[MUSIC UP AND UNDER]

BOB GARFIELD:  Anthony Lewis died on Monday at the age of 85. The venerable legal reporter and columnist for the New York Times was a two-time Pulitzer winner, widely regarded as having introduced constitutional scholarship to the role of governing the courts. Also advocacy. A crusader in the way contemporary times reporters cannot be, Lewis is believed to have influenced the very Supreme Court he covered. The pattern began early in his career with the Harvard Law Review article he wrote calling for federal judicial intervention in voting district apportionment, an argument that later prevailed in the Earl Warren Court’s 1962 decision, Baker v. Carr. Not only was Lewis’ scholarship footnoted in the decision, according to an obituary in ProPublica, the reporter lobbied, then solicited General Archibald Cox and Attorney General Robert F Kennedy to file an amicable amicus brief. Thus was Lewis sometimes referred to, with varying degrees of endearment, as the “Tenth Justice.” His activism did not end with the expansion of central judicial power. Lewis was also a full-throated advocate of free speech.

BROOKE GLADSTONE:  If there’s a legal basis for this show and, frankly, for the style of our coverage, it’s the First Amendment, an ironclad protection for all manner of speech, popular and unpopular, a distinctly American bullwark against being silenced, or so we believed. But when I spoke to Andrew Lewis in 2008 about his book, Freedom for the Thought We Hate, he argued that the First Amendment often has been poorly protected by the courts. Part of the problem, he claimed, is that the language of the amendment was left intentionally vague by the founders, and there's virtually no record of their deliberations over what or what not to include.

ANTHONY LEWIS:  “Congress shall make no law abridging the freedom of speech or of the press.” But what does that mean? [LAUGHS] It - it’s a very sweeping-sounding statement, but it doesn't prevent laws against blackmail, which occurs by speech or press. It doesn't prevent laws against threats. It doesn't prevent laws fighting copyright. So judges have to interpret it.
The framers of the Constitution, the principal framer, James Madison, and the others, deliberately wrote the Constitution in a very open language because they knew that to last it would have to be something much broader than a bill of particulars. If you had tried to list every imaginable kind of scenario, the mind couldn't have anticipated what was going to happen.

BROOKE GLADSTONE:  So the first decisive test for the First Amendment came a dozen years later, with the passage of the Sedition Act. That was the big one, right?

ANTHONY LEWIS:  The Sedition Act was a statute that followed the old British idea of seditious libel, which is criminal punishment of those who criticize the government, the church, the president, the king. And, in the United States, the Sedition Act specifically punished malicious criticism of the president. It didn't punish criticism of the vice-president –

  [BROOKE LAUGHS]

- who happened to be Jefferson, the leader of the opposite party. And [LAUGHS] the real purpose of the act, though it was said by the Federalists who passed it to be necessary to stop French Jacobin terrorism from creeping into the United States, the real purpose was to shut up Jeffersonian editors before the election of 1800, when Jefferson would oppose Adams. And a lot of them were sent to jail.

BROOKE GLADSTONE:  And so, do we see the pattern being set here? Is it always a question of national security that puts the blinkers on the First Amendment?

ANTHONY LEWIS:  I don't know that it’s always but it certainly is predominantly so, and that’s what Madison said: Fear of events abroad will reduce Constitutional rights at home. He predicted that. And it’s happened again and again in our history. During World War I, at the behest of President Wilson, Congress passed the Sedition Act and people were jailed for the most innocuous comments, you know, President Wilson’s a fool, he’s running the war badly, things like that, and they were sent to jail for lengthy terms.
In a great case, a group of radicals who threw anonymous pamphlets from the roof of a building in New York, criticizing Wilson for sending American troops to Russia after the Bolshevik Revolution, were prosecuted under the 1918 Sedition Act and sent to prison for 20 years, 20 years for throwing a political pamphlet from the top of a building. It’s, it’s incredible.

BROOKE GLADSTONE:  Then Supreme Court Justice Oliver Wendell Holmes wrote the decision that defended free speech.

ANTHONY LEWIS:  Well, Holmes was an amazing man. The dissent that you’re talking about he wrote in 1919, in the case in which those people threw pamphlets from the top of a building in New York. And he said, memorably, “We have to allow the expression of opinions that we loathe and believe to be fraught with death.”

