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異見的自由：美國憲法增修條文第一條與言論自由的保障
言論自由是民主政府合法性的泉源。
也是約束政府惡行最有效的機制！
有「美國第十位大法官」之美譽的兩屆普立茲獎得主，
從美國憲法增修條文第一條的詮釋與應用，
探索言論自由的保障從何而來？言論自由的範圍以何處為界？
除非導致「明顯且立即的危險」，任何言論不應受限制。
除非存心「蓄意撒謊或輕率疏忽」，任何對政府的批評不該被懲處。
「人民有言論、出版與新聞的自由，政府不得任意限制或剝奪。」這樣的概念，在今天世界的民主國家，已經成為人們生活中想當然耳、不容挑戰的傳統。而美國國會於1791年通過的「憲法增修條文第一條」，對當代言論自由的思想與實踐發揮了巨大的啟迪效果，且讓美國超越了西歐等其他民主國家，成為對言論自由的保障最堅定、最寬廣的國家。譬如，任何尋常百姓的一句話、作家的一則評論、新聞媒體的一篇報導，除非能引發「明顯且立即的危險」，都不該受到任何事前審查或事後懲處。政府或公眾人物除非能證明被告蓄意撒謊、或是輕率疏忽，否則無法以誹謗陷人於罪。這是1919年的霍姆斯大法官與1964年的蘇利文案留下的兩項重大典範。
然而，如果我們回顧歷史，就會發現當代言論自由的保障其實經過漫長的發展，並非一蹴可幾。「憲法增修條文第一條」通過之初並未受到重視。1798年，第二任總統亞當斯簽署通過《反煽動叛亂法》，禁止詆毀政府、侮辱元首的批評。在第一次世界大戰時，威爾遜總統通過的《間諜法》限制任何反戰或「對國家不忠」的言論。之後，美國政府仍然常以事涉國家機密、威脅國家安全等理由，對新聞報導、採訪與評論進行打壓……
我們憎惡的思想也應享有自由。但是，言論自由不該無限上綱。
面對仇恨、歧視、猥褻、侵犯隱私的評論與報導，在捍衛言論與保障其他價值之間，我們該如何抉擇？
《異見的自由》作者安東尼‧路易斯是聲譽斐然的資深司法記者。在本書中，他首先帶領讀者走進「增修條文第一條」誕生的歷史現場，闡揚美國憲法起草人麥迪遜等建國先賢極力爭取、捍衛言論自由的理由，進而從過去兩百多年來的司法爭議、雙方辯辭，以及一樁又一樁最高法院大法官的判決當中，探索「增修條文第一條」之立法宗旨，並如何在無數的作家、記者、出版商、異議分子的努力抗爭下，擴大其對人民「思其所欲、言其所思」之權利的保障。
然而，享有「美國第十位大法官」之美譽的安東尼‧路易斯亦強調，言論自由不該無限上綱，而必須與民主社會中的其他重要價值與利益相互調和。譬如，當新聞採訪報導的權利與個人保障其隱私不被侵犯的利益相衝突時，孰輕孰重？法院為了公正的審判，難道沒有權利要求媒體記者公布其消息來源嗎？此外，為了保護弱勢族群而限制仇恨、歧視言論的規範，不該獲得比言論自由更多的尊重嗎？在諸多重大爭議上，路易斯亦表達了他個人不苟同大法官判決的立場。
透過對思想脈絡的分析與法庭攻防的爬梳，《異見的自由》不僅是對美國憲法精神與言論自由之真諦極為精彩的發揚，幫助我們瞭解到為何「我們憎惡的思想也應享有自由」，亦是對當代社會諸多重大多元、矛盾價值的深刻探討。任何一位關心民主社會能如何透過理性的法律來解決社會衝突、保障基本人權與多元價值的現代公民，皆應詳讀本書。
本書中關於「增修條文第一條」之重要立法與判決
◎1735年，曾格案：首起保障新聞自由的案件，逐步確立媒體有對政府官員進行批評的自由。
◎1791年，增修條文第一條通過，禁止國會立法剝奪言論與出版自由。
◎1798年，美國憲法之父詹姆斯‧麥迪遜在《維吉尼亞決議案》中指出：「自由檢驗公共人物與公共事務」是美國政治制度的基礎。
◎1919年，申克訴合眾國案：霍姆斯大法官指出，言論若有造成明顯且立即的危險之虞，才應受懲處的判決準則。
◎1929，合眾國訴施維默案：霍姆斯大法官在意見書中寫道：「我們憎惡的思想也應享有自由。」
◎1930年，尼爾訴明尼蘇達州案：保障新聞媒體有權利對政府作為、失職和犯行進行批評。在此案之後，確立了新聞報導有免於事前限制的自由。
◎1931年，史通伯格訴加州案：除了言語之外，象徵性言論也受增修條文第一條保護。
◎1941年，布里奇斯訴加州案：大法官布萊克倡議，增修條文第一條的立意在於賦予美國人民比英國在言論自由上更為堅實的保障。
◎1964年，紐約時報訴蘇利文案：終止誹謗政府會受罰的歷史。
◎1967年，時代雜誌訴希爾案：高舉「知的權利」的地位凌駕隱私權之上。在文明社會中生活的人，必定得有向大眾揭露隱私的必要。
◎1969年，布蘭登堡訴俄亥俄州案：最高法院對鼓吹暴力或犯罪的行為提出新的檢驗標準。除非言論有煽動他人立即犯罪，且有可能促成立即犯罪，否則不得懲罰。
◎1990年，合眾國訴艾希曼案：最高法院裁定《國旗保護法》違憲，因為表達政治立場之自由正是美國憲法意欲保障的自由。
◎2002年，明尼蘇達州共和黨訴懷特案：法官候選人得以公開表達對敏感議題的個人意見。法院政治化即使日趨嚴重，也是我們維護言論自由的體制必須付出的代價。
也是約束政府惡行最有效的機制！
有「美國第十位大法官」之美譽的兩屆普立茲獎得主，
從美國憲法增修條文第一條的詮釋與應用，
