Volume 2, No. 2 (February, 1992) pp. 30-32
[Editor's Note: This is a corrected copy, remedying a mistake in
the last sentence of the fifth paragraph.]
MAKE NO LAW by Anthony Lewis. New York: Random House, 1991.
354pp.
Reviewed by Jerry Goldman, Department of Political Science,
Northwestern University.
MAKE NO LAW by Anthony Lewis is an absorbing study of a landmark
First Amendment case, THE NEW YORK TIMES V. SULLIVAN (376 U.S.
254 (1964)). In 1960, a full-page ad in the New York Times
alleged that the arrest of the Rev. Martin Luther King, Jr. for
perjury in Alabama was part of a campaign to destroy King's
efforts to integrate public facilities and encourage blacks to
vote. L. B. Sullivan, the Montgomery, Alabama city commissioner,
filed a libel action against the newspaper and four black
ministers who were listed as endorsers of the ad, claiming that
the allegations against the Montgomery police defamed him
personally. Under Alabama law, Sullivan did not have to prove
that he had been harmed. A defense claiming that the ad was
truthful was unavailable since the ad contained factual errors.
Sullivan won a $500,000 judgment. The Times appealed through the
Alabama courts, but continued to lose. Its last chance was an
appeal to the Supreme Court of the United States.
In his opinion for a unanimous Court, William J. Brennan, Jr.
argued that the First Amendment protects the publication of all
statements, even false ones, about the conduct of public
officials except when such statements are made with actual malice
(with knowledge that they are false or in reckless disregard of
their truth or falsity). Under this new standard, Sullivan's case
collapsed. The decision also energized a new view of the First
Amendment, one that now accommodates expression that challenges
the existing order.
When reading the Sullivan case today, one might see its
conclusion as a natural progression of First Amendment
principles. But that was decidedly not the case when the Times
recognized that it was vulnerable to libel actions that would
likely impair its ability to function.
A crucial player in the effort to reverse the Alabama courts was
Professor Herbert Wechsler. Legal insiders -- commentators,
judges, and law teachers -- know of Wechsler's fundamental
contributions to the study of federal courts and federalism.
Through Lewis's portrait of Wechsler, legal outsiders will also
grasp his genius, his masterful line of attack, and the "sea
change" in First Amendment thinking occasioned by the
Sullivan case and Wechsler's vital contribution to it.
Sullivan stands out as the single most important case in the
extraordinary career of Justice William J. Brennan, Jr. Lewis had
access to Brennan's files enabling a dramatic reconstruction of
the decision from the inside. Beyond the drafts and comments
common to scholars who trudge through judges' papers, Brennan
followed a practice that proved to be extraordinarily valuable to
Lewis, and by implication, to others seeking to pierce the veil
of secrecy that shrouds the Court. For his thirty-four years on
the Court, Brennan had his law clerks write accounts of the
process of decision whenever Brennan played a significant part.
The clerk's account
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in the Sullivan case enabled Lewis to explain the process of
opinion-writing and coalition-building. It took eight drafts, and
much persuasion, to move the Brethren to act unanimously. Lewis
demonstrates that Brennan's majority view was in jeopardy,
belying the sense of agreement among the five justices who joined
in Brennan's final draft. (Black and Goldberg wrote separate
concurrences; Douglas joined each of them.)
Many of us have relied on Lewis's splendid book, GIDEON'S
TRUMPET, to impart a sense of drama and realism to the world of
constitutional law and politics. But GIDEON'S TRUMPET has been
showing its age. Will Lewis's new work be an acceptable
substitute? The Sullivan case imposes higher start-up costs. The
facts are more complicated, the principles are more abstract, the
interests at issue are less tangible, the historical context is
more complex. For introductory classes in political science, I
doubt that this new effort will come off well. In upper division
classes in civil liberties, the story is compelling and
comprehensive. However, it may prove too elementary by collapsing
a vast body of First Amendment jurisprudence into the span of a
few chapters. Perhaps MAKE NO LAW has a place in judicial process
courses. In the end, it remains the story of a single landmark
decision.
