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I was thinking some time back about what persuaded me to become a lawyer. Two books played a role. One was Harper Lee’s ‘To Kill a Mockingbird,’ and the other was ‘Gideon’s Trumpet’ by two-time Pulitzer Prize winner Anthony Lewis. That book starts with a modest story of a down-and-out person living on the fringe of society, and it patiently builds to a crescendo of great principles that are the sustaining life force behind our Anglo-American system of justice. The book was everything that its title suggested. One afternoon in my college days, I put down that book and suddenly felt I understood, however fleetingly, the genius, and the greatness of our legal system. Lewis has had a long career as a journalist with a passion for justice, and his columns marked The New York Times for decades with a simple but vibrant elegance. Now, after seventeen years, Lewis has brought forth a new book. Perhaps no work that is such a pleasure to read should have nutritional value, but this one does. It is a biography of the First Amendment, and ‘biography’ in the greatest sense, for Lewis brings his subject to life. No Comment poses six questions to Anthony Lewis, about ‘Freedom for the Thought We Hate.’
1. Your book does a wonderful job of correcting the misimpression that many in this country have—namely, that the First Amendment rights Americans enjoy today have been continuously enjoyed since the enactment of the Bill of Rights, with perhaps a couple of aberrational experiences, like the Alien and Sedition Acts. In fact it took a long struggle to overcome the legacy of the seditious libel concept, and the turning point only came well into the 20th century. But let’s start with the Founding Fathers and their vision of the right of free expression. You quote from one of Madison’s letters to Thomas Jefferson, as the Sedition Act is being implemented, about how the loss of liberty at home is tightly associated with a perception of threat from abroad, which is very telling. But the sentence in that letter that just precedes the one you quote is also very important, – “The management of foreign relations appears to be the most susceptible of abuse, of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts & at such times as will best suit particular views; and because the body of the people are less capable of judging & are more under the influence of prejudices, on that branch of their affairs, than of any other.” Madison is reflecting on the use of secrecy concepts mischievously to cloak the dealings of the Government. The Government can disclose half-truths and mislead just as effectively as by telling lies. Do you consider the experience of the Iraq War another demonstration of this concept that Madison calls “universal”? And if so, wasn’t the press itself much to blame because of its failure to ask the right questions at the right time, and its willingness to allow Government claims to go unchallenged even when it knew there were serious issues with those claims? The letter here occurred against the backdrop of the famous Quasi-War with France, which Jefferson and Madison thought not a legitimate war as much as a domestic political game designed to isolate and vilify the Republicans (as the Democrats were then called). But should that make a difference?
The Iraq war was proof again of Madison’s remarkable understanding of human nature and politics. It is an unarguable example because the leading voices in the press admitted their failings. Both The New York Times and The Washington Post eventually published apologies for their indolence and failure to challenge Bush’s claimed reasons for invading Iraq. They did not even challenge, to my recollection, the Bush Administration’s (successful) effort to tie Saddam Hussein to the attacks on September 11, 2001: a lie repeated by many figures in the Administration. Remember that Madison explicitly relied on the press to hold the government accountable, speaking of the press in terms so noble that they are a bit embarrassing to journalists today:
“To the press alone,” he wrote in 1799, “chequered as it is with abuses, the world is indebted for all the triumph which have been gained by reason and humanity over error and oppression.”
Within a few days of 9/11, President Bush and his handlers began using it politically: calling for a War on Terror, and in turn using the “war” to assert more and more unilateral power for the President and to ignore constitutional limits and structures. They went much further than did John Adams and his Administration, who did prosecute pro-Jefferson editors and others under the Sedition Act, but did not assert sweeping war powers. And Adams did, crucially, resist party pressure to go to actual war with France.
