Freedom for the Thought That We Hate, Part II
VTR Date: January 17, 2008
Anthony Lewis continues the discussion of freedom of speech's limits.
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GUEST: Anthony Lewis
I’m Richard Heffner, your host on The Open Mind.
And this is the second of two programs with Anthony Lewis, two time Pulitzer winning New York Times reporter, bureau chief and Op Ed columnist for over a half century, who for many of us has been our own totally trusted and valued free speech ombudsperson.
“Gideon’s Trumpet,” one of Tony Lewis’ earlier books, a brilliant account of a 1963 Supreme Court case establishing defendant’s right to court appointed counsel, is a classic of our legal literature. And now published by Basic Books, his new Freedom for the Thought That We Hate: A Biography of the First Amendment, promises to become one, too.
Tony, in our first program you said you were going to reveal some of your thoughts about the matters we were discussing. Reveal. What’s the origin?
LEWIS: Well, let me … I can do it always by cases. For me the story is what determines the outcome. And the story I’d like to talk about is that Wen Ho Lee, the nuclear physicist who was at the Los Alamos National Laboratory.
And the press, print and broadcast, began writing stories to the … based on an “unnamed government source” and some government documents to which the press had access … to the fact that Wen Ho Lee was a Chinese spy and that he had turned nuclear material … information over to China.
Well, of course this had a devastating effect on his life, his career. And very shortly the government indicted him on 60 counts of espionage and other things.
Well, the government evidently didn’t have a case. Because it dismissed 59 of the 60 counts and prosecuted him only on the last charge, which was of misusing information that had been retro-actively classified. He pleaded guilty to that and it went away.
He then sued the government for invasion of his privacy … in the leaks to the press …
LEWIS: … and, of course, he couldn’t prevail in that case unless he found out who the leaker, or leakers were. And he asked the reporters, “Where’d you get your stories.” And they wouldn’t answer. That’s the position of the press and it’s the position I would take. You can’t … very often getting a story depends on using unidentified informants because people don’t want to get in trouble by having their names used.
But he … they claimed … the reporters claimed a Constitutional privilege not to answer the question. That position had been rejected by the Supreme Court. That claim had been rejected. And so the trial judge dismissed their claim and they had … the reporters had to answer.
Well, the matter was settled when the newspapers and television stations agreed to pay Wen Ho Lee $800,000 and the government paid $600,000 odd amount to cover his legal fees.
And the case went away.
Well, my position is this. I think to use the phrase that you fastened on before … a decent society should not deprive a man who’s life has been destroyed by inaccurate press accounts … evidently inaccurate, judging by the result of a case. Without giving him some chance to make his life whole again, at least symbolically and to get some compensation for the damage. And so I don’t think that there can be an absolute right to silence on the part of the press in that circumstance. I think there is another value here. And that’s the value of human beings.
HEFFNER: Well you make the point in the book, there are multiple values here, there is another value, the value of the decent society, of other human beings.
Are you really unwilling to develop a formula as the First Amendment has been used as a formula in so many areas? How do you deal with this indecent act?
LEWIS: There is a formula that I favor, actually. It was advanced by a Judge of the United States Court of Appeals for the District of Columbia Circuit … David Tatel. In these cases when the press is, is pressed to disclose a source and refuses … he would weigh the interest of the public in the story … the value of the story … to the, to the public against the need of the leaker … the importance, I should say, the value of keeping the leaker’s name quiet.
And in this case, I think a false or misleading story, as it turned out … about an individual … didn’t have a great value and hence that should not trump the importance of the matter to Wen Ho Lee as a human being.
There are other cases … let’s take … I’ll give you another example, if I may. The New York Times wrote a story saying that the government, President Bush had ordered the National Security Agency to wire-tap Americans on national security matters, secretly, without warrants, in violation of a criminal statute.
There, if I were to weigh those under the Tatel Formula, I’d say the value of that story to the public was very great … it’s important that we know when our government does unlawful things in secret. That’s very important. And the value of obtaining the name of the source seemed like, by contrast, rather weak. The government’s interest seemed rather weak. And so that the press’s claim of confidentiality would prevail in that case.
Now you may say it’s not an easy, absolute formula. But that’s the nature of law. Judges have to weigh different interests all the time, that’s what they do for a living.
HEFFNER: You like to put your emphasis, don’t you, upon, judges’ judgments?
LEWIS: I do. I have a wife who’s a judge, so maybe that biases me.
