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Jewish World Review
January 28, 2008
/ 21 Shevat 5768
The right from which all others flow
What distinguishes us from all other nations is the range and depth of the First Amendment's expressive individual liberties against government control of what we say and think. Having researched and written about it for more than 50 years, I can attest that the most compelling readable account of its tumultuous and often imperiled history is the newly published "Freedom for the Thought That We Hate: A Biography of the First Amendment" by Anthony Lewis (Basic Books).
Part of the title comes from Supreme Court Justice Oliver Wendell Holmes' warning of the most powerful need of the First Amendment, especially in times of national danger and epidemics of speech-suppressing political correctness:
"If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate."
I commend the title and the Lewis book to Sen. Ted Kennedy, D-Mass., who is still trying to get his expanded "hate speech" legislation to become law. It adds extra prison time not for the actual conviction of violent acts but for the "hateful" speech accompanying them as interpreted by police and prosecutors.
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Once our Republic began, James Madison expected that no American would be punished for his "thoughts." But "hate crimes" laws vigorously and incredibly supported by the American Civil Liberties Union are what Madison feared. If these added penalties for thought crimes, also passed overwhelmingly by the House, get to the Oval Office, the president should veto the legislation.
For many years, Anthony Lewis, twice a winner of the Pulitzer Prize, was a nonpareil reporter and analyst of the continuous First Amendment wars in his New York Times column. I do not understand his removal from that sentry post since that paper now has no regular columnist with Lewis' legal and First Amendment history credentials.
Justice William Brennan once told me when I was talking about the Bill of Rights in schools around the country, "Tell them stories!" That's what Lewis does in "Freedom for the Thought We Hate." How many Americans know that before the Constitution and our Revolution, "Massachusetts hanged Mary Dyer for her Quaker views"? I would add that before Jefferson and Madison surfaced in Virginia, Catholics were not allowed to hold office and priests were barred from even entering the colony.
Lewis also dramatizes why and how "it took more than a century for (our) courts to begin protecting speakers and publishers from official repression in the United States."
And showing the continuing struggle to interconnect rights of privacy and speech, he quotes Justice Stephen Breyer that "the right to be let alone" encourages us to speak freely during those times "when we fear that our private conversations may become public." But the Founders couldn't have predicted the advent of computer technology and government databases, and how we may be approaching the Last Rites of privacy.
Lewis brings into the conversation a 1927 opinion (Whitney v. California) by Louis Brandeis, joined by Oliver Wendell Holmes, that affected me with the thrill of Americanism when I was a youngster. It had the freedom force of Louis Armstrong's trumpet:
"Those who won our independence ... believed liberty to be the secret of happiness and courage to be the secret of liberty... and that the greatest menace to freedom is an inert people, that public discussion is a political duty. They knew that order cannot be secured merely through fear of punishment for its infraction. ...They eschewed silence coerced by law."
And in this age of terrorism as before in our history when we were menaced from within and from afar, "Fear of serious injury cannot justify (government) suppression of free speech and assembly." As in Salem, Brandeis wrote, "Men feared witches and burnt women."
To which George Orwell added: "If large numbers of people believe in freedom of speech, there will be freedom of speech even if the law forbids it. But if public opinion is sluggish, inconvenient minorities will be prosecuted, even if laws exist to protect them."
That's why I hope large numbers of Americans, of all ages, will read Lewis' odyssey of why we are Americans.
He acts on what he writes about. On his current book tour, he spoke before the American Library Association at Philadelphia's National Constitution Center. The ALA's leadership has resolutely refused by contrast with library associations throughout Europe to demand that Communist Cuba immediately release the independent librarians it has imprisoned for opening private libraries for books banned by this dictatorship, which has burned those confiscated books, including biography of Martin Luther King Jr.
Lewis told the delegates what ALA officials there touting their mission of freedom to read didn't want to hear, even in the National Constitution Center: "I can't think of anything worse than putting people in jail for opening libraries."
"Freedom for the Thought We Hate" will, of course, not be barred from our libraries. But, then again, the Founders did not intend the First Amendment to be exclusively American.
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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.
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