2. Your book is a treasure trove of poignant details, like the fact that Holmes’s Union Army uniform was found hanging in his closet at his death, Nixon’s bitter experience in arguing the Hill case and others. But the one that impressed me most was the story of Near v. Minnesota. It’s a case easily disposed of – an anti-Semitic crank publishes a rag maliciously accusing public officials of having connections with organized crime. The state of Minnesota steps in and shuts the publication down. But then we look a little deeper into the grass and discover that this characterization is a bit facile. In fact there was widespread corruption reflected in deals between criminal figures and public officers, and the publisher had had the courage to stand up and call them for what they were. This points to a dynamic which is a simple fact of life but is so often unrecognized, namely those in positions of wealth and power very often enter into a conspiracy of silence with the barons of the local press, which are reluctant to expose the misdeeds of the powerful. And in this case, you give us Fred Friendly’s testimonial from Irving Shapiro. Could you recount that story for us, and also comment whether you see parallels to the current age? There has been a fairly dramatic consolidation of the national media, with most of the broadcast and print media in relatively few hands. There has also been a stark transformation of attitudes. In the current environment, the corporate bottom line seems to count for much more than the values say of a Fred Friendly or an Edward R. Murrow. Do you agree? And does this spell curtains for muckracking journalism?
The case of Near v. Minnesota, decided by the Supreme Court in 1931, was the first in which the Court protected the press from repression. Near was Jay M. Near, publisher of a sensational weekly, the Saturday Press. The paper was viciously anti-Semitic. Its usual theme was that Jewish gangsters were in league with corrupt public officials. Officials invoked an unusual Minnesota law that allowed courts to close malicious newspapers, and a court banned the Saturday Press. The established newspapers of Minneapolis and St. Paul took no interest in the case, regarding Near and his paper as beneath their concern. But the eccentric publisher of the Chicago Tribune, Colonel Robert R. McCormick, saw a threat to the press generally and sent his lawyer, Weymouth Kirkland, to help Near. Weymouth took the case to the Supreme Court, which by a vote of 5 to 4 set aside the injunction against Near. It held that this was a prior restraint, historically disfavored, and so violated the First Amendment.
The decision, followed ever since, is a bulwark of press freedom. But was it right to wrap the mantle of the First Amendment around a paper as nasty as the Saturday Press? That question was discussed in a book on the case by Fred Friendly, Minnesota Rag. Friendly had produced Edward R. Murrow’s CBS television programs. (He was played by George Clooney in the movie on Murrow, “Good Night and Good Luck.”) Now he was a vice president of the Ford Foundation. At lunch in the foundation one day he was discussing his plans for the book when Irving Shapiro, CEO of the duPont company and a foundation trustee, came over. “Did you say you were writing a book on the Near case, Fred?” “Yes.” “I knew Mr. Near,” Shapiro said. His father owned a small dry-cleaning store in Minneapolis. One day gangsters came to the store and demanded protection money. When Mr. Shapiro said no, the gangsters sprayed acid on the clothes hanging in the store. Irving, a young boy, was there, watching. The leading newspapers wrote nothing about the incident. But Jay Near came to the store, talked with Mr. Shapiro and published a story. The gangsters were prosecuted and convicted.
So there may be value in even the meanest of publications.
Today the muckraking values of a courageous press have widely given way to the corporate bottom line. Many, perhaps most, of the newspapers that once were a beacon of light in many communities, have been taken over by chains. Broadcast networks have been acquired by giant corporations with no tradition of, or even acquaintance with, real journalism. Putting money at the top of other values is hardly new in broadcasting. After all, Friendly left CBS for just that reason–when the network declined to broadcast a critical Congressional hearing on the Vietnam War and instead carried a rerun of “I Love Lucy.” But the craven instinct seems worse today.
The Discovery Channel recently cancelled plans to show the highly-regarded documentary, “Taxi to the Dark Side,” the rights to which it had acquired. The film is critical of the Bush Administration’s policies of detention and brutal interrogation. Executives of Discovery said it was “too controversial.” What they meant was that it might displease the Bush Administration and its supporters.
