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Tuesday, March 25, 2008

A celebration of the First Amendment

Anthony Lewis’ new book, “Freedom for the Thought That We Hate,” is a fascinating, concise and thorough survey course of the First Amendment. At fewer than 200 pages of text, it’s not an in-depth look at freedom of speech but more like a celebration of it. And I’m not saying that because he celebrates the rights of reporters: he argues that the press is “not always the good guy” and judges should apply a balancing test to the question of a reporter’s right to protect anonymous sources.

Also interesting is Lewis’ take on Republican Party v. White which, as all sentient Minnesota lawyers know, is based on the First Amendment rights of judges and judicial candidates. He says: “The Minnesota decision seems to me an egregious misapplication of the First Amendment, treating it woodenly and ignoring the reality involved. The test of judicial decisions is not, as Justice [Oliver Wendell] Holmes said of political speech, ‘the power of the thought to get itself accepted in the competition of the market.’ Some of the greatest judicial opinions have run against popular opinion—as did those of Holmes and [Justice Louis] Brandeis when they dissented from the punishment of radical speech. If judges announce their views in election campaigns, in effect telling the voters that they will decide this way or that, they appear to be just another species of politician. The commitment of judges should be to the law, to interpreting it as faithfully as they can, and not to current popular opinion.”

Lewis goes on to note that when a court narrowly decides a case, as it did White, there is always hope to those disappointed by it that a later court will overrule it. But he also notes that since the “ascendancy” of the First Amendment in New York Times v. Sullivan, the court has not changed its mind about the central importance of freedom of speech or of the press.

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