探索言論自由的保障從何而來？言論自由的範圍以何處為界？
除非導致「明顯且立即的危險」，任何言論不應受限制。
除非存心「蓄意撒謊或輕率疏忽」，任何對政府的批評不該被懲處。
「人民有言論、出版與新聞的自由，政府不得任意限制或剝奪。」這樣的概念，在今天世界的民主國家，已經成為人們生活中想當然耳、不容挑戰的傳統。而美國國會於1791年通過的「憲法增修條文第一條」，對當代言論自由的思想與實踐發揮了巨大的啟迪效果，且讓美國超越了西歐等其他民主國家，成為對言論自由的保障最堅定、最寬廣的國家。譬如，任何尋常百姓的一句話、作家的一則評論、新聞媒體的一篇報導，除非能引發「明顯且立即的危險」，都不該受到任何事前審查或事後懲處。政府或公眾人物除非能證明被告蓄意撒謊、或是輕率疏忽，否則無法以誹謗陷人於罪。這是1919年的霍姆斯大法官與1964年的蘇利文案留下的兩項重大典範。
然而，如果我們回顧歷史，就會發現當代言論自由的保障其實經過漫長的發展，並非一蹴可幾。「憲法增修條文第一條」通過之初並未受到重視。1798年，第二任總統亞當斯簽署通過《反煽動叛亂法》，禁止詆毀政府、侮辱元首的批評。在第一次世界大戰時，威爾遜總統通過的《間諜法》限制任何反戰或「對國家不忠」的言論。之後，美國政府仍然常以事涉國家機密、威脅國家安全等理由，對新聞報導、採訪與評論進行打壓……
我們憎惡的思想也應享有自由。但是，言論自由不該無限上綱。
面對仇恨、歧視、猥褻、侵犯隱私的評論與報導，在捍衛言論與保障其他價值之間，我們該如何抉擇？
《異見的自由》作者安東尼‧路易斯是聲譽斐然的資深司法記者。在本書中，他首先帶領讀者走進「增修條文第一條」誕生的歷史現場，闡揚美國憲法起草人麥迪遜等建國先賢極力爭取、捍衛言論自由的理由，進而從過去兩百多年來的司法爭議、雙方辯辭，以及一樁又一樁最高法院大法官的判決當中，探索「增修條文第一條」之立法宗旨，並如何在無數的作家、記者、出版商、異議分子的努力抗爭下，擴大其對人民「思其所欲、言其所思」之權利的保障。
然而，享有「美國第十位大法官」之美譽的安東尼‧路易斯亦強調，言論自由不該無限上綱，而必須與民主社會中的其他重要價值與利益相互調和。譬如，當新聞採訪報導的權利與個人保障其隱私不被侵犯的利益相衝突時，孰輕孰重？法院為了公正的審判，難道沒有權利要求媒體記者公布其消息來源嗎？此外，為了保護弱勢族群而限制仇恨、歧視言論的規範，不該獲得比言論自由更多的尊重嗎？在諸多重大爭議上，路易斯亦表達了他個人不苟同大法官判決的立場。
透過對思想脈絡的分析與法庭攻防的爬梳，《異見的自由》不僅是對美國憲法精神與言論自由之真諦極為精彩的發揚，幫助我們瞭解到為何「我們憎惡的思想也應享有自由」，亦是對當代社會諸多重大多元、矛盾價值的深刻探討。任何一位關心民主社會能如何透過理性的法律來解決社會衝突、保障基本人權與多元價值的現代公民，皆應詳讀本書。
本書中關於「增修條文第一條」之重要立法與判決
◎1735年，曾格案：首起保障新聞自由的案件，逐步確立媒體有對政府官員進行批評的自由。
◎1791年，增修條文第一條通過，禁止國會立法剝奪言論與出版自由。
◎1798年，美國憲法之父詹姆斯‧麥迪遜在《維吉尼亞決議案》中指出：「自由檢驗公共人物與公共事務」是美國政治制度的基礎。
◎1919年，申克訴合眾國案：霍姆斯大法官指出，言論若有造成明顯且立即的危險之虞，才應受懲處的判決準則。
◎1929，合眾國訴施維默案：霍姆斯大法官在意見書中寫道：「我們憎惡的思想也應享有自由。」
◎1930年，尼爾訴明尼蘇達州案：保障新聞媒體有權利對政府作為、失職和犯行進行批評。在此案之後，確立了新聞報導有免於事前限制的自由。
◎1931年，史通伯格訴加州案：除了言語之外，象徵性言論也受增修條文第一條保護。
◎1941年，布里奇斯訴加州案：大法官布萊克倡議，增修條文第一條的立意在於賦予美國人民比英國在言論自由上更為堅實的保障。
◎1964年，紐約時報訴蘇利文案：終止誹謗政府會受罰的歷史。
◎1967年，時代雜誌訴希爾案：高舉「知的權利」的地位凌駕隱私權之上。在文明社會中生活的人，必定得有向大眾揭露隱私的必要。
◎1969年，布蘭登堡訴俄亥俄州案：最高法院對鼓吹暴力或犯罪的行為提出新的檢驗標準。除非言論有煽動他人立即犯罪，且有可能促成立即犯罪，否則不得懲罰。
◎1990年，合眾國訴艾希曼案：最高法院裁定《國旗保護法》違憲，因為表達政治立場之自由正是美國憲法意欲保障的自由。
◎2002年，明尼蘇達州共和黨訴懷特案：法官候選人得以公開表達對敏感議題的個人意見。法院政治化即使日趨嚴重，也是我們維護言論自由的體制必須付出的代價。
320 pages, Paperback
First published December 28, 2007
59 people are currently reading
951 people want to read
About the author
Anthony Lewis
18 books23 followersAnthony Lewis was an American intellectual and columnist for the New York Times.
