Freedom for the Thought That We Hate, Part I

GUEST: Anthony Lewis
VTR: 01/17/2008

I’m Richard Heffner, your host on The Open Mind … a title that hopefully pays due tribute to free thought and free speech.

Of course, it’s difficult these days to take a reasoned, measured view of free speech issues when they and American values historically associated with them are threatened as severely as they have been in these first years of our new century.

Too often, one’s instinct is to rush to the barricades instead, loudly proclaiming one’s most politically correct credentials as free speech absolutist, even impugning the motives of those who instead seek balanced judgment when there is tension between the conflicting values of a decent society … as between free press and fair trial, between the politicization of our courts and judicial candidates’ unlimited speech, between real (not imagined) national security needs and speech that threatens to endanger them, between personal privacy and its many press invasions.

However, my guest today, never has been on such an “absolutist” automatic pilot himself, even though as a two-time Pulitzer Prize winning New York Times reporter and Op Ed columnist for over a half century Anthony Lewis has been for so many of us our own totally trusted and valued Free Speech Ombudsperson.

Now “Gideon’s Trumpet,” one of Tony Lewis’ earlier books — a brilliant account of a 1963 Supreme Court case establishing defendants’ rights to court-appointed counsel — is a classic of our legal literature. Well, now published by Basic Books, his “Freedom For The Thought That We Hate — A Biography of the First Amendment” promises to become one, too.

And I’d like first today to read you his new book’s opening paragraph … and then ask Tony Lewis how pleased he really is with the conditions it describes.

“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.” And Tony, it’s your first paragraph and I wonder how much you wrap yourself around those seemingly very positive thoughts.

LEWIS: Well, they express my beliefs. I think that’s the kind of country we are and should continue to be.

HEFFNER: Yet so much of the rest of the book takes some expression … that seems to me to be negative about these points. Is that unfair reading on my part?

LEWIS: No. Because as you said in your introduction … I’ve never been an absolutist and I think there are other values in life … important as freedom of expression is … and I think it is fundamental, that’s the nature of this country … and it’s right at the heart of our existence.

But there are other values … privacy, you mentioned, is one. And we can talk about that. But it doesn’t make me less enthusiastic and I’m … I’m afraid I’m quite romantic or enthusiastic in the book about free speech. And, and the struggle to make it a reality, because although it was written into the Constitution in 1791 in the First Amendment, it was never enforced by the Supreme Court for 140 years.

The first case in which anybody actually won on the claim of the right to speak or print … was 1931. And that’s a hundred and forty years without judicial enforcement.

HEFFNER: Then why have we come, at this point, perhaps I should say … how have we come at this point, to being so extraordinary, as you describe it … in our devotion to free speech?

LEWIS: It’s been a hard won devotion, I’d say. I’ll give you an example. At the end of World War I or toward the end President Wilson, a truly bad civil libertarian … anti-civil libertarian … persuaded Congress to pass the Sedition Act which made it a crime to say anything that might discourage recruitment for the Armed Forces, or look badly on the war. And it was a very sweeping statute.

Ahemm, a group of radicals threw pamphlets from the top of a building in New York, criticizing President Wilson for sending American troops to Russia after the Bolshevik Revolution. Just political criticism of a kind that we would assume to be protected now. And surely would be.

They were charged under the Sedition Act and convicted and sentenced to 20 years in prison. That’s what it was like.

Under the Sedition Act and State copies of it, thousands of Americans were imprisoned for anodyne criticism of the war, or the way it was being handled. The kind of thing we say about the Iraq war now about every two minutes.

And we had to overcome that tradition of repression. And it was done partly by powerful rhetorical dissents in the Supreme Courts by Justices Holmes and Brandeis, who gradually persuaded the rest of the Court, and the country, that free speech was a fundamental value. That’s what happened.

HEFFNER: Do you think it’s an absolute switch? Do you have any concerns at any point that having switched the way we did at the beginning of the last century, we might find ourselves switching back again.

LEWIS: I don’t see that happening now. I think there’s too much support for freedom of expression in this country. And interestingly, unlike so many other issues, it goes across the political spectrum … Conservatives as well as Liberals … at least profess devotion to freedom of expression.

Now if there’s some kind of expression that you really dislike … you, you … you can very often hear people saying “Well, I’m for free speech, but that goes too far.” Or I don’t think he should be allowed to do that.

Of course, a point of the title of this book “Freedom for the Thought That We Hate,” that’s an expression of Justice Holmes, is that we have to be able to stand things we don’t like. That’s the way the system is if you want freedom.