3. You quote from Hugo Black’s opinion in the Pentagon Papers case, “The press was protected… so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” Reading these words today makes me think again of the role the press played in the lead-up to the Iraq War, and in the emergence of covert and illegal surveillance processes—as in the systematic violation of FISA that Jim Risen and Eric Lichtblau uncovered, but that the editors of the ‘Times’ balked about publishing until almost a year after it had been discovered. Today, of course, a grand jury subpoena has been issued to Risen, not related to his FISA exposé, but rather a chapter in his book about a failed CIA effort to penetrate the Iranian nuclear program. And earlier, Judith Miller refused to divulge her sources in an investigation of the outing of a CIA agent where the sources appear to have been figures in the White House bent on retaliation against the CIA agent’s husband. Now it seems clear that disclosures like Risen’s depend on their ability to protect sources, but it’s hard to make the same argument for Miller’s case in which the source is a government figure who doesn’t want to be identified but actually seems to be serving a government agenda. You probably won’t want to criticize any of your ‘Times’ colleagues, but what guidelines do you see for journalists in circumstances like this? What does the subpoena to James Risen tell you about the Bush Administration’s attitude towards the press?
Subpoenas to journalists to make them disclose their confidential sources pose difficult questions for me. On the one hand it is beyond argument that reporters have to rely on unnamed sources for vital stories. A source who tells James Risen and Eric Lichtblau of The Times about President Bush’s order to wiretap without warrants in violation of a criminal statute is never going to say, “Sure, use my name.” That would be a ticket to dismissal from a government job or worse. And we need stories like that to hold the government to account–need them more than ever in an age of secretive governments claiming absolute power.
On the other hand, the press can abuse other values, too. Think about the case of Wen Ho Lee, who was a scientist at the Los Alamos National Laboratory when major press and broadcast outlets said unnamed officials had described him as a nuclear spy for China. He lost his job and then was indicted on 60 counts of espionage and other crimes. But in due course the government dismissed 59 of the counts, and he pleaded guilty to misuse of information that had been retroactively classified. The judge who approved the deal said the country owed him an apology.
Wen Ho Lee sued the government for invasion of his privacy in the false leaks. He naturally subpeonaed the reporters who had written stories on him and demanded the name or names of the leakers; without them he could not maintain his suit. The reporters refused to answer and were held in contempt. Should they have been protected in their silence? Do we want to have a society in which a man’s life can be effectively destroyed and allow him no recourse to recover a bit of his good name? I do not want that kind of society.
How, then, do we decide when the law should protect the journalist who refuses to respond to a subpoena? The First Amendment does not help the reporter. The Supreme Court rejected that constitutional claim long ago and is not about to change its mind. Most states have shield laws that allow journalists to be silent in various circumstances, and Congress has ideas for a federal shield law before it. What should a federal law protect, and what not? Judge David Tatel of the United States Court of Appeals for the District of Columbia Circuit has made a proposal that I find persuasive. It is that in leak cases courts should balance the government’s interest, weighed by the harm a leak has done, against the public interest in disclosure. By that test I think Judith Miller would lose, because the material she gathered (though she never wrote a story) apparently reflected a government effort to harm a critic rather than disclose information holding the government accountable. Her testimony was needed for an effort to discover who in government was doing the hatchet job, a higher purpose. But the test would not allow the government to make James Risen disclose his sources holding the CIA accountable for its mistakes.
4. The expansive reading of First Amendment rights which first cowered under assaults driven by criminal and civil libel laws, seems triumphant today. As you note, Antonin Scalia, not otherwise viewed as much of a civil libertarian, has taken a pretty aggressive posture of the scope of the free speech protections in the First Amendment. But seventy years ago, this was a very edgy view of the law. Does this reflect a triumph of ideas, and particularly of men like Holmes and Brandeis? Do you see any risk of a movement to resurrect the status quo ante from the period before 1931, before Stromberg v. California?
Yes, what has happened to the First Amendment is an extraordinary triumph of ideas. The very first time an opinion in the Supreme Court treated freedom of expression as a fundamental American value was in 1919. And that was a dissent, by Justice Oliver Wendell Holmes Jr., joined by Justice Louis D. Brandeis. A group of radicals had thrown leaflets from the top of a building in New York criticizing President Wilson for sending troops to Russia after the Bolshevik Revolution. For that criticism of a president’s policy they were convicted under the 1918 Sedition Act and sentenced to 20 years in prison. Holmes said we should be “eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death. . . .”