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October 22, 2022
Anthony Lewis provides a comprehensive biography of the critical First Amendment, including critical court cases over the past several hundred years.
Critical information from his book includes:
America has the most outspoken society on earth. We are free to think and say what we want with little fear of consequences. We have created a free marketplace of ideas, even if we disagree with or find offense with ideas that are shared.
"Freedom to speak and write as you wish is the inescapable necessity of democracy."
Justice Oliver Wendell Holmes protected "freedom for the thought we hate."
But free speech and free press is not always what it seems in the U.S. When there have been unusual times, stoked by fear, laws have been introduced that reign in the ability to speak freely.
The Sedition Act, passed on July 4, 1798, made seditious libel a federal crime. Those who defamed or wrote maliciously about the US government, members of Congress, or the President could be imprisoned for up to two years and fined up to $2,000.
When Thomas Jefferson became president in 1801, he pardoned everyone who had been convicted for violating the Sedition Act. However, in 1918, the Espionage Act was passed which made it a crime to print, write or publish anything negative about the armed forces, Constitution, military uniforms or the flag.
Justice Holmes famous dissenting opinion indicated that the Constitution and all of life is an experiment. He expressed that we should be vigilant about freedom of speech unless it immediately threatened lives.
Justice Holmes and Brandeis' rhetoric was so powerful that it changed perceptions about free speech in America. "It showed the power of words to change minds."
Various states, including Montana, Minnesota, and Louisiana created state laws where individuals and newspapers could not criticize elected officials. Chief George Sutherland opined, "People are entitled to full information in respect to the doings or misdoings of their government."
Lewis does a terrific job describing the role of the press with civil rights movement, Watergate, the Vietnam War, and the Pentagon Papers. In these national scenarios, the newspapers demonstrated great courage at ensuring the public heard the truth.
Then came 9/11 and President Bush exercised vast executive power without the approval of Congress and often done shrouded in secrecy. Bush's unilateral power went unchecked by the press. Documents that were typically available to the press were declared classified. "The press performed more like a stenographer" during this era. Eventually the New York Times published a story that President Bush had ordered wiretapping of American's international calls without obtaining a warrant.
Lewis sums it up by stating that the press owes society courage. The press helps hold government accountable.
Highly recommend for those interested in the First Amendment and understanding why protecting the freedom of speech and the freedom of the press is so critical for democracy.
Critical information from his book includes:
America has the most outspoken society on earth. We are free to think and say what we want with little fear of consequences. We have created a free marketplace of ideas, even if we disagree with or find offense with ideas that are shared.
"Freedom to speak and write as you wish is the inescapable necessity of democracy."
Justice Oliver Wendell Holmes protected "freedom for the thought we hate."
But free speech and free press is not always what it seems in the U.S. When there have been unusual times, stoked by fear, laws have been introduced that reign in the ability to speak freely.
The Sedition Act, passed on July 4, 1798, made seditious libel a federal crime. Those who defamed or wrote maliciously about the US government, members of Congress, or the President could be imprisoned for up to two years and fined up to $2,000.
When Thomas Jefferson became president in 1801, he pardoned everyone who had been convicted for violating the Sedition Act. However, in 1918, the Espionage Act was passed which made it a crime to print, write or publish anything negative about the armed forces, Constitution, military uniforms or the flag.
Justice Holmes famous dissenting opinion indicated that the Constitution and all of life is an experiment. He expressed that we should be vigilant about freedom of speech unless it immediately threatened lives.
Justice Holmes and Brandeis' rhetoric was so powerful that it changed perceptions about free speech in America. "It showed the power of words to change minds."
Various states, including Montana, Minnesota, and Louisiana created state laws where individuals and newspapers could not criticize elected officials. Chief George Sutherland opined, "People are entitled to full information in respect to the doings or misdoings of their government."
Lewis does a terrific job describing the role of the press with civil rights movement, Watergate, the Vietnam War, and the Pentagon Papers. In these national scenarios, the newspapers demonstrated great courage at ensuring the public heard the truth.
