All of Lewis’s proposals reflect his faith that the judiciary is well equipped to balance the value of free speech against other values (like privacy and national security) in a thoughtful and independent way. But is he too optimistic? There is a competing, decidedly less heroic account of First Amendment history, which holds that judges have always tended to reflect the public’s prejudices about unpopular speakers, and that most advances for free speech have been initiated not by judges, as Lewis argues, but by political activism. It was abolitionists, in the 1830s, who first argued that Southern states shouldn’t be able to ban antislavery tracts because of the remote possibility they might provoke an insurrection; the Supreme Court took another 130 years to enshrine the underlying principle into law. Similarly, the court began to protect political dissidents like Communists and Ku Klux Klan members in the late 1960s, not in the 1920s and 1950s — that is, only when they were no longer perceived as a serious threat by national majorities.
Lewis’s faith in judges also presumes that free speech controversies will take the same form in the future as they have in the past — namely, as legal battles between an overreaching government and the institutional press, with the judiciary as a neutral arbiter. But is this really likely? The rise of new technologies suggests that the free speech battles of the future may instead pit telecom corporations against private speakers, leaving judges on the sidelines. Consider Verizon’s recent decision to block abortion rights text messages by Naral Pro-Choice America from its mobile networks. (Under pressure, Verizon rescinded the decision but stood by its position that it can decide which messages to transmit.) As several scholars have argued, the solution to this problem of corporate censorship — open-access rules of “net neutrality” that would require telecom operators to make their services available to all speakers on equal terms — is in the hands of Congress and the Federal Communications Commission rather than the courts. No matter how heroic our judges, they’re not well positioned to make regulatory policy.
Moreover, as the traditional news media continue to be challenged by the Internet, the privacy and libel battles of the future won’t be the lopsided affairs Lewis describes — for example, Life magazine and its corporate power versus invasion-of-privacy victims who had no other outlets in which they could set the record straight. Instead, now that everyone with a modem is a potential journalist, we may see more cases in which individual bloggers or small publications attack one another over what are essentially differences of factual nuance. In Britain, which does not require libel plaintiffs to show deliberate falsehood, the lively journal LM (formerly Living Marxism) was bankrupted and forced to close in 2000 after being successfully sued by Independent Television News, which objected to an article charging it had sensationalized its coverage of a Bosnian detention camp. In the age of the blogosphere, inaccurate or intrusive attacks may be better shrugged off as the equivalent of snarky dinner-party gossip than treated as the occasion for lawsuits. But as more material is posted without editors, public discourse is likely to become more brutal and invasive at the same time that it becomes less amenable to judicial oversight.
In the 21st century, the heroic First Amendment tradition may seem like a noble vision from a distant era, in which heroes and villains were easier to identify. But that doesn’t diminish the inspiring achievements of First Amendment heroism. Conservative as well as liberal judges now agree that even speech we hate must be protected, and that is one of the glories of the American constitutional tradition. Anthony Lewis is right to celebrate it.