“We are under a Constitution, but the Constitution is what the judges say it is….”
—Charles Evans Hughes, 1907
Nowadays that statement might be cited by right-wing critics of the courts as a shocking illustration of “judicial activism.” Chief Justice Hughes, as he later became, made it as a statement of fact. He added, “and the judiciary is the safeguard of our liberty and of our property under the Constitution.”
That the meaning of the United States Constitution depends on its interpretation by judges is so obvious that professions of shock at the idea are hard to take seriously. The Constitution lays out a system of government, and of restraints on government power, in a few thousand words, often using such spacious phrases as “due process of law.” Its brevity and open rhetoric are in contrast to the extended specifics of modern constitutions such as South Africa’s. From John Marshall to the present, judges have translated its majestic generalities into concrete commands.
A wonderful example of the interpretative process is what has been made, over the years, of the free expression guarantees of the First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press.” Today those clauses, enforced by the courts, protect journalists and artists and political speakers of all stripes. But for more than a century they gave no effective protection to anyone.
In 1798, just seven years after the First Amendment and the rest of the Bill of Rights were added to the Constitution, a Federalist Congress passed—and a Federalist president, John Adams, signed into law—a Sedition Act that made it a crime to publish false criticism of the president. The statute was never considered by the Supreme Court before it expired in 1801. But members of that court, sitting on circuit as trial judges, enforced the act, presiding at trials of editors under it and sentencing them to fines and imprisonment.
Judges then and for years after seemed to treat the First Amendment’s promises of free expression as admonitions rather than legally enforceable rules. Convictions of disfavored speakers were upheld if the speech could be said to have a “bad tendency”—which amounted to no protection at all. It was not until 1919 that our understanding of what the First Amendment means began to emerge.
During World War I, Congress, at the urging of President Wilson, passed another Sedition Act, which punished interference with the war effort. A group of radicals were prosecuted for throwing leaflets from the tops of buildings in New York protesting Wilson’s dispatch of troops to Russia after the Bolshevik Revolution. For that protest against a president’s policy they were convicted and sentenced to up to twenty years in prison. The Supreme Court affirmed the convictions: one more defeat for claims under the First Amendment.1 But this time there was a dissent, by Justice Oliver Wendell Holmes Jr., joined by Justice Louis D. Brandeis.
“Persecution for the expression of opinions,” Holmes wrote,
seems to me perfectly logical. If you have no doubt of your premises or your power…, you naturally express your wishes in law and sweep away all opposition…. But when 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 desired is better reached by free trade in ideas…. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment…. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death….
Those extraordinary words—no judge but Holmes could have written “as all life is an experiment”—were the first in which a Supreme Court justice treated freedom of speech as a fundamental value. Over the next decade Brandeis and Holmes wrote eloquent dissents again and again in speech cases. They gradually persuaded the country and the Court.
In 1925 the Court intimated for the first time that it would apply the First Amendment’s restrictions on federal power (“Congress shall make no law”) to state abridgments of free expression.2 In 1931 it did so, enforcing the press clause to hold unconstitutional a Minnesota law calling for the suppression of “malicious” newspapers.3 Libel was always considered outside the protection of the First Amendment. During the amendment’s first 173 years no libel judgment was ever held unconstitutional. Then, in 1964, the Supreme Court, in New York Times Co. v. Sullivan, ended the exemption. It held unconstitutional a $500,000 Alabama libel award to a local official who had sued over a New York Times advertisement criticizing Southern officials for the use of brutal tactics against the civil rights movement. In his opinion for the Court, Justice William J. Brennan Jr. said that “the central meaning of the First Amendment” was the right to criticize government officials; he said the Sedi-tion Act of 1798, which punished criticism of the president, was unconsti-tutional.4 Until then all American libel cases were matters of state law; since then most have turned on questions of First Amendment law. In 1969, turning its back on the early-twentieth-century decisions upholding condign punishments for radical speech, the Court held that a state could not constitutionally punish speech advocating “the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Court reversed the Ohio conviction of a Ku Klux Klan member.5
Of course not every claim of First Amendment protection has succeeded. But freedom of expression gets more protection today in this country than in any other. No other country, in particular, protects defamatory publications or hate speech in the expansive way that American law now does. Even the argument that constitutional provisions should be confined to their original meaning has not stood in the way when it comes to the First Amendment. Justice Antonin Scalia, the Court’s leading “originalist,” joined in the 1989 decision6 that a ban on burning the flag in political protest was unconstitutional—a view that James Madison is not likely to have imagined when he drafted the First Amendment.