Then came 9/11 and President Bush exercised vast executive power without the approval of Congress and often done shrouded in secrecy. Bush's unilateral power went unchecked by the press. Documents that were typically available to the press were declared classified. "The press performed more like a stenographer" during this era. Eventually the New York Times published a story that President Bush had ordered wiretapping of American's international calls without obtaining a warrant.
Lewis sums it up by stating that the press owes society courage. The press helps hold government accountable.
Highly recommend for those interested in the First Amendment and understanding why protecting the freedom of speech and the freedom of the press is so critical for democracy.
December 19, 2016
Lewis offers a brief biography of the most oft-cited portion of the American Bill of Rights, the First Amendment. Exploring free speech and expression through the eyes of America's political and social evolution, Lewis presents a well-grounded political and constitutional treatise on the subject. Looking first to the evolution of free speech in the United States, Lewis explores it as a reaction to the lack of such opportunity when the Thirteen Colonies were part of the British Empire. Sedition and libel became the most popularly adjudicated actions, especially between individuals and the burgeoning published press. Acceptance of freedom to express oneself in the spoken word and in print was by no means as far-reaching as it is today, even though it was ensconced in the constitutional documents of the country. It took time and an evolutionary process of the courts to accept new and deeply-rooted understandings of these freedoms. Lewis shows how the Supreme Court shaped free speech and expression in the 20th century, trumping some of the early interpretations of the Amendment, and tightening the reaction to laws that sought to impede these rights. Lewis also explores the press angle and freedom to shield sources as a mean of garnering free speech. By not having to openly reveal the names of those who offered information to flex the journalistic muscle of freedom of expression, the courts ruled that the First Amendment worked both to encourage expression and to protect it from government intrusion. While cases and precedent evolved through to the latter part of the 20th century, there was surely a great surge in open interpretation from the 19th century, which appears all but barren in its legal proceedings on speech. Adding personal expression through action into the mix of this biographical piece, Lewis shows how Americans and their varied personal beliefs found refuge in an open interpretation of the Amendment, though time and political fear shaped or suspended some fundamental rights for periods of time. Lewis mentioned the German Scare of the Great War, Japanese internment camps of the Second World War, and racial profiling during the early stages of the War on Terror, all of which were events wherein the Federal Government played on the emotions of the public (and the press) to push through laws or actions that blatantly violated personal rights. It was only the courts, who are reactionary and not proactive in their adjudication, who kept the leash of the US Constitution tightly in hand. Tackling such a political powder keg as the First Amendment, Lewis does present the reader with a well-developed exploration of the constitutional and political foundations behind a right that pushes the boundaries of tolerance and acceptance of all peoples. Succinct, yet detailed enough to make strong arguments, Lewis succeeds in what he sought to do with this tome, that will likely enlighten those who have the patience to wade into the discussion.
Lewis is able to offer his views in an effective manner without an awkward attempt to inculcate ideas. Using numerous legal sources, cases, and historical settings, Lewis is able to present a strong case for the effective use of the First Amendment, while also pointing out when the courts dropped the ball. As constitutional interpretation falls to the courts (though I could open a chasm by mentioning the role the courts have in this regard), Lewis shows how a decision made at one point was reversed or completely contradicted at another point in time. Evolution of opinions and judicial understanding came as America grew, though the political and emotional blinders were clearly evident, perhaps a throwback to support the general sentiments held by the populace. That said, Lewis also shows that the courts do not fall prey to letting public sentiment determine the direction in which the constitutional winds blow. I suspect this ability to effective present strong arguments and cases comes from a long history of exploring the judicial system. This benefits the reader who might not be as well-versed, even if they are eager to learn. Lewis is a decent teacher and makes his arguments transparent, leaving the reader to decide if they agree or have an opinion of their own; the crux of this book in action.
Kudos, Mr. Lewis for this wonderful exploration of political and constitutional arguments. You tell things in such a way that the information flows freely without boring the reader will too much minutiae.
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Lewis is able to offer his views in an effective manner without an awkward attempt to inculcate ideas. Using numerous legal sources, cases, and historical settings, Lewis is able to present a strong case for the effective use of the First Amendment, while also pointing out when the courts dropped the ball. As constitutional interpretation falls to the courts (though I could open a chasm by mentioning the role the courts have in this regard), Lewis shows how a decision made at one point was reversed or completely contradicted at another point in time. Evolution of opinions and judicial understanding came as America grew, though the political and emotional blinders were clearly evident, perhaps a throwback to support the general sentiments held by the populace. That said, Lewis also shows that the courts do not fall prey to letting public sentiment determine the direction in which the constitutional winds blow. I suspect this ability to effective present strong arguments and cases comes from a long history of exploring the judicial system. This benefits the reader who might not be as well-versed, even if they are eager to learn. Lewis is a decent teacher and makes his arguments transparent, leaving the reader to decide if they agree or have an opinion of their own; the crux of this book in action.
Kudos, Mr. Lewis for this wonderful exploration of political and constitutional arguments. You tell things in such a way that the information flows freely without boring the reader will too much minutiae.
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May 13, 2015
See the title? That's the point.
September 13, 2017
Fascinating history. Deserves a much longer review (which I'll write soon enough) but loved the contours of what constitutes freedom of speech in the US - pertinent lessons for India as well.
