Wednesday, September 25, 2013

Freedom For the Thought That We Hate

Wikipedia's article-of-the-day today is about the late Anthony Lewis's celebrated book, Freedom for the Thought that We Hate, whose title is a quote from an opinion by Holmes.
Lewis was a long-time columnist and legal affairs reporter for The New York Times, and w also taught at the Harvard Law School. Between his teaching and his celebrated journalism Lewis did much to establish Justice Holmes's reputation as the father of modern freedom of speech and of the press. Lewis and I exchanged letters, both privately and in print, concerning Holmes' contribution to First Amendment jurisprudence, about which we disagreed. There is no question that Holmes's dissenting opinions--like the one that Lewis quoted in his title--are of great continuing importance. Our disagreement concerned an earlier set of opinions that Holmes wrote for a unanimous Court, during the First Word War. In those opinions, he used the famous phrase "clear and present danger" to describe speech that could be punished. Even political speech, the Court decided, could be punished if in the circumstances in which it was uttered it posed a clear and present danger of causing actual crimes to be committed. Holmes's famous example was the false cry of "fire" in a theater. Lewis didn't care for those earlier opinions, which are still often cited, and wanted to praise only the later dissents in which Holmes passionately championed the principle of freedom of thought and expression. I thought the two sets of opinions were parts of a single overall philosophy, while Lewis claimed that Holmes had changed his mind, and abandoned those earlier view.

This might not seem to matter much, except to biographers. What might have some larger significance today, however, is that in all of his opinions concerning freedom of expression, Holmes did not quote and barely mentioned the First Amendment. He was not an originalist, and did think the text of the Constitution was a kind of fixed code. He argued rather that the Constitution rested on core principles which were part of the fabric of the law. His opinions celebrating the First Freedom rest on those principles, of ewhich freedom of expression was assuredly one. As he said in his dissent in United States v. Schwimmer,
[I]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.
Not the First Amendment: the Constitution itself. The Constitution as a whole, the very rule of law, rested on this principle: peaceful competition of ideas and interests, in place of violence and warfare.