Through the 1920s Holmes and Brandeis dissented. Their ideas, and eloquence, finally persuaded the country and the Court. From 1931, when the Supreme Court first sustained a claim under the free expression clauses of the First Amendment, the Court over sixty years applied the Amendment to fashion an armor of protection for political ideas, artistic, press disclosures of government secrets and many other things. I think that protection is today widely supported across the political spectrum. There may always be more or less freedom applied on the facts of individual cases, but I anticipate no general retreat from what has been won since 1931.
5. Another vital aspect of press freedom goes to war coverage. The character of war coverage by the American press has fluctuated greatly since the Civil War, but there has always been an uneasy dance with the military and the government. Most recently, U.S. coverage includes a mix of embedded journalists and those operating with a looser coordination with the military. In the Iraq War there have been an unprecedented number of fatalities among journalists—over one hundred—and an astonishing number of journalists detained or arrested by the U.S., several hundred, including several who have been held for a year or longer as “security detainees.” Nicholas Kristof recently described the case of Sami al-Hajj, now in his sixth year in Gitmo, and I represented CBS cameraman Abdul Amir Younis Hussein and AP photographer Bilal Hussein, both seized by the U.S. in Iraq, held for a year, and put on trial. Secretary Gates insisted in his speech at Annapolis that “the press is not the enemy.” Does this suggest to you that the U.S. views press freedoms as rights available to American journalists, rather than values that Americans take into the field?
In past American wars journalists had broadly free rein to do their job as they wished. In World War II reporters like Ernie Pyle were in the thick of the fighting–and Pyle eventually paid with his life. That freedom continued in the Vietnam War, where reporters went out on combat missions. But during Vietnam, political leaders complained that the press was not on the team. President Kennedy tried to persuade the publisher of The New York Times to withdraw David Halberstam; the publisher refused. President Johnson, perhaps driven to irrationality by the unhappy course of the war, told intimates that various leading journalists were pro-Communists. Right-wing commentators, then and since, accused the press of helping America to lose the war. The fact was that reporters like Neil Sheehan, Malcolm Browne and Halberstam simply reported the truth–that U.S. forces might win this battle or that but were losing the war for the allegiance of Vietnamese.
The suspicion of journalists took form in the first Gulf War, when the government decided that they should be “embedded” in military units–and decided who could be embedded. In the Iraq War, as you indicate, American forces have detained non-American journalists who were working for the American press–and continue to detain some to this day, without charges or stated reasons for their detention. I doubt that there is any philosophical basis for these detentions. I think they reflect a general stance that we can detain anyone, at Guantánamo or elsewhere, who someone thinks is not on the team.
6. Near the end of the book you come to some discussion of one area where you think the First Amendment has been carried too far: campaign funding as free speech. You criticize Buckley v. Valeo, writing that “the result was to give a great advantage to candidates with personal wealth and to those who were good at attracting contributions.” The solutions Congress has crafted to get around this—public financing for those who commit to abide by limits, for instance—always seem to be circumvented with “independent” action committees that rarely seem to be very “independent.” Of course, this year we are witnessing something we have never seen before, namely the Democrats are dramatically outraising the Republicans in the presidential race and in other races—that might produce some tactical realignment in Congress. Do you see any real solution to the campaign finance dilemma short of overturning Buckley v. Valeo?
No, I see no way to end the corrupting domination of American politics by money without overruling Buckley v. Valeo–and that is not about to happen. A majority of the Supreme Court is fixed on the simple-minded syllogism that campaign spending is a form of speech. I agreed with my great constitutional law professor, Paul Freund, when he responded to Buckley: “They say that money talks. I thought that was the problem, not the solution.”
A particularly unhappy example of the Court’s mistaken path was its decision in Republican Party of Minnesota v. White. Minnesota, like other states, had prohibited candidates in judicial elections from “announcing” their views on controversial issues. E.g., “Vote for me and you will vote for a man who is against abortion.” A 5-4 majority held that the law violated the First Amendment. The result was to intensify the politicization of judicial elections, which now attract million of dollars in spending.
‘Freedom for the Thought We Hate’ has been published by Basic Books and can be purchased in a bookstore near you, or on-line here.
More from Scott Horton:
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The November 2014 police shooting of 12-year-old Tamir Rice at a park in Cleveland was found “objectively reasonable” by independent reports.
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“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”