“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.”
—Justice Oliver Wendell Holmes, Jr. dissent, United States v. Schwimmer
When Justice Holmes delivered this dissent in 1929, he wasn’t talking about the recent controversial comments by a “Duck Dynasty” reality star. He wasn’t talking about the Snowden NSA leaks. He wasn’t even talking about protestors flying the Confederate flag outside the White House. But at the same time, he was.
Constitutional protection of free speech is something most Americans take for granted. We can say whatever racist, homophobic, misogynist things we want without repercussion from the government, and some of us take wild advantage of this (Phil Robertson, I’m looking at you).
Where that freedom ends is when our speech presents a “clear and present danger” to others, which is one of many reasons Edward Snowden is considered a traitor for his surveillance disclosures. However we feel personally about what these individuals said, however we may disagree, there is still “freedom for the thought that we hate.”
Yes, I’m comparing the Constitutional rights of a reality TV star and a government whistleblower. And I’ll go a step further—how did you first hear about the “Duck Dynasty” or NSA controversies, respectively? I’m going to bet it was a headline, a news story, or a pundit’s opening monologue. It seems we have a theme here, folks, and that theme is First Amendment rights.
It’s these freedoms of speech and press that Anthony Lewis explored in a book that takes its title from the top quote, “Freedom for the Thought That We Hate: A Biography of the First Amendment.” I know, I know. Anything with the sub-heading “A Biography of the First Amendment” sounds like dusty reading. Lewis’ book is anything but. Lewis draws heavily from landmark court decisions but writes so clearly and succinctly that you’re never lost in a pit of legal prose. He gives you some Justices to root for throughout American history (like Holmes) and leads you all the way up to the post 9/11 era. Seriously, if you want to feel smarter for less than $10, it’s worth a read. And if the author’s name sounds familiar, maybe it’s because of his longtime NYT column, his two Pulitzers for journalism, or his recent sad death in March 2013.
I’m not going to go full book report on you, dear reader, but the most illuminating part of Lewis’ book for me was its emphasis on the evolution of our Constitutional rights. It’s not called a “Biography” for nothing. As Lewis writes in “Freedom,” “…in truth the freedoms of speech and of the press have never been absolutes. The courts and society have repeatedly struggled to accommodate other interests along with those.” Phil Robertson might have successfully sued papers for libel in the time of the Founders. In 1918 (when wartime sedition laws were in effect), it would have been criminal for The Washington Post to publish articles critical or disreputable of the US government, such as the NSA leaks.
But the “freedom for the thought that we hate” isn’t just a lucky strike in the modern era. Something Lewis touches on in his book, and which you can find in both the “Duck Dynasty” controversy and the NSA leaks is important social discussion. Lewis quotes a 2006 issue of The Economist, “The big danger is that, in the name of stopping bigots, one may end up by stopping all criticism.”
In a sense, we can’t have our Snowdens without our Phil Robertsons. But if that’s our First Amendment cross to bear, I’ll take it.