Thursday, September 26, 2013

Freedom to Read

The last week in September is Banned Books Week, sponsored by the American Library Association--a reminder that most attempts to suppress books are made in libraries, especially public libraries. Such efforts at oppression are still often made but are rarely successful owing to the profound strength of our constitutional system. What is at stake is much more than the rights of authors and publishers, the principle we defend is the right of the public to hear every voice. Justice Holmes is a kind of patron saint of our Freedom to Read, largely because of his eloquent opinions in a series of Supreme Court cases during and after the First World War. Those cases and opinions are explained in my book Honorable Justice,which has a new preface for the eBook edition released this month, in which I point out Holmes's continuing importance for our freedom to read. The privilege afforded by the Constitution to authors and publishers rested on something fundamental, Holmes thought, a principle that lay beneath the whole structure of constitutional law. He believed that the freedom to argue protects us from violence, and freedom of the press protects us from an oppressive government. Freedom to read, he seemed to say, even more than the freedom to write, is fundamental to the rule of law. My personal popgun doesn't protect me from the greatest military power in history; successful rebellions today begin with peaceful demonstrations broadcast to all the world; they begin with poetry and rap music and books. It is the right of the public to hear, much more than the right of the author to speak, that protects our constitutional system. In my book I quoted Holmes's most famous opinion, his dissent in Abrams v. United States, decided in 1919. What offended Holmes most deeply was the prosecution of political dissidents, whose beliefs were examined and then punished:
[T]he defendants are to be made to suffer not for what the indictment alleges but for the [socialist] creed that they avow--a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider when dealing with the charges before the Court.

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good to be desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.
When Mikhail Gorbachev began to dismantle the totalitarian rule of the Communist Party of the Soviet Union, the first rights that were asserted were the rights to criticize the Party and the government. In an address to an invited audience of American lawyers, of whom I was one, he said that his aim was to establish a government founded on truth. He was telling us what we wanted to hear, perhaps, but he did seem to understand the rule of law that we had been invited to explain.