June 5, 2019
By Darren Chaker - great book, to the point and illustrates the evolution of the First Amendment.
January 16, 2021
Exciting title, but as soon as you crack open the cover, the truth is revealed... this book is boring boring boooooringggg. If only I didn’t have to read it for class...
February 15, 2012
Anthony Lewis' Freedom for the Though That We Hate: A Biography of the First Amendment is exactly that: a brief if thorough examination of the development of the legal right of free speech in the United States from the original drafting of the amendment, the century or more of neglect by the courts during the 1800s, on through its rapid elevation by the Supreme Court as one of, if not the, most fundamental rights guaranteed under our Constitution. While the first couple of chapters are organized primarily chronologically, the rest of the book is organized thematically so that Mr. Lewis can consider the application of the First Amendment's free speech, expression, and assembly guarantees in various contexts, including hate speech, balancing against other constitutional guarantees, and the press. Although the author occasionally injects his own commentary on the normative value/correctness of the courts' First Amendment jurisprudence, overall the text is neutral and informative. Furthermore, save for some negative references to President George W. Bush's "War on Terror", the sections of text containing Mr. Lewis' personal opinion are clearly phrased as such and could be skimmed/skipped quite easily if the reader is so inclined. I would recommend this book to anyone, regardless of educational background, who is interested the development of First Amendment law in this country.
September 29, 2016
Lewis's writing is casual and compelling, reading more like a thriller I couldn't put down than a book on the history of the First Amendment. He doesn't get too deep into cases, but still gives a detailed overview of judicial, legislative and cultural history and provides a stream of smart analysis and comparisons which really made me question my core beliefs.
It's very basic for those who already have a good understanding of the First Amendment, but it's a quick read to rejog your memory. For others, it's a great starting place to know what cases and issues are worth reading into in more depth.
It's very basic for those who already have a good understanding of the First Amendment, but it's a quick read to rejog your memory. For others, it's a great starting place to know what cases and issues are worth reading into in more depth.
September 10, 2018
Forget everything you think you know about freedom of speech, freedom of the press, and the first amendment. The founders (and later the courts) didn't have the same ideas about these freedoms as we do in the 21st century.
November 27, 2018
This is a great book to read for a history of the First Amendment. It is not an easy read and it takes lots of concentration. There is plenty of heady ideas flowing and it is not always what you expect. Freedom for the Thought That We Hate: A Biography of the First Amendment is part history of how the First Amendment was developed and part law of the cases that expanded a once narrowly viewed right. Anthony Lewis builds his case like the pyramids, strong base rising up majestically. But like the pyramids, it is often tedious, but necessary to complete the project. The subject is fundamental to us Americans and it is treated with the gravitas it deserves. There is a reason the Title is what it is. It serves as both the base for the entire book as well as a reminder why freedom of expression and press is so venerated. If you can preserve the freedom for the thought we hate, then you can preserve the freedom for the thought we hold dear and that process was both hard and long in coming.
January 22, 2015
This book works best when Lewis sticks to history, where he does an excellent job of breaking down the various things that we talk about when we talk about "freedom of speech". The few occasions where Lewis injects personal opinions don't really fit in what is largely a brief examination of how the First Amendment has been shaped by the courts over the years. That minor quibble aside, this is a fascinating read, with lots of excellent nuggets from the highs and lows of judicial interpretation of the Constitution.
February 5, 2015
Lewis describes the development and interpretation of the First Amendment, and by consequence, free speech specifically, in the United States. Within this discourse is the evolution of the Court’s opinion on what free speech constitutes, how it is to be provided, and how it is to be balanced or consolidated with other rights.
Lewis gives the information in an accessible but thorough manner, and his work has given me greater appreciation and even enjoyment of the freedoms that the First Amendment provides. I recommend this book for those interested in Communication or Politics.
Lewis gives the information in an accessible but thorough manner, and his work has given me greater appreciation and even enjoyment of the freedoms that the First Amendment provides. I recommend this book for those interested in Communication or Politics.
November 22, 2011
Well-written and interesting study of the First Amendment, and without question worth the read - but it could have been better. It seemed at times a collection of articles rather than single (albeit chaptered) tale, and Lewis's political editorializing in the latter portion of the book, although infrequent, was unexpected and at times jarring.
March 30, 2015
This is a solid introduction to the history of the first amendment, and encourages the reader to delve further into the subject. I think it should be required reading for intro to American Government classes.
It's not exhaustive, but no single volume could be. As I said, it's an introduction, but a stirring one.
It's not exhaustive, but no single volume could be. As I said, it's an introduction, but a stirring one.
April 4, 2017
Interesting review of First Amendment law consumable by laypersons.
July 13, 2020
The epistemology of this book: we analyze the past and present of a phenomenon (e.g., Freedom of Thought) to conclude something useful.
This way is following control theory, where a system, instead of perfectly planning everything beforehand, adjusts according to positive and negative feedbacks.
What is a good example of control theory? Imagine you are sending a rocket into space. It is really hard to do it by the top-down approach, namely designing the whole trajectory using math and physics formula, because even some perturbation in the air when the rocket is flying can make your pre-calculated math equations fail. And, it is impossible to predict correctly every single bit of perturbation in the air at the exact moment when your rocket flies there. Under such conditions, control theory helps people repeatedly do "get-feedbacks-and-adjust". For example, when the rocket is leaning towards right, then use propellent to make it a bit back to the left.
