New book explores First Amendment history

Wednesday, June 14, 2006

Justice Holmes had it right: “We live by symbols.” By that measure few symbols in the history of humankind have been as synonymous with freedom as the First Amendment. Its five freedoms — religion, speech, press, assembly and petition — symbolize the independence of the human spirit, the freeing of the mind and soul from the tyranny of oppression.

The First Amendment is also a command of law, a binding promise by the government to honor the rights of the governed. That promise, with its countless risks, is historically unprecedented. Justice Brandeis underscored that point with his famous observation in Whitney v. California: “Those who won our independence by revolution were not cowards.”

Both the history of the First Amendment as symbol and law are ably presented in a new book, First Freedoms: A Documentary History of First Amendment Rights in America. This book, with no rival, is thoughtful in its substantive offerings and colorful in its visual ones. Charles Haynes, Sam Chaltain (my two colleagues) and Susan Glisson have done a masterful job in documenting the often turbulent and sometimes triumphant history of the Amendment. (Nat Hentoff, a relentless defender of the First Amendment, wrote the foreword to the book, available here.)

In the span of 250 pages — replete with scores of photographs, a valuable timeline, and a resourceful bibliography — the authors take the reader on a documentary journey: From the roots of religious liberty in America (circa 1663) to the drafting of the First Amendment (circa 1789) to the 1919 free-speech wartime cases (Schenck and Abrams) to the 1925 fight over evolution (the Scopes trial) to the pledge of allegiance case of 1940 and 1943 (Gobitis and Barnette) to the free-speech/civil rights cases of the 1960s (e.g., Sullivan) to the flag-desecration cases (Johnson and Eichman) to the more recent free-exercise (e.g., Smith) and establishment-clause (e.g., Zelman) cases. And there is more, much more in this oversize hardback book from Oxford University Press, graced with captivating photographs reproduced on fine stock.

Forgotten facts
The authors of First Freedoms have dug deep into history’s treasure trove of particulars to bring back to life many forgotten facts about this nation’s struggle for religious freedom and expressive liberty. For example, there is the amazing story of the 1837 resolution to ignore any petitions presented to Congress concerning the question of slavery. Incredibly, the First Amendment right of petition notwithstanding, the Congress actually elected to nullify the practical import of that right when it came to talk of slavery. The resolution became a standing rule in 1840. But the spirit of the First Amendment ultimately prevailed — the rule was rescinded in 1844.

The chapters on the wartime-era cases are memorable not only for their discussion of the likes of Zechariah Chafee (the highly influential Harvard scholar) and Jacob Abrams (the lead petitioner in Abrams) but also for the vivid and informative description of one of the central figures of America’s free-speech history — Benjamin Gitlow, the social activist who distributed anti-American propaganda. Accompanying the authors’ discussion of Gitlow v. New York (1925) is a full-page reproduction of the cover page of Gitlow’s infamous “Left-Wing Manifesto,” which could no more incite a person to violence than could an aging avocado. Ironically, and as the authors note, Gitlow was expelled from the Communist Party after his case was handed down from the Supreme Court. Thereafter, he actually testified against his former “comrades” when he appeared before the House Un-American Activities Committee and the Subversive Activities Control Board.

First Freedoms also contains instructive discussions and vivid illustrations of cases such as Near v. Minnesota (the seminal prior-restraint case), in which the front-page of The Saturday Press (Nov. 19, 1927) is reproduced. The often-overlooked role of Col. Robert McCormick, then publisher of the Chicago Tribune, is likewise set out in connection with the Supreme Court’s landmark ruling in the 1931 case.

Those interested in the history of religious freedom will benefit greatly from the chapter on state-sponsored prayer in public schools, the controversy that gave rise to the famous case of Engel v. Vitale and its progeny. The inclusion of photos of a remarkable 1962 memo from Justice Douglas to his colleague Justice Black along with editorial cartoons from the period, bring the controversy back to life with real vigor. Likewise with the chapter on student rights in the public schools (we see Mary Beth and her brother John Tinker decked out in their provocative black armbands), the chapter on the 1971 Pentagon Papers case (richly documented with forgotten facts and poignant illustrations), and the chapter on the Patriot Act (also well documented and illustrated).

Liberty under construction
The first photograph in First Freedoms is a beautiful and moving sight. It is a picture of the Statue of Liberty under construction. The grand 305-foot Lady of Liberty is surrounded by scaffolding and busy workers. Freedom is being built. It is a wonderful metaphor for this book. Freedom — true and evolving freedom — must be constructed anew by each generation. But the work of building liberty is not without its risks. Mindful of that point the authors write:

The documents in this book are drawn from the history of First Amendment rights in America — a bold ongoing experiment in freedom. Like all experiments, it has been full of trail and error. It has often failed, and may finally fail altogether. With experiments come no guarantees.

Haynes, Chaltain and Glisson are nonetheless aware of the immense challenge, though they are never defeatist. They add: “Expanding freedom and justice is never easy; it requires perseverance and sacrifice.” Indeed, and as First Freedoms well documents, the many heroic sacrifices American women and men (and foreigners, too) have made to construct liberty in our nation. Though cracked here and tarnished there, it is still a worthy monument to freedom.

In these times of war and strife (political and religious), the challenge of which the authors speak is great. The question is whether this generation will lend its all to building a new freedom, to constructing its own much needed contribution to liberty.