freedom hailed in state constitutions. But what did these provisions actually mean by “the liberty of the press”? Blackstone was highly influential in American courts; and many legal authorities agreed with him that the liberty meant only freedom from prior restraint, not from prosecutions for seditious libel. In that view, the warm words about freedom of the press did not mean much, since prior restraints had died out after England abandoned the licensing system for printing in 1694. Blackstone in effect offered freedom from a restraint that hardly existed any more.

And there was an even more profound doubt about the usefulness of the state calls for freedom of the press. Today we take it for granted that the words of a constitution are enforceable as law, a superior law that in lawsuits can trump current legislation. But that was not the received view in the eighteenth century. Some people did speak of constitutional provisions as legally enforceable. But they were generally thought of as mere admonitions to state legislatures, encouraging but not binding. The phrasing of the press-freedom clause in Virginia’s Declaration of Rights, quoted above, certainly sounds more like exhortation than law.

The first time judges enforced a constitutional provision to strike down an established common-law practice occurred in Massachusetts. In 1780, it acquired a constitution, largely drafted by John Adams, that began, “All men are born free and equal.” Three years later the Supreme Judicial Court of the commonwealth heard the case of Quock Walker, a Negro slave who said he had been promised his freedom and, when it was not forthcoming, ran away. His master, Nathaniel Jennison, found him and beat him. Jennison was prosecuted for assault and battery. He argued in his defense that slavery was long established in Massachusetts, and he had the right to seize and punish a runaway. But what was the significance of the language about “free and equal”? Chief Justice William Cushing said it was incompatible with slavery, which therefore could “no longer be tolerated.” With that, slavery ended in Massachusetts.

The federal Constitution of 1787 had no bill of rights—no guarantee of free speech or press or any other right. But it quickly acquired one under exigent political circumstances. When the Constitution was put to conventions in the states for ratification, opposition was fierce. The opponents included such notable advocates of liberty as Patrick Henry and George Mason of Virginia, who feared that the new federal government would have too much power and could oppress the people.

Conventions in the key states of Massachusetts, New York, and Virginia were leaning against ratification. Then, in Massachusetts, John Hancock came up with a device that persuaded some of the doubters. He proposed that the convention ratify the Constitution and at the same time call on the first Congress elected under it to adopt a bill of rights. With that, the Massachusetts convention voted for ratification, 187 to 168. The New York convention followed, by a vote of 30 to 27, and Virginia’s by 89 to 79. By such narrow margins did the United States come into being.

James Madison, a leading figure in the making of the Constitution, opposed the idea of a bill of rights at the time. He feared that listing some specific rights would lead to the view that others, overlooked in the drafting, were not valued. For protection of freedoms he relied on the fact that the Constitution gave only limited, named powers to the new federal government—so it would have no power over matters not mentioned, including the press. And he did not believe that declarations of rights were effective. In a 1788 letter to Jefferson, who was in Paris as the American minister, Madison dismissed what he called “parchment barriers” and said that bills of rights had been repeatedly violated “by overbearing majorities in every State.” He was evidently thinking of bills of rights as admonitions to legislatures, not as law enforceable in courts.

(In reply to Madison, Jefferson said there was one argument in favor of a bill of rights that “has great weight with me; the legal check which it puts in the hands of the judiciary.” Jefferson was evidently anticipating that the courts would enforce a bill of rights by holding unconstitutional legislation that was inconsistent with its provisions. But when Chief Justice John Marshall, in Marbury v. Madison in 1803, found a congressional statute invalid as a violation of the Constitution, Jefferson, now president, fumed that Marshall’s decision would “make the judiciary a despotic branch.” Consistency was not one of Jefferson’s virtues.)

Madison, despite his previous opposition to a bill of rights, pushed for one when he took his seat as a member of the House of Representatives in the first Congress. The contrary view had persuaded him, and perhaps he felt an obligation to carry out the wishes of the key state ratifying conventions. He got twelve constitutional amendments through the House and Senate. What is now the First Amendment was third on the list. The first two, dealing with the number of representatives and congressional salaries, were not approved by the necessary three-fourths of the states. The remaining ten were added to the Constitution on December 15, 1791, when the last needed state, Virginia, ratified them.