Such a model (rather than top-down pre-design, we adjust *smartly* as things go on) is very applicable!
(Example 1) The yes and no's of what should be counted as Freedom of Thoughts, as mentioned in this book. The author pictures the whole historical trace of Freedom of Speech in the US, by enumerating important free speech case law.
- Main act: Figure out the decision boundary of what counts as legal freedom of thoughts, and what illegal
- Method: Case-by-Case analysis, and try to develop some *empirical* theories based on these cases. (Epistemology: Inductive reasoning)
Let's start to go through the list of cases (to learn how US people in the law system adjust according to control theory):
- [Yes] The First Amendment: constitutionally protecting the freedom of speech, press, and thoughts
- [No] 1907's Patterson v. Colorado -> "bad tendency" test: speech is illegal if it has a tendency to harm public welfare. A newspaper publisher is charged because it accused Colorado judges of acting on behalf of local utility companies.
- [No] 1919's Abrams v. United States -> "bad tendency" test: antiwar activists were convicted because they passed out leaflets encouraging workers to impede the war effort
- [No] 1919 case Schenck v. United States -> "clear and present danger" test: An antiwar activist did not have a First Amendment right to advocate draft resistance.
- [No] Espionage Act of 1917 and the Sedition Act of 1918: individuals who protested against President Woodrow Wilson's sending of soldiers to Russia were tried and given a twenty-year jail sentence
- [No] 1927 case of Whitney v. California -> "clear and present danger" test: it is illegal to help establish the Communist Labor Party of America, a group charged by the state with teaching the violent overthrow of government.
- [No] 1928's Olmstead v. United States: basic privacy protection outlaw freedom of press.
- [Yes] 1931's Stromberg v. California: A 1919 California statute banning red flags was unconstitutional.
- [Yes] 1964's New York Times Co. v. Sullivan: speech about issues of public impact should be unrestricted, vigorous and public, even if such discussion communicates extreme negative criticism of public servants and members of government.
Look, it's so much fun to deepen our understanding of something through many examples!
(Example 2) How Jury is added to the legal system, and how it evolves.
(Example 3) Very very complicated things such as social reforms
(Example 4) Companies testing out a beta version of their product
(Example 5) Our life model! Note that we always have a partial observation of the world, so we have to make imperfect decisions -> gather more information -> adjust new decisions. That's why the idea of reflection looks attractive to people (e.g., many people's role model, Benjamin Franklin, in his autobiography mentions that he reflects soooooo many things for himself, and very frequently; the quote "I reflect myself on three aspects every day," or "吾日三省吾身" in Chinese from
This way is following control theory, where a system, instead of perfectly planning everything beforehand, adjusts according to positive and negative feedbacks.
What is a good example of control theory? Imagine you are sending a rocket into space. It is really hard to do it by the top-down approach, namely designing the whole trajectory using math and physics formula, because even some perturbation in the air when the rocket is flying can make your pre-calculated math equations fail. And, it is impossible to predict correctly every single bit of perturbation in the air at the exact moment when your rocket flies there. Under such conditions, control theory helps people repeatedly do "get-feedbacks-and-adjust". For example, when the rocket is leaning towards right, then use propellent to make it a bit back to the left.
Such a model (rather than top-down pre-design, we adjust *smartly* as things go on) is very applicable!
(Example 1) The yes and no's of what should be counted as Freedom of Thoughts, as mentioned in this book. The author pictures the whole historical trace of Freedom of Speech in the US, by enumerating important free speech case law.
- Main act: Figure out the decision boundary of what counts as legal freedom of thoughts, and what illegal
- Method: Case-by-Case analysis, and try to develop some *empirical* theories based on these cases. (Epistemology: Inductive reasoning)
Let's start to go through the list of cases (to learn how US people in the law system adjust according to control theory):
- [Yes] The First Amendment: constitutionally protecting the freedom of speech, press, and thoughts
- [No] 1907's Patterson v. Colorado -> "bad tendency" test: speech is illegal if it has a tendency to harm public welfare. A newspaper publisher is charged because it accused Colorado judges of acting on behalf of local utility companies.
- [No] 1919's Abrams v. United States -> "bad tendency" test: antiwar activists were convicted because they passed out leaflets encouraging workers to impede the war effort
- [No] 1919 case Schenck v. United States -> "clear and present danger" test: An antiwar activist did not have a First Amendment right to advocate draft resistance.
- [No] Espionage Act of 1917 and the Sedition Act of 1918: individuals who protested against President Woodrow Wilson's sending of soldiers to Russia were tried and given a twenty-year jail sentence
- [No] 1927 case of Whitney v. California -> "clear and present danger" test: it is illegal to help establish the Communist Labor Party of America, a group charged by the state with teaching the violent overthrow of government.
- [No] 1928's Olmstead v. United States: basic privacy protection outlaw freedom of press.
- [Yes] 1931's Stromberg v. California: A 1919 California statute banning red flags was unconstitutional.
- [Yes] 1964's New York Times Co. v. Sullivan: speech about issues of public impact should be unrestricted, vigorous and public, even if such discussion communicates extreme negative criticism of public servants and members of government.
Look, it's so much fun to deepen our understanding of something through many examples!
(Example 2) How Jury is added to the legal system, and how it evolves.