HEFFNER: That’s permitted.
HEFFNER: That’s permitted. I’ll send her a copy of the program and you’re off the hook.
Ah, going back to the matter of fairness and freedom. We talked, in between our programs about our mutual friend, the late Fred Friendly.
Fred came on The Open Mind fairly late in his career … I asked him about the Fairness Doctrine. And I would ask you about the concept of a Fairness Doctrine. Fred earlier in his career had opposed the Fairness Doctrine to a fare-thee-well.
By the time he came on The Open Mind, he had seen enough of the workings of a absolutely free press to have changed his mind. What’s your fix on the Fairness Doctrine?
LEWIS: Let me say just a word about what the Fairness Doctrine was. It was supposedly the … Federal Communications Commission was supposed to police whether television stations or radio stations had, had dealt fairly, justly with a controversial public issue. Gave both sides a chance, whatever.
HEFFNER: First said they had to, to maintain their licenses …
HEFFNER: … deal with public … controversial public issues. Then they had to do so fairly.
LEWIS: Right. That’s true, that’s a good correction. Well, there are obvious defects in the idea of the doctrine which I suppose motivated Fred in the first place. In his earlier life.
Who is the Federal Communications Commission to decide whether we’ve done something fairly? As soon as you start judging what a press institution in this case, broadcast, does. There’ll always be someone who says it wasn’t fair. That’s just the cry of the multitude.
HEFFNER: But isn’t that for your highly respected judges eventually to decide?
LEWIS: Yes, but it’s much harder to decide on the fairness of a fleeting television program. I mean it’s … the standards are rather few.
And it’s … it goes against the Madisonian nature of the First Amendment. Here we’re right at the heart of the First Amendment.
James Madison, who wrote it, believed that the answer to a false or vindictive speech … of which there was plenty in the 18th century when he wrote it, was other speech. Or, as Brandeis put it … the correction for bad … for evil speech is good speech.
HEFFNER: You don’t seem to believe that totally in sections of this book, Tony.
LEWIS: No, but we’re talking about the Fairness Doctrine.
LEWIS: And the Fairness Doctrine was, was really aimed at a station that didn’t offer a chance to correct and didn’t correct its evil, but had a one-sided view of life on some issue and just kept sounding it and sounding it and never had … presented the other side.
So, Fred having experienced this phenomenon of one-sided coverage decided, well, with all the difficulties it’s better to try to do something about it.
But, in fact, I’m not a great enthusiast for the Fairness Doctrine because it wasn’t enforced very effectively. And it turned out to be too cumbersome to do … really to make it meaningful.
HEFFNER: Are there any mechanisms that you would embrace, that would in the area of the press help us … help the press not be unfair? In the areas that contribute to a decent society? Like the National News Council of memory.
HEFFNER: Since your paper and CBS managed to kill it.
LEWIS: Yes, I laugh because that was … I remembered what you just said. That we killed it.
Well, that… that was an institution copied on the British Press Council … copied from the British Press Council which pronounced on the legitimacy or fairness of stories that some victim of a sensational story had challenged.
I thought that it wasn’t a bad idea. But The Times, New York Times at that time, took the view that a Supreme Court Justice once expressed in the phrase “editing is what editors are for, we don’t want to have courts and commissions and News councils telling us what was right or wrong. The editor takes responsibility and, you know, if you don’t like it you can write him a letter.”
Well the New York Times has come around, you know. For years the same editor who deplored the News Council, deplored the idea of having an Ombudsman on a newspaper. And he said that gets in the way of the editor and I’m responsible and if you don’t like it, you can tell me.
But now The New York Times has an ombudsman and … a Public Editor … as it’s called … who occasionally criticizes the paper’s policy and I don’t think that’s a bad idea, I think it’s a good idea.
HEFFNER: Now let me carry it back again … how do you feel about a National News Council?
LEWIS: I think in a country of this size and complexity, it doesn’t work. And in fact it’s been abandoned in Britain, pretty much. It just turned out to be too political and too awkward to make it work, so I’m, I’m no longer as much of an enthusiast as I was.
HEFFNER: I’m sorry that you’re not. But, there it is. You know, I was reading some transcripts of programs that we did dating back to 1981 and I’d read Freedom for the Thought That We Hate first, and I went back to the transcripts and I had the feeling that you had moved quite considerably …
HEFFNER: And then I re-read the book and I found myself seeing here many, many points, many pages in which you seemed to be much more sympathetic to the notion that we’ve gotten ourselves into a hell of a lot of trouble. That our society, this decent society that … you sneak that in a few places …
HEFFNER: … Tony, it’s there. And I have a feeling … that’s why I started off our first program the way I did … reading the statement of pretty absolute freedoms in our country. And then asking you how you feel about them. You immediately said, you feel very good about it.