HEFFNER: And as I read the book, I see Tony Lewis writing at points about the coarseness of expression in our society. And I feel that you, as you write that, are rather regretful about that coarseness.

LEWIS: I’d rather be living in a Jane Austin novel, you mean

HEFFNER: Yes. And you say as much.

LEWIS: Well, yes, I would. I personally would think it was … would be nicer to live in a more elegant society. But that has never been America. Back when Madison, James Madison was writing the First Amendment, putting it into the Constitution … there was the utmost vulgarity and excess in speech. Newspapers were very often owned or edited by political party hacks. People wrote devastating things about politicians.

For example, the story about alleging an affair … a long running affair between Thomas Jefferson and Sally Hemmings, his slave … appeared originally in a newspaper article in the 18th century. I mean … we’ve been uninhibited from the start.

HEFFNER: Now why did we begin … I used the term in the first place, but you accepted it … I said, “Tony Lewis is no absolutist”. What do you mean by that?

LEWIS: I mean … well, let’s take privacy, for example.


LEWIS: There was a case … I have to talk about a case … that’s the way I think …

HEFFNER: Please.

LEWIS: … called Time Inc. against Hill. Mr. Hill’s family lived outside of Philadelphia … the home was invaded by three escaped convicts and they were held in the house for several days. Convicts treated them perfectly nicely. They didn’t threaten them, they didn’t do anything to them, but they just kept them in the house. Then the convicts left and they were killed or captured by the police. And it was a huge story and had a very somber impact on the Hill family, especially Mrs. Hill, who was a very nervous person who didn’t like publicity.

The Hills left Philadelphia, moved to a remote part of Connecticut to escape the publicity. And a few years later a play called “The Desperate Hours” opened on Broadway. And it was about escaped convicts holding people prisoner in their house.

It was quite different form the Hill story. The convicts were abusive, they threatened to rape the daughter, they beat up the father, etc. etc. But Life magazine did a feature on the play, which it decided to have the actors photographed in the former home of the Hills in Philadelphia and treated it as if it were the Hill story.

Mr. Hill sued for invasion of privacy in the article. He won a modest judgment in New York … $25,000. But the case was taken by Time Incorporated to the Supreme Court where Mr. Hill was represented by Richard Nixon, as a private lawyer between political engagements. And ultimately, after some back and forth within the court and two arguments, Mr. Hill lost by five to four … the Supreme Court said that the interest of Life magazine in freedom of expression trumped Mr. Hill’s concern about the impact on his family.

Well, years later, Nixon’s law partner … at the time … Leonard Garment … wrote an article for the New Yorker magazine about the case and its consequences. And in it he said, that Mrs. Hill was diagnosed by psychiatrists as suffering from extreme fragility. And two years after this event she committed suicide.

And I think that case was wrongly decided. I think the value of privacy in that case exceeded the value …the right of Life magazine to publish a misleading article.

HEFFNER: Do you think that if the five to four vote had been the other way, there would have been consequences with which you would have been as unhappy?

LEWIS: There would certainly have been consequences. I can’t tell, would have to know the particulars to know whether I’d have been unhappy. But certainly the fear of those consequences drove the majority on the Court.

Justice Black … the greatest advocate of the First Amendment in the Supreme Court of that time … Hugo Black … warned that if editors were held to that kind of standard, you know, especially a feature magazine like Life, which told lots of stories … and it might get things wrong … they might invade people’s privacy … he said, “that’s the price of free journalism.” And that’s the view on that side.

I think modest damages once in a while might not be so bad for …

HEFFNER: Now, Tony, wait a minute … what kind of principle would that be, “modest damages” … once in a while. When do you know that there is a real concern … at the level of our highest court for privacy?

LEWIS: Well, the court has never really expressed that concern. The Supreme Court of the United States has never shown a great liking for the idea of privacy.

It was articulated …the value of privacy was articulated brilliantly by Justice Brandeis … who said “the right to be let alone” … his wonderful phrase for privacy … “the right to be let alone, is the right most valued by civilized men.”

Well, I happen to think that privacy is a very important value. Now we don’t have much of it today … the young people let it all hang out on some blog or other. And they don’t value privacy. But I do. I think it’s an important part of one’s soul.

HEFFNER: But you see this is where … this very wonderful book, “Freedom for the Thought That We Hate” … puzzles me. Because I hear what you say now and I read in the book that concern and you express it for a decent society.

When do you advocate a legal court structure that supports your picture of a decent society and when do you say “let it all hang out, that’s the American tradition?”