(Example 3) Very very complicated things such as social reforms
(Example 4) Companies testing out a beta version of their product
(Example 5) Our life model! Note that we always have a partial observation of the world, so we have to make imperfect decisions -> gather more information -> adjust new decisions. That's why the idea of reflection looks attractive to people (e.g., many people's role model, Benjamin Franklin, in his autobiography mentions that he reflects soooooo many things for himself, and very frequently; the quote "I reflect myself on three aspects every day," or "吾日三省吾身" in Chinese from
November 11, 2020
The history of the first amendment gives Americans the broadest freedom of speech, especially the press. Undoubtably the freedom of thought is the fundamental of democracy, how to balance the interests with privacy/press privilege sometimes even the fears would be difficult and frustrated. One potential issue was also raised that the judge election could introduce the same problem - money talks - as the politician election.
To end this book with Judge Holmes:
one of the valuable functions of dissenting speech, including speech that advocates violent revolution, is its capacity to generate some of the grievances, aspirations and mobilizations that force political adaptation and transformation. . . . Probably the most energizing contribution that the freedom of speech can make is simply to leave people free to follow their political thoughts wherever they might lead—free, that is, to think the unthinkable regarding political loyalty, consent, obedience and violence.
To end this book with Judge Holmes:
one of the valuable functions of dissenting speech, including speech that advocates violent revolution, is its capacity to generate some of the grievances, aspirations and mobilizations that force political adaptation and transformation. . . . Probably the most energizing contribution that the freedom of speech can make is simply to leave people free to follow their political thoughts wherever they might lead—free, that is, to think the unthinkable regarding political loyalty, consent, obedience and violence.
November 7, 2017
This book was exactly what its title promised, a thoughtful analysis of the way the first amendment was conceived and how its interpretation has changed throughout the life of this country. Lewis gives the reader the context necessary to understand the step-by-step expansion that each Supreme Court decision gave it and how it became enshrined in our political life. Lewis also does a good job in comparing how the US judiciary’s understanding of free speech differs from the European or Canadian understanding. He treats the reader to a thoughtful discussion of the cost-benefit analysis that have to be made between defending free speech and censoring hate speech. Overall, Lewis book was quite informative and valuable in understanding the role that interpretation must have in our defense of the constitution.
July 23, 2019
An interesting account of the history of the First Amendment in the United States, with relevant court cases explained thematically, rather than chronologically. Usually I wouldn't like that, but here it makes sense. I was surprised to learn that the FA was widely ignored until the 20th Century, and that the Founding Fathers had little to say about their intent in creating it. A good look at the tension between freedom of speech/freedom of the press and other rights, such as the right to a fair trial.
December 21, 2018
It's concise, informative, and exactly what it says it is. Mr. Lewis wears his biases on his sleeve so it's easy to ignore them if you want to receive just pure information rather than his opinions. It's a solid recommend for anyone interested in the subject matter. Hear more here: https://soundcloud.com/geo-flores-709...
April 11, 2019
Having stumbled across Freedom for the Thought that We Hate recently, it is now one of my favorite books. It is a well researched, sober, and thoughtful exploration of the history of the first amendement - mostly focusing on free speech - from before the founding of the United States to the most recent SCOTUS decisions. This is a book that I would highly recommend to others.
January 23, 2021
A great overview of important US court decisions about free speech; I found lots of interesting little tidbits I'd look up on the side while I read. This book focuses on freedom of speech in its literal meaning, as in freedom from government limits on speech (and not the more recent "cancel culture" arguments that often smudge the term into a vague catch-all). Definitely worth reading.
April 7, 2021
Given the current dialogue on the First Amendment and censorship, I p[kicked this book to help me better understand the full concept of "freedom of speech and freedom of the press." This book does present a thorough background on the Founding Fathers' views on those freedoms and how the Supreme Court rulings have solidified the primacy of them in our society.
January 24, 2021
A good overview of the history of decisions re the First Amendment; also, interesting comparisons with Britain and the Common Law. There is only a smattering about Free Speech and Campaign Finance; and Lewis acknowledges that this would be an entirely separate book.
March 22, 2008
I expected this to add to my existing knowledge of the First Amendment, but it just served as a refresher course. Skip this book if you have a working knowledge of the subject.
June 28, 2020
Anthony Lewis, ganhador do Pulitzer por duas vezes e reconhecido como precursor do legal journalism nos EUA, traz em "Freedom for the thought that we hate" uma verdadeira biografia de duas das mais importantes cláusulas da Primeira Emenda à Constituição Americana: freedom of speech e freedom of the press.
Tratando a temática desde a época colonial, Lewis traça uma visão panorâmica das decisões da Suprema Corte e da política americana nas questões de liberdade de expressão e de imprensa. Para tal, adota como premissa o fato de que tais liberdades representam, em verdade, um elemento essencial no sucesso da diversa sociedade americana.
Desde um início pouco glorioso e de gigantes arbitrariedades em relação às referidas liberdades na Suprema Corte, Lewis demonstra como o amadurecimento da sociedade e de sua pluralidade foram refletidos na interpretação da Corte acerca dos limites (ou ausência de) nas questões de expressão e de imprensa. De fato, foi somente no início do século XX que a Corte, sobretudo a partir dos votos vencidos de Louis Brandeis e Oliver Wendell Holmes Jr., deu maior valor e abrangência às liberdades tão veneradas atualmente. Inclusive, é de uma passagem de Holmes que Lewis retira o título de seu livro (em United States v. Schwimmer, 1929).