Just between us … not very much hesitation … in embracing this …
LEWIS: No. My …
HEFFNER: … free-for-all?
LEWIS: My particular concerns for, say, privacy or the other values that may arise in the case of a claim of the right to keep a source secret … those particular concerns don’t, in my way of thinking … stop my general enthusiasm for freedom of expression.
Now I have to say that you have … you have studied my life and works with more care than I have and I congratulate you on the thoroughness of your preparation for this program. It’s amazing.
But, I think I always fell short of absolutism. I, I can remember when I was covering the Supreme Court and there were really great conflicts and great debate between Justice Black, the absolutist … about free speech and other members of the Court, particularly Justice Frankfurter.
And I found Justice Black to be riveting, you know, so powerful in his rhetoric and his concerns. But I didn’t always go all the way with him.
HEFFNER: Even then?
LEWIS: Even then.
HEFFNER: Let me ask about the notion of money is speech and deserves the protection of free speech. How do you feel about that?
LEWIS: Well that’s what the Supreme Court held when, years ago, in a case called Buckley against Valeo, it said that Congress could not constitutionally regulate the right of people to spend money on political campaigns. They distinguished contributions to political campaigning which they said could be regulated, up to a point. And, of course, the regulations are there in one form or another, but they’re not terribly effective. We all know that there are a lot of contributions for political campaigning. But there is an absolute right to spend your own money as you wish, like Mayor Bloomberg, or Mitt Romney. If you got money and you want to be a Mayor of a President, you can spend it.
Well, I didn’t think much of that decision. And I agreed with my revered Constitutional law teacher, Paul Freund who said “they say that money talks, I thought that was the problem, not the solution”.
HEFFNER: I love that quotation in, in your book. Revered, indeed. Do you think there’s much likelihood of overcoming that hurdle that the court has put in the way of doing something better by way of our politics and the role of money?
LEWIS: No. The Court is fixed in that position … if anything, the current Supreme Court is even less favorably inclined toward regulation of campaign money than the earlier court was. No, there’s no, no early chance of changing that.
HEFFNER: What changes would you make? Or, let me put it this way, if Paul Freund, who had been spoken of as a potential member of the Supreme Court … if he had been appointed, if he had been confirmed.
And I remember once, early in the history of, of The Open Mind … going up to WGBH in Boston, asked if I would do a … when we were on summer break … do a program up there, do it up there every week. And I said, sure I would, but let’s call it something else. And we did and Paul Freund was my guest and he said, “You know, Mr. Heffner, you’re very naive … you think the law is about justice. It isn’t.” And I followed his career thereafter very, very closely.
Suppose Paul Freund had gone on the bench … how … do you think he would be voting with the majority in the cases that you have cited, upholding free speech as much as you are enthusiastic about these decisions?
LEWIS: You’re not. You’re outside the area of campaign spending now … you mean in general?
HEFFNER: Yes, in general.
LEWIS: Yes, I think he would. He didn’t take an absolutist view. He didn’t agree with Justice Black. But I think on the whole … in The New York Times against Sullivan … which we discussed in the earlier program about limiting libel suits by politicians … and in other great cases … one that was written by Justice Black in 1941, Bridges against California which put limits on the use of the contempt power of courts to shut up editors who criticized a judicial decision … which happens in Britain all the time. You can keep people from commenting on court cases … unthinkable to us now, but it was a revolutionary decision in 1941. Though it wasn’t recognized as such by the public for a simple reason, the case was announced on December 8th, 1941. And people had their minds on something else.
HEFFNER: Tony, let me … let me … let me ask … we don’t have all that much time left and I … there are some things that you don’t touch on in the book that I wonder … now that I have you here … you didn’t touch on the question of cameras in the courts. How do you feel about …
LEWIS: I think that the court should be open to photography, broadcasting. All the courts in Massachusetts … state courts in Massachusetts, where I live, are open to cameras. And, in fact, the highest court of the state, the Supreme Judicial Court … all of its arguments are live on the web. And, and it’s a good corrective. We had one case … it doesn’t usually happen …
HEFFNER: Good corrective? Of what?
