Anthony Lewis. Freedom for the Thought That We Hate: A Biography of the First Amendment.
New York: Basic Books, A Member of Perseus Books Group, 2008. xv, 221 S. $25.00 (cloth),
ISBN 978-0-465-03917-3.
Reviewed by Roger Mellen (New Mexico State University)
Published on Jhistory (January, 2009)
Commissioned by Donna Harrington-Lueker
Freedom of Speech and Press: An Ever-Shifting Concept
It is a simple matter to support “free speech” with
which you agree. Americans have always had difficulty
tolerating more controversial communications, spoken
or published, such as Communist urgings toward revolution, or racist and anti-Semitic blabber. However, as
Supreme Court justice Oliver Wendell Holmes Jr. wrote,
the importance of First Amendment free speech is not
support of speech and thought with which we agree, but
rather “freedom for the thought that we hate” (quoted,
p. 37). And that is precisely the title that Pulitzer Prize
winner Anthony Lewis chooses for his important book,
Freedom for the Thought that We Hate: A Biography of the
First Amendment.
came the law of the land. Holmes was of course not alone
in initially opposing the legality of speech critical of the
government. The Sedition Act of 1798, passed so soon after the First Amendment was ratified, made it illegal to
publish “false, scandalous, and malicious writing” against
the government or its officials. During World War I, another Sedition Act again made disloyal language illegal.
By today’s standards, those actions would be considered
a violation of the Constitution.
Yet today’s view of the Bill of Rights may not have
matured as much as legal rulings indicate. Currently, according to a new poll by the First Amendment Center,
four out of every ten Americans cannot name a single
By “biography,” Lewis means that he is following the right guaranteed by the First Amendment. Only 56 perlifetime of the First Amendment, through its tortuous de- cent of those surveyed recognize freedom of speech as
velopment, through the twists and turns of judicial de- a First Amendment guarantee. Most Americans believe
cisions and outside pressures. Lewis looks not simply that individuals should not have the right to say anyat court rulings, but also the politics and people behind thing deemed offensive to a racial group, and nearly half
them, and that is the great strength of this book: contex- of those polled suggest that comments offensive to a retualizing the law and making it more readable and un- ligious group should not be allowed in public.[1] While
derstandable.
this annual poll by the Freedom Forum may be encouraging to those looking for greater ethnic and religious tolThe development of First Amendment freedoms has erance, it does not bode well for those looking for public
not always been a straight and clear path, as Lewis notes. support for free speech. Many Americans don’t need or
Even Justice Holmes, widely remembered for his support trust the press, according to one analysis of last year’s
of free speech, changed his mind after initially rejecting survey, and clearly not everyone values the right to free
constitutional arguments in support of leafleting against
expression when it clashes with other concerns.[2]
the government’s war effort. Holmes later wrote several famous dissenting opinions–dissents that later beThis poll also demonstrates the shifting of public
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H-Net Reviews
opinion regarding freedom expression over time, and
in his book, Lewis creatively explores such historical
changes and how they relate to–and clash with–court
rulings on the First Amendment. He looks not simply
at court rulings, but at the politics and people behind
them, making the shifting meaning more coherent. The
Sedition Act, for example, is placed in context by noting that while judges did enforce the measure making
criticism of the president illegal, the electorate rejected
that practice in the 1800 election by voting out the political party responsible. Another example of his wider historical view is when Lewis writes about Red-hunting in
the 1950s. Judicial opinions shadowed the shifting public
views after senator Joseph McCarthy lost his credibility,
and subsequent court rulings gave more support to radical free speech. Lewis’s major point, however, is that
heroic judges led public opinion rather than following it.
other aspect of the book that detracts from its strengths is
the author’s awkward tendency to include personal opinions, such as his denunciation of president George W.
Bush’s decision to invade Iraq (p. 186), his criticism of
the press’s failure to examine that decision critically (pp.
147-149), and his belief that journalists should be forced
to name confidential sources in libel cases (p. 94).
These rough spots hardly outweigh the praise this
book has justifiably received. Lewis provides a fresh view
into complex material by placing U.S. law in direct comparison with that of other nations and by using sources
beyond traditional legal cases, such as letters to the New
York Times[3] and the papers and other statements made
outside the courtroom by Supreme Court justices. Judge
Learned Hand, speaking at a wartime rally for freedom in
1944, noted that constitutions are not enough, but rather
that, “Liberty lies in the hearts of men and women; when
It is precisely this humanization of the law’s evolu- it dies there, no constitution, no law, no court can save it”
tion that is this book’s strength. Lewis places legal evo- (quoted, p. 107). Constitutional guarantees of freedom,
lution within relevant cultural and social history. How- Lewis concludes, are not enough on their own. Even toever, this reviewer finds that the author ignores colonial day, it requires individual courage to ensure our continprecedents to the First Amendment when he suggests ued freedom.
that it “has no discernable history … no meaningful disNotes
cussion by its authors of what they meant” (p. xiv). While
the latter may be true, it too easily ignores what came
[2].
Paul McMasters, at http://www.
before Madison and the constitutional debates and the firstamendmentcenter.org/news.aspx?~id=
states’ precedents to the Bill of Rights. The First Amend- 19031.
ment does indeed have a history, rooted in the colonial
[3]. On page 185, Lewis suggests that the original
struggles over print freedom, the public’s evolving view
of freedom of the press, and specifically, the Virginia source of the important phrase “marketplace of ideas”
Declaration of Rights. Part of this history is public opin- came not from Justice Holmes, but rather from a 1936
ion leading the way for judicial rulings, such as against letter to a Times editor from David M. Newbold. He credthe Sedition Act, or abolitionists opposing slavery. An- its Vincent Blasi, “Holmes and the Marketplace of Ideas,”
Supreme Court Review (2004), 1.
If there is additional discussion of this review, you may access it through the network, at:
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Citation: Roger Mellen. Review of Lewis, Anthony, Freedom for the Thought That We Hate: A Biography of the First
Amendment. Jhistory, H-Net Reviews. January, 2009.
URL: http://www.h-net.org/reviews/showrev.php?id=23375
This work is licensed under a Creative Commons Attribution-NoncommercialNo Derivative Works 3.0 United States License.
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