Interessante no texto de Lewis é a clara conexão entre diversas turbulências políticas de natureza externa enfrentadas pelos EUA com a flexibilização do alcance (diminuição) da proteção às liberdades de expressão e imprensa. Nesse sentido, diversos dos momentos em que a Suprema Corte chancelou limitações às referidas liberdades podem ser entendidos como respostas a inimigos externos (sejam eles franceses ou ingleses no período revolucionário e logo em seguida, sejam as guerras mundiais, o nazismo, o comunismo, ou, mais recentemente, a guerra ao terrorismo).
Com um escrita leve e de facílimo entendimento, o livro de Lewis é um clássico altamente recomendado para quem pretende entender as lições básicas de liberdade de expressão e de imprensa nos EUA.
Tratando a temática desde a época colonial, Lewis traça uma visão panorâmica das decisões da Suprema Corte e da política americana nas questões de liberdade de expressão e de imprensa. Para tal, adota como premissa o fato de que tais liberdades representam, em verdade, um elemento essencial no sucesso da diversa sociedade americana.
Desde um início pouco glorioso e de gigantes arbitrariedades em relação às referidas liberdades na Suprema Corte, Lewis demonstra como o amadurecimento da sociedade e de sua pluralidade foram refletidos na interpretação da Corte acerca dos limites (ou ausência de) nas questões de expressão e de imprensa. De fato, foi somente no início do século XX que a Corte, sobretudo a partir dos votos vencidos de Louis Brandeis e Oliver Wendell Holmes Jr., deu maior valor e abrangência às liberdades tão veneradas atualmente. Inclusive, é de uma passagem de Holmes que Lewis retira o título de seu livro (em United States v. Schwimmer, 1929).
Interessante no texto de Lewis é a clara conexão entre diversas turbulências políticas de natureza externa enfrentadas pelos EUA com a flexibilização do alcance (diminuição) da proteção às liberdades de expressão e imprensa. Nesse sentido, diversos dos momentos em que a Suprema Corte chancelou limitações às referidas liberdades podem ser entendidos como respostas a inimigos externos (sejam eles franceses ou ingleses no período revolucionário e logo em seguida, sejam as guerras mundiais, o nazismo, o comunismo, ou, mais recentemente, a guerra ao terrorismo).
Com um escrita leve e de facílimo entendimento, o livro de Lewis é um clássico altamente recomendado para quem pretende entender as lições básicas de liberdade de expressão e de imprensa nos EUA.
September 15, 2025
This had all the warning signs of the bad book by the great author: a short volume on some sweeping topic that all his other works deal with in more specific ways. And indeed, it was a big disappointment.
Lewis, who wrote two great books about specific Supreme Court cases, tackles the entirety of the constitutional approach to free speech. I initially hesitated just because it was written long enough ago that it doesn't include anything about the new internet-era political morass over the topic. But a copy was sitting around the office, so I gave it a shot. It has a real slapped-together feel -- it's not well organized, and there are parts where he seems to have just left out key facts in ways that make some arguments unparseable. There is also repeated editorializing, where he says whether he thinks certain decisions were good or bad, relying entirely on his own authority instead of much in the way of argumentation.
Skip this one.
Lewis, who wrote two great books about specific Supreme Court cases, tackles the entirety of the constitutional approach to free speech. I initially hesitated just because it was written long enough ago that it doesn't include anything about the new internet-era political morass over the topic. But a copy was sitting around the office, so I gave it a shot. It has a real slapped-together feel -- it's not well organized, and there are parts where he seems to have just left out key facts in ways that make some arguments unparseable. There is also repeated editorializing, where he says whether he thinks certain decisions were good or bad, relying entirely on his own authority instead of much in the way of argumentation.
Skip this one.
November 9, 2018
I thought this was really intersting, but it was definitely try and textbookish at times.
It's so interesting to hear the context of some of the decisions that were made and commentaries of Supreme Court Justices over the years in light of the dumpster fire that is our political system in America these days. The role of the First Amendment and of the Freedom of the Press are so important to the freedom we hold dear.
It's so interesting to hear the context of some of the decisions that were made and commentaries of Supreme Court Justices over the years in light of the dumpster fire that is our political system in America these days. The role of the First Amendment and of the Freedom of the Press are so important to the freedom we hold dear.
October 6, 2025
"...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."
The title of the book is drawn from the dissenting opinion by Supreme Court Associate Justice Oliver Wendell Holmes, Jr. in United States v. Schwimmer (1929), quoted above.
Read in Eastern Province, KSA (Jan-Feb 2025)
The title of the book is drawn from the dissenting opinion by Supreme Court Associate Justice Oliver Wendell Holmes, Jr. in United States v. Schwimmer (1929), quoted above.
Read in Eastern Province, KSA (Jan-Feb 2025)
June 24, 2020
This is a very difficult read due to the number of court cases in the book. However, it does bring up interesting points and tracks some of the Court's opinions over time. I noticed that it also points out some of the Court's failings and some flaws in Originist's arguments. A thought provoking read, not sure if I will pick it up again, but thought provoking for sure.
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