Privilege & the Press

Floyd Abrams
Floyd Abrams; drawing by David Levine

“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…

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