LEWIS: The possibility of judicial abuse. Which wouldn’t happen in the highest appellate court, but you might have an intemperate judge and that judge being open to public scrutiny, it’s an important value. And that’s the general role of the press. To keep the government under, under watch.
I was going to say, we had one case … it’s an exception, so I don’t want to suggest that it’s the rule, most Massachusetts judges are very good. And maybe this judge was in general. But she lost her temper in one case and shouted at a District Attorney and, and the television stations got ahold of the film. Played it. And eventually she left the court.
HEFFNER: Now, are you referring to … are you approving of cameras in the courts when they show a whole trial?
LEWIS: Well, that’s what they …
HEFFNER: Or …
LEWIS: … that’s what they do show. The fear expressed by those who are against cameras in the courtroom is that television will show …
LEWIS: 11 seconds … and, of course, that’s true. You can’t … an evening news program can’t run an hour’s argument. But that’s … you know, something you have to take a chance with. I mean that’s a part of life.
And I don’t … I think … well, let me take the case that’s most in my mind. Supreme Court arguments. Generally they’re an hour long. They are among the most instructive, wonderful operations of government. Unlike most of government which operates behind closed doors, and you don’t really know what happens, it’s all out there in the public.
The Justices are questioning counsel and often not really asking questions, but expressing their views and debating back and forth. You know sometimes, when I covered the court, I used to see Justice Frankfurter and Justice Black arguing about something till it got to the point where the lawyer was feeling lost (laugh), nobody paid any attention to him. They would were just arguing among themselves.
Well, it’s very instructive, it’s very educational. And it’s actually usually at a quite high level.
HEFFNER: But, of course, that isn’t the court … the level of court that I meant. Not appellate courts, not the Supreme Court and I certainly find what you’re saying to be something … for whatever it’s worth … that I totally agree with. I’m talking about when you or when I …when we’re on trial for some action … accused of some action … there we are, the snippet occurs, just at the moment of greatest disadvantage for me … and there it’s on the air. But the jury, who … the jury is there for the whole trial and I’m acquitted. But in the public opinion realm, those who have seen me … at my lawyer’s worst. What about the decent society that you write about and that sort of thing?
LEWIS: It is an argument, I understand it. We, we wouldn’t want to be treated like the clients in, shall we say the television program, “Boston Legal” …
LEWIS: Don’t know if you’ve seen that …
LEWIS: … but, you know, it’s done with … Boston Legal is done with snippets, of course. They don’t have whole trials.
Well I guess my sympathy runs out. I mean I think public matters, like trials, should be carried out in public. And there’s no stopping anyone going into that courtroom to be a spectator. It’s only a question of whether the technology should be used.
LEWIS: And I, I’m prepared to do that even at the risk of making you look silly on television.
HEFFNER: Ah, I should have turned it around and made you the …
HEFFNER: … the culprit. Are you … you sanguine about … I won’t ask again about all of these things that I think you’re … you express reservations much more in the book than you do here. And maybe it’s because of this repetition of the concept of a decent society. Where are we going?
LEWIS: I don’t see any change in our general attitude toward freedom of expression. But I do see great dangers of another kind. The danger since 9/11 to our system have not been on the whole repression of speech. People are free to criticize the Iraq war or this or that.
Much freer than they were in World War I …
LEWIS: … as I mentioned in the earlier program, when thousands of people were actually imprisoned for critical comments. But we’ve, we’ve got … some very dangerous things have been done … detention without trial; torture; illegal wiretapping. Those things are … you know … seems to me are to the forefront right now.
They’re not First Amendment issues, they’re issues about bodily freedom … who we are and what we are as a country. I never thought we were a country that would torture people and I regret greatly that we are.
Where we’re going, on that and perhaps on free speech, too, I think depends very much on whether we have another terrorist attack of a major kind. If we do, public, public fear is going to increase again and the excuses for repression will increase. I’m being candid. I hope that doesn’t happen. I really sincerely, deeply hope … not only because I’m against terrorist attacks, but because I fear the consequences.
HEFFNER: And it is the consequence that you … that politically is before us even as we speak now, when you emphasize fear.
You know, Tony, it’s been many years since you were here the first time. I don’t think … I hope we don’ t have to and surely you and I can’t afford to wait that many years before you come back here, but I do want to express to you my appreciation … both for Freedom for the Thought That We Hate and for your appearances here this time. Thank you again for joining me.
LEWIS: Well, nothing could please me more. Thank you, Dick.
HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. 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.