LEWIS: Letting it hang out is the American tradition up to a point. But the First Amendment has never been defined by the Supreme Court as absolute. The Court has resolutely rejected that claim and it’s always taken other interests into account. I mean some of them are built right into the Constitution.

Copyright, for example. Or blackmail … blackmail uses expression … you can blackmail somebody on the phone or in a letter. That’s writing or speech. But its punishable. You know, it’s not an absolute. And we have other values and it’s the job of the courts to say which one prevails in a particular case.

HEFFNER: And what you say in your Introduction … that what prevails in the United States of America at this point in our history, is something that is almost absolute.

LEWIS: Almost. And I like it that way. As long as we have the “almost” … but …

HEFFNER: You like that tension.

LEWIS: I like the tension, yes. (Laughter) Maybe it makes a better story.

HEFFNER: And always the newsman. But, always the newsman … let me question you about that. The Sullivan case. Decided well? Decided ill?

LEWIS: Oh, very well. Shall I say what it is?

HEFFNER: Please. Your paper.

LEWIS: Yes. At the time of the Civil Rights Movement, led by Dr. King, The New York Times published an advertisement which, which was for the Movement and Dr. King and sought support for them, financial and otherwise. And in the course of the ad it criticized Southern Officials for being abusive and cruel toward civil rights demonstrators. It didn’t mention the names of any Southern Officials, it called them “Southern violators of the Constitution.”

But one official … L. B. Sullivan of … a councilor, or Commission member of the City of Montgomery, Alabama, said the ad might refer to him … might be taken by citizens of Alabama as referring to him and was libelous and he sued for libel and he won the largest libel judgment in Alabama history before an all White jury and the case handled by a Judge who loved the Confederacy so much that he sat the … seated the jurors in his courtroom in Confederate military uniforms. Wonderful.

HEFFNER: One of the wonderful stories you tell in this book.

LEWIS: (Laughter) Well the case went on up to the Supreme Court. Now, what’s interesting … you’d think that a law suit that was so obviously political, and in which huge damages had been awarded … $500,000 … to a man whose name wasn’t even mentioned. You’d think that was an easy case.

But it wasn’t. Because until then libel had always been considered outside the First Amendment’s protection. No libel judgment, however huge or, you know, peculiar had ever been upset on the grounds of the First Amendment.

But in this case, the Supreme Court laid down a new rule that a public official could not recover libel damages … not win a libel suit unless he or she showed that a mistaken statement about him or her had been made with knowledge of its falsity … that is, a deliberate lie … or with reckless disregard for the truth or falsity.

That’s been a tremendous protection for the press. I think it paved the way to the coverage of Vietnam and Watergate. And … I think it’s a wonderful decision.

HEFFNER: But you point out, too, that it paved the way for a further extension from public officials to public figures. And how do you feel about that extension?

LEWIS: I have mixed feelings about it. I think if it’s extended to people who take part in public life … who, as the court said in one case “thrust themselves into the vortex of public controversy”, then it’s appropriate that they be treated the same way. When you get into public issues … you know, you expose yourself to criticism. That’s the game. That’s how politics works in this country.

But it also applies to, to say, film stars and other people who are just famous, but have nothing to do with the government. And I don’t think it should have been extended to that. I think it weakens the logic of the decision.

Opinion in Sullivan was written by Justice Brennan and he said, it engaged the central meaning of the First Amendment, which is the right to criticize those who govern us. And I think that’s what it should be about.

HEFFNER: And you would limit it if you could to public officials.

LEWIS: Oh, I would, but it’s … the issue has long since gone away and everybody’s living under the rule of public figure as well, as I’m … you know. I was against it at the time, but it’s become part of the law and it’s all over.

HEFFNER: But that’s strange for you to say, it seems to me. You’ve, you’ve indicated in so many … in the book and elsewhere … that the law is, as Mr. Dooley said, “what the judges say it is.” Or the Constitution is.

Do you accept change only in one direction? Can’t we anticipate it might flow in the other direction?

LEWIS: Oh, it does. It does flow in all directions. That’s the nature of the court.

HEFFNER: Then why the acceptance and the satisfaction and say, well, that’s the way it is.

LEWIS: Because I think there isn’t any great movement to change it. It’s not likely to happen. I’m just dealing realistically with the situation. Certain things, for good or ill become settled. Justice Brandeis said “Ordinarily it is better that a rule be settled.” And it’s more important that a rule be settled than whether it’s right or wrong.

HEFFNER: What do you see as likely to change. Things that seem to be settled now in this area of the First Amendment.