Lewis makes his share of mistakes; some of them are worth
addressing. In seeking to instruct the reader on the life spans
of constitutional decisions, Lewis rightly points out that the
Court can and does reverse itself and that constitutional
amendments may also serve to reverse the Court. To illustrate the
latter, Lewis offers his readers the amendment that overturned
the Court's holding that the government could not issue paper
money (89). However, there is no such amendment. Perhaps Lewis
was referring to Amendment XVI, which gave approval to a national
income tax and thereby overturned the Court's decision in POLLACK
V. FARMERS LOAN & TRUST (1895). However, Lewis's chapter
notes lack sufficient detail to clarify his illustration.
Lewis also engages in some serious distortions of text and fact
that cast doubt on his objectivity. Lewis maintains that Brennan
held the Sedition Act of 1798 unconstitutional in the Sullivan
case. Brennan's opinion reviewed the history of the Sedition Act
and observed the weight of power-houses lined up against its
validity. (No Court had held the Act unconstitutional; the act
expired in 1801.) Brennan then summarized this evidence:
"These views reflect a broad consensus that the Act, because
of the restraint it imposed upon criticism of government and
public officials, was inconsistent with the First
Amendment." Lewis leaps from this statement to the claim
that Brennan had held the 1798 Act invalid.(145)
Brennan's statement is a generous summary of the evidence.
Notable dissents by Holmes, Brandeis, and Robert Jackson must be
weighed against the silence of other justices to support the
invalidity argument. Even granting that there probably was broad
consensus on the Act's invalidity does not transform such
consensus into a decision that the Act was invalid. Therefore, it
is a distortion of Brennan's language to maintain that he was
declaring or holding for the Court that the Sedition Act was
unconstitutional.
Page 32 follows:
Lewis has also taken liberties with the facts surrounding the
flag-burning issue. Lewis notes that the expansive view of the
First Amendment exemplified in the Sullivan case was jeopardized
by a proposed constitutional amendment to protect the American
flag. Lewis observes that following the second flag-burning case
(UNITED STATES V. EICHMAN), the proposed amendment "got
nowhere in Congress."(243) The facts cast a different
impression. The amendment won passage in the Senate and nearly
won approval in the House. It failed by a vote of 254-177, 34
votes shy of the required two-thirds approval. This is hardly
"going nowhere" since few proposed amendments make it
to this stage.
Lewis then goes on to speculate on the reasons for the failure of
the amendment. Lewis speculates: "Perhaps Americans, or
enough of them, came to agree with Justice Holmes that `we should
be eternally vigilant against attempts to check the expression of
opinions that we loathe and believe to be fraught with
death.'"(243) Again, the evidence casts a different
impression. A front-page story in the New York Times in June 1990
reported that a clear majority of Americans favored the
amendment.(New York Times, 12 June 1990, p.A1) Surely a look to
the public opinion data would have given a different spin to
Lewis's tale along the following lines: While most Americans
favored a limit on free expression in law or in the Constitution,
civil libertarians operating within a pluralist democracy
mobilized sufficient opposition to trump majority will.
Anthony Lewis has a proud record as a civil libertarian. He has
been a staunch defender of free expression, and this readable and
articulate book is a demonstration of his civil libertarian
faith. His position is that free expression trumps most (perhaps
all) order claims that government may assert in an effort to
restrict vigorous debate on public issues. In the conflict
between freedom and order, Lewis defends freedom.
I wish, however, that Lewis had explored the more difficult
dilemma stemming from some feminist legal thinkers like Andrea
Dworkin and Catherine McKinnon. They argue that some forms of
expression deny equality, especially to women. They cast a
freedom-versus-order conflict into a freedom-versus-equality
claim. When faced with this choice, many liberals find either
horn problematic. Lewis leaves us in the dark on this conflict,
though he had an opening in his discussion of the obscenity
issue, which he addresses at various points in his book. While
not central to his thesis, this issue engages many liberals and
conservatives and it would have prefigured the new area of debate
in the free expression domain. But this is to indict Lewis for an
issue he did not raise. Perhaps it will force another examination
of freedom of expression by Lewis or others. For the moment,
however, free expression and the First Amendment remain secure in
Lewis's accomplished hands.
Copyright 1992