The process of constitutional interpretation depends, as does decisional law generally in the Anglo-American tradition, on the interplay between judges and lawyers. A notable example of the lawyer’s role was in the 1964 libel case, New York Times v. Sullivan. Counsel for The New York Times, Professor Herbert Wechsler of the Colum- bia Law School, put forward the proposition that a libel suit threatening to inhibit press coverage of a profound public issue, civil rights, was like the restraints imposed on political comment by the Sedition Act of 1798: an argument that Justice Brennan made a central point in his opinion for the Court.
Floyd Abrams is the country’s leading practitioner of First Amendment law. His book is a look at the process of constitutional interpretation from the ground up: how a case arose, how the lawyer making the claim for constitutional protection dug into the facts and analyzed the law, how arguments were developed to present to the courts.
The first thing to say is that Speaking Freely is a fascinating book. Abrams is an engaging writer. He tells stories, which is a way to the reader’s heart: stories of cases in which he has participated over the last thirty-three years. He lets the law emerge from the facts, a wise thing in literature as in law.
The stories Abrams tells illustrate an important point. Lawyers in constitutional cases must not let grand visions of establishing new constitutional theory obscure their first responsibility, which is to win the case for the client on any available ground. Justice Brennan used to say that the most important quality needed by a Supreme Court justice was the ability to count to five. That is, he or she must be able to stake out a position that will attract a majority on the Court. Of course any justice may rather be right, in his or her eyes, than make concessions needed for a majority. But that option is not properly open to a lawyer.
The search for five votes on the Supreme Court was present throughout the first and most important of the cases discussed in Abrams’s book, the Pentagon Papers case. That was the attempt by the Nixon administration in June 1971 to stop The New York Times from publishing stories about and texts from a secret Pentagon history of the Vietnam War.
Abrams got into the Pentagon Papers case in an accidental way that he describes disarmingly. At Yale Law School one of his professors had been Alexander M. Bickel. Like the professor, Abrams as a student had little interest in press freedom issues. He “had never met a journalist” then, he writes, and “had never understood that while there are always arguments available in support of suppressing speech, society is almost always better served when those arguments are rejected.”
In his first years in practice with the New York firm of Cahill Gordon, Abrams helped to represent NBC. That connection found him trying to persuade Professor Bickel to write a brief as a friend of the court in 1971 favoring a press claim, then heading for the Supreme Court, of a right to conceal anonymous sources. Bickel told Abrams on the phone that he was “no First Amendment voluptuary.” That was just what the press organizations wanted for the brief, a rather conservative scholar. Bickel said yes.
On June 14, 1971, Abrams was the host of a lunch in New York at which Professor Bickel told press lawyers and journalists what his approach would be. The Times had started its Pentagon Papers series the day before, with a second installment that morning. That night the Nixon administration told the paper it would go to court. The Times‘s longtime law firm refused to represent it. The Times‘s general counsel, James C. Goodale, thought of Bickel and, around midnight, found him. He then called Abrams. He and Bickel worked through the night.
The next morning Bickel met journalists and executives of the Times. He emphasized, Abrams writes, “the need for us to articulate legal positions that could attract the…critical fifth vote on the Supreme Court.” They assumed that they were likely to have support from four justices usually sympathetic to freedom of expression: Brennan, Hugo L. Black, William O. Douglas, and Thurgood Marshall.
From the start Bickel wanted to emphasize Congress’s refusal over the years to pass a statute authorizing such a suit for an injunction against publication of national security information. It was a point based on the Separation of Powers: the Constitution’s fundamental premise that each branch of government has its own function to perform. Bickel relied on the steel seizure case of 1952, when the Supreme Court held that President Truman’s seizure of the nation’s steel mills to prevent a damaging strike during the Korean War was invalid because Congress had not authorized the remedy of seizure.
Abrams v. United States, 250 US 616 (1919).↩
Gitlow v. New York, 268 US 652 (1925).↩
Near v. Minnesota, 283 US 697 (1931).↩
New York Times Co. v. Sullivan, 376 US 254 (1964).↩
Brandenburg v. Ohio, 395 US 444 (1969).↩
Texas v. Johnson, 491 US 397 (1989).↩