BROOKE GLADSTONE:  And yet, he flip-flopped, it seemed, on this issue. As you recount in your book, he had no problem with Eugene Debs, the famous union leader, being tossed in the clink.

ANTHONY LEWIS:  Eugene Debs was five times a Socialist Party candidate for president, and he made a speech in Dayton, Ohio and he expressed sympathy for some men who were in prison nearby for counseling evasion of the draft. And Holmes just gave the back of his hand to Debs. And it’s interesting, Debs ran for president the next time from a federal penitentiary.

  [BROOKE LAUGHS]

Friends of Holmes really never understood how he wrote that opinion. But, in any case, rather quickly, within a few months, he changed his position and came out vigorously for freedom of speech and press.

BROOKE GLADSTONE:  It seems that these monumental challenges to the First Amendment happen at huge intervals. There was the case in the 1790s, then more than a century later, in 1918.

ANTHONY LEWIS:  In fact, no claimant for free speech or freedom of the press won a case in the Supreme Court from [LAUGHS] the beginning to 1931. It took 140 years for the Supreme Court to begin enforcing that amendment - amazing.

BROOKE GLADSTONE:  And then you jump to 1964, New York Times v. Sullivan.

ANTHONY LEWIS:  The case was about an ad that appeared in the New York Times, supported by backers of Dr. Martin Luther King, Jr., which said that Southern officials were racist and had abused civil rights demonstrators. And one of those officials sued for libel in Alabama and collected a huge sum from an all-white jury and from a judge who so loved the Confederacy that he seated the jurors in his courtroom in Confederate military uniforms. And the Supreme Court overruled that huge libel verdict for the official of the City of Montgomery, Alabama, and really freed the press to cover Dr. King’s movement. And, you know, Dr. King believed that if Americans generally knew the cruelties that were imposed on blacks in the South, they wouldn't like it. And it turned out when they saw people being brutalized on television or when they read about it in newspapers and magazines, they didn't like it.

BROOKE GLADSTONE:  Let's talk about the strange relationship between free speech and libel.

ANTHONY LEWIS:  Libel was always considered to be outside the protection of the First Amendment. Libel had always been there and people, even those who were for freedom of expression, thought libel was not protected. But then, in the case we've been discussing, New York Times against Sullivan, the formerly merely routine writ of libel was openly used by the official in Montgomery, Alabama, who sued the New York Times in the hope of suppressing the press to keep it from covering the civil rights movement in the South. So it became a political weapon. And the Supreme Court, when it considered the case, analogized it to the Sedition Act of 1798.

BROOKE GLADSTONE:  You come back again and again to how fragile free speech is, especially when fear is leveraged – the Sedition Acts, the Red scare, Vietnam protests. Do you think the Court learns from its mistakes or do you see the same threats time and time again?

ANTHONY LEWIS:  I see the same threat time and time again. These past episodes that you mentioned have had one salutary aftermath, that is, after each one we apologized. We realized we, the American people, on the whole, or politicians and judges, realized that the reaction to the fear had been overdone, for example, in the case of the removal of Japanese-Americans from the West Coast during World War II. Eventually, Congress passed an apology and a modest payment to the survivors.
But where we are now, what’s disturbing about the “war on terror” is that it’s hard to see when that’s going to end, when we can [LAUGHS] look back at it because, you know, the, the terrorists are not going to come aboard the United States Battleship Missouri, as the Japanese did at the end of World War II, and surrender. They're not going to do that, and it’s going to trail on and on.
The issue is now before the Supreme Court, not in a free speech case, but in a case testing the right of the President to hold alleged terrorists who have had no kind of process to determine whether they're in fact, terrorists indefinitely in Guantanamo, without any fair hearing or a chance to answer charges. That case is really the test of the very thing you've questioned, what have we learned from the past?

BROOKE GLADSTONE:  Thank you very much.

ANTHONY LEWIS:  Thank you, Ms. Gladstone.

BROOKE GLADSTONE:  Tony Lewis died this week at the age of 85. In that 2008 case he mentioned, the Supreme Court ruled that detainees in Guantanamo do have the right to challenge in civilian court indefinite imprisonment without charges.