LEWIS: I don’t actually think the First Amendment is likely … an interpretation of the First Amendment is likely to change radically in the near future. There aren’t any great cases pending the challenge the fundamentals of the First Amendment. And that’s for an interesting reason.

Although we have a tormented history in which, repeatedly, there have been waves of repression in the United States against speech … during times of War like World War I, as I mentioned earlier. Or times of fear … the McCarthy period.

Despite that, there is today a very broad consensus and unlike so many other issues, it goes across the political spectrum. Conservatives as well as Liberals generally support the idea of freedom of expression.

One Conservative member of Congress said to me once, “you know, I … I like to have free speech, too.” (Laughter) As if that were a surprise.

HEFFNER: So it is … maybe you’re touching upon here … my, my good friend Garrett Broad pointed out that it may well be that we’re talking about our own interests in all of this. I would like free speech, too, I don’t want my speech to be limited in any way. Is that the point?

LEWIS: That is the point, but you have to give credit here. People may say that, but very often they don’t really want to give it to the other fellow. And especially if it’s somebody with a radically different view or somebody, should we say, who makes a speech about the wonders of Islam or something that’s alien and strange to you as a person. You don’t … you may say you believe in free speech, generally, but that worries you. And that’s perfectly understandable. But I think there is a broader acceptance now of the general need for, as the title says, Freedom for the Thought That We Hate.

HEFFNER: Well, Garret had said to me, what about freedom from the thoughts that we hate … because you indicate in this quite extraordinary book, the numbers of areas, when you use the expression “a decent society” … I would say a “good” society … and where things based on free speech principles lead us away from what you would consider a decent society. What about freedom for you, for me, for everyone from the thoughts that we hate.

LEWIS: Well, generally speaking, I’m dubious that we should be free from thoughts that we hate because down that path … we get to repression. And we get to the idea that somebody who’s views are different from ours … should be censored. And I’m against that.

HEFFNER: Well, I probably shouldn’t have used the expression “thoughts” because that’s the, that’s the word that you use here.

LEWIS: That’s Holmes’ word.

HEFFNER: But … well, yes and you accept the notion in this very first paragraph that I read from … the very last words … and I want to ask you about that … we don’t have much time in this program, but you promised to do … sit for a second program, too.

The marketplace of ideas … I was surprised to find you using that expression because it’s used so often today and when I say, “thoughts” that we hate or that we like … aren’t you … those thoughts, aren’t they supposed to be political thoughts? When we talk about the marketplace of ideas and there are those who take the sleaziest descriptions, pictures, etc. and say, “In the marketplace of ideas, this has to be free”. But haven’t we mixed up political ideas with expression that is not political, that is coarse, to use the word you use in the book.

LEWIS: Generally speaking I think the First Amendment has to be read to cover both political ideas, although the relationship to government and the protecting the right to criticize government is, as Justice Brennan said in the Sullivan case, the central meaning of the First Amendment.

But it’s been interpreted for years to cover artistic speech and other non-political matters and I think quite rightly so. I mean, for example, early in the 20th century, the Federal government banned James Joyce’s book Ulysses.

Well, Ulysses is quite widely regarded as the greatest novel of the 20th century, like it or not. And, fortunately, a wonderful Federal Judge John Woolsey threw the Federal government’s position out of court.

But we’ve been through these waves of censorship of artistic matters … the Anthony Comstock laws … you know, of course, sexual expression has become very vulgar. And I regret that … it’s not Jane Austin. But, you know, once you go down the road of censorship … who’s going to say where it willo stop.

HEFFNER: Well, one might say, once you go down the road of coarseness, it isn’t Jane Austin. Where do you stop? And you made the point yourself, we’re not stopping. We’re continuing …

LEWIS: Partly that’s for reasons of technology. It’s become so easy, with a push of the button on your computer to get …for the most vulgar image that you can imagine … that it’s really impossible to stop. So the argument … the nice intellectual argument about sex and censorship has been overtaken by a technological revolution.

HEFFNER: You see that going on and on and on?

LEWIS: I don’t know any way to stop it.

HEFFNER: Would you, if you did?

LEWIS: I don’t think so.

HEFFNER: So, this session, which is going to end right now, leads me to wonder whether you are an absolutist or not when it comes to matters of speech?

LEWIS: Well, I’m not and perhaps another time I can tell you why not.

HEFFNER: Well, okay, we’re gong to end this program now. And you’ll sit where you are and I’m going to ask you … to make that next program the “other” time. Thank you so much, Tony Lewis, for joining me today on The Open Mind.

LEWIS: It’s a pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us as well next time. And for transcripts of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as another old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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