Freedom for the Thought That We Hate MP3 CD – August 23, 2016
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As Lewis points out, in the first decade following the American Revolution and the establishment of the Constitution, freedom of speech was not a significant issue. Most Americans were bound together, despite often extreme philosophical differences over governmental philosophy, and there were few attempts to oppress those on the opposing side. After John Adams succeeded George Washington to the presidency, however, the partisan chasm widened and harsh feelings grew. Allegedly fearing the tremors of the French Revolution and its possibility for chaos here (but really angered at Jefferson and his Democratic-Republican supporters), the Federalists in Congress passed the Alien & Sedition Acts of 1798 that criminalizes certain types of libelous speech by public figures, and the Adams administration signed off on them. Although relatively small by modern standards, dozens of Jeffersonians were arrested, tried, convicted, and then fined and/or thrown in jail. These actions produced such an uproar that they were soon rendered feckless by the American public, which swept Adams and the Federalists from power. Once Jefferson was inaugurated as president, he pardoned all of those prosecuted under the acts and remitted their fines. As Lewis notes, although the Supreme Court of the United States never ruled on the laws' constitutionality, today they would almost certainly be struck down as a violation of the First Amendment.
In the next section, Lewis covers the persecutions during, and subsequent to, World War One. Unfortunately, this jump forward in time is perhaps my biggest criticism of the book. Although Lewis does give a two-page summary that says there was no federal law restricting speech during this time, he certainly was aware that there were prosecutions during that time for sedition, particularly during the Civil War. Even if he had given a brief summary of whether or not it was the focus of much academic study or discussion in state courts that thereby influenced federal law later on would have been welcomed. However, this is a minor flaw in my opinion. The central figure of the World War One-era free speech trials is Justice Oliver Wendell Holmes, Jr. A thrice-wounded hero of the Civil War, Holmes more than most could speak of what it took to defend or wreck a society, so when he reversed his prior stance of upholding the convictions of communists and labor organizers, it was a strong indication that federal government had gone too far. Lewis also discusses the origins of that famous phrase of law, "fire in a crowded theatre," which I particularly enjoyed. He does offer some criticisms of Holmes, however, noting that certain types of speech may have a cumulative effect that ultimately leads to criminal activity, rather than simply restricting prosecution to immediately approaching events as Holmes advocated.
The next chapters cover the Red Scares of McCarthyism, attempts at suppressing the main speakers of the Civil Rights Movement, the protests over the Vietnam War, and some major cases of the modern era. Lewis notes that recently obscenity has been almost totally removed as a justification for speech restrictions, but I wish he had discussed more what caused society and the Court to change its mind on the issue, and also how governments have utilized new tools, such as zoning laws, to achieve the same effects. In his final sections, Lewis discusses where the future of free speech lies and this is perhaps where I have my strongest disagreements with him. In one part, he discusses the path of Europe and its embrace of laws criminalizing hate speech. While I understand that speech can produce serious consequences, I think it is a dangerous idea to throw someone in jail for what they say about a particular religious, ethnic, sexual, or national group, no matter how crude the language. He also discusses issues of national security and the Bush administration (and now Obama administration)'s efforts to combat terrorist activity. I share his concern that we are approaching a dangerous line in what types of activity we are forbidding and what is a justifiable cause for intruding into someone's privacy, but nonetheless I suspect we will not have an accurate idea of what really went on during the War on Terror for another fifty years.
On the whole, I found this to be a great book for a layman. Lewis does not go into the more abstract parts of legal theory justifying free speech and unfortunately does not deeply detail the history of free speech leading up to the American Revolution. He does, however, provide the most important American cases on the subject and occasionally offers his own opinions (which I respect, if sometimes disagree with) without be pedantic. A great way to pass a weekend.
Lewis does a nice job of laying out the history of free speech. He starts before the founding of the United States, but spends most of his time exploring the development of the right since the United States founding. What you see is how, even in two short centuries, the understanding of freedom of speech has evolved into what we take for granted today.
Starting with the Alien and Sedition Acts during John Adams presidency and working his way forward, you really come to understand that the freedom of speech we enjoy today is far in excess of what citizens of the very same country enjoyed 200, 100, or even 50 years back. It's truly fascinating to get that perspective and it helps you to understand that rights can go as easily as they can come if they aren't defended vigilantly and vigorously.
Highly recommended for fans of history or for anyone who wants to understand a little more about where one of America's fundamental rights came from. Lewis has written a clear, concise history of an idea and a right.
Think about the role of activist judges - many of whom are criticised today in certain political circles. Anthony Lewis reminds us that American activist judges used the language that all persons are born free and equal to issue rulings that slavery was against the law as early as 1783. 150 years later it was again activist judges and lawyers who struck down the Espionage Act of World War I which punished speech against the war. So it was only in the twentieth century that the First Amendment was used to protect free speech and condemn a statute that infringed this liberty.
Author Anthony Lewis takes us on a historical journey through First Amendment cases from its beginnings in the constitutional convention to its interpretation by the Jeffersonians and the Federalists to Woodrow Wilson's oppressive statutes, and finally to the more recent cases of flag desecration and the Patriot Act. Mr. Lewis is clear headed and forceful in his history and arguments. As I see it, this volume is one of the top 10 books on the law that I have ever read. I suggest it as a gift to your sons and daughters, to your high school or college students who care about what America means. Highly recommended.