In my previous column, I wrote about the Newseum in Washington, D.C., which is an interactive museum dedicated to preserving and interpreting more than 500 years of journalism. I said that one of my favorite parts of the Newseum was a permanent exhibit called the First Amendment Gallery.
Congress Shall Make No Law
Like many school children, I learned to recite the First Amendment by heart — and I have a vague memory (it was a very long time ago) there was a song involved to help us remember the 45 words that have shaped our nation’s history.
When I began photographing and writing for newspapers and magazines in the 1970s, I knew that the First Amendment protected — with a few exceptions — my activities as a journalist and also the right of the publications I worked for to publish whatever they wanted.
However, it wasn’t until I went to journalism school at the University of South Carolina a few years ago to get my master’s degree that I learned about the intricate and often turbulent history of the First Amendment. A required course called Media Law exposed us to a wide range of topics, but it was the module on the First Amendment that has stuck in my mind as being revelatory — showing me how much I didn’t know about something I took so much for granted.
We Know What It Says, But What Does It Mean?
What does the First Amendment say and what does it mean? That was the question we grad students were asked to confront.
The First Amendment says “Congress shall make no law…abridging the freedom of speech, or of the press….” Sounds simple and absolute, right? But what did these terms mean to the people who wrote them and made them part of our Constitution?
Unfortunately, there is little direct evidence to go by — in terms of discussion and debate records — to determine the original intention of the amendment.
But there is circumstantial evidence aplenty. After all, the Founders were intimately familiar with British law, which had a long history of abridging freedom of press and speech. Abridgment came in two forms: prevention of publication through government licensing or censorship, and punishment after publication for content deemed unacceptable by the government or the church.
The first form of abridgment, called “prior restraint,” ended in England in 1694, when Parliament let the law lapse. But the second form, called “seditious libel,” was still in effect in England during the time America was its colony.
Truth was no defense against a charge of seditious libel — what mattered was the perceived damage done to a public official’s reputation. The maximum punishment was death.
The Sedition Act
If it was to have any meaning at all, the First Amendment clearly prevented prior restraint — its authors were not likely to reintroduce a legal concept that had been dead in England for nearly 100 years. But what about punishment after publication?
On July 14, 1798, President John Adams signed the hastily passed Sedition Act, which made it a federal crime to write, speak, or publish anything “false, scandalous and malicious” against the federal government, the Congress, or the president, with the intent to defame them, bring them “into contempt or disrepute,” or “stir up sedition.”
The law was prompted by a feud between Adams and his vice president, Thomas Jefferson — notice that the Sedition Act says nothing about defaming the vice president.
It was also the result of a squabble between two political parties, the Federalists and the Republicans, and fears that the increasingly radical aspects of the French Revolution could spread to the new nation. Editors of pro-Jefferson newspapers and political pamphleteers were prosecuted, as was a Republican representative to Congress from Vermont.
The Supreme Court was never asked to rule on the law’s constitutionality, and it was allowed to expire on March 3, 1801, the day before Inauguration Day, as provided in the act.
In fact, it would be more than 100 years before a new federal law finally spurred the Supreme Court to wrestle with the meaning of the First Amendment. Ultimately, however, the Sedition Act backfired — it contributed to Jefferson’s victory over Adams in the 1800 presidential election and the eventual demise of the Federalists.
Freedom for the Thought That We Hate
In 2007, Anthony Lewis published a book called Freedom for the Thought That We Hate: A Biography of the First Amendment.
Lewis was a reporter and columnist for the New York Times from 1955 through 2001, twice winning the Pulitzer Prize for national reporting. Since 1983, he has been the James Madison Visiting Professor at Columbia University and has also lectured at Harvard Law School and other universities.
Lewis is the author of three other books: Gideon’s Trumpet, about the right to legal counsel; Portrait of a Decade: The Second American Revolution, about the Civil Rights movement; and Make No Law: The Sullivan Case and the First Amendment, about libel and the press.
Freedom for the Thought That We Hate should be required reading for every journalist — and anyone else interested in speech and press freedom.
The book’s title comes from a dissent to a 1929 Supreme Court decision, United States v. Schwimmer, written by 88-year-old Justice Oliver Wendell Holmes Jr.
The case concerned Rosika Schwimmer, a Hungarian pacifist living in Illinois, who wanted to become a U.S. citizen but refused to swear that she would personally bear arms in defense of the country. The U.S. District Court in northern Illinois denied Schwimmer’s petition, the Circuit Court of Appeals reversed the denial, and the case ended up in the U.S. Supreme Court.
Schwimmer ultimately lost her case, but in his dissent, Justice Holmes showed why it is his expansive view of the First Amendment — along with that of his colleague and frequent co-dissenter Justice Louis D. Brandeis — that eventually prevailed:
Some of her answers might excite popular prejudice, but 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.
Formative Years for the First Amendment
The early years of the 20th century were formative ones for the legal interpretation of the First Amendment. As Lewis points out, it wasn’t until 1919 that a Supreme Court opinion — albeit a dissenting one by Holmes and Brandeis in Abrams v. United States — first endorsed a First Amendment claim of freedom.
Why this time lag of more than 100 years from the ratification of the Bill of Rights — of which the First Amendment is a part — until the Supreme Court began a serious discussion over the meaning of the amendment?
First, says Lewis, the Supreme Court rules on matters of federal, rather than state, law. After the federal Sedition Act expired in 1801, there was no federal law concerning press or speech freedom until 1917, when the United States entered World War I, and Congress passed the Espionage Act.
State laws restricting speech and press freedom were not considered by the Supreme Court to be within its purview until the 1925 decision in Gitlow v. New York, some 57 years after the Fourteenth Amendment — theoretically at least — extended Bill of Rights protection to defendants in state trials.
Second, American society was undergoing profound changes — immigration, industrialization, urbanization — that brought a flood of new ideas, many of which appeared to threaten the established order, such as trade unionism, socialism, communism, anarchism, and radicalism of other stripes. These ideas seemed especially dangerous during wartime.
It ultimately fell to the Supreme Court to untangle the messy web of competing ideas and interests that pitted freedom of expression against society’s demand for order and public safety.
In my next column on this subject, I’ll discuss the evolution of the First Amendment, as interpreted by a Supreme Court in transition.
Happy Fourth of July!