This past Friday, the keynote speaker at the Boston Bar Association’s Annual meeting was Adam Liptak, Supreme Court Correspondent for the New York Times. Mr. Liptak focused his remarks on the First Amendment views of his predecessor, journalist Anthony Lewis, the author of Gideon’s Trumpet and in many ways the father of modern legal journalism. Mr. Liptak’s remarks were of particular interest to the Massachusetts audience, who also knew Mr. Lewis as a resident of Cambridge and long-time partner of former Supreme Judicial Court Chief Justice, Margaret Marshall. We summarize some of Mr. Lipak’s remarks here:
Despite his prestige among journalists, Mr. Lewis did not share the views of many of his colleagues when it came to press freedoms. According to Mr. Lewis, the First Amendment’s reference to the “freedom of the press” was not intended to offer special protection a group of businesses or institutions that hold themselves out to be the press. Rather, the First Amendment guaranteed all citizens both “freedom of speech,” i.e., that you can say what you like orally, and also “freedom of the press,” i.e., that you can also use printing press technology to communicate your speech. In other words, the distinction between the protections set forth in the First Amendment doesn’t turn on the identity of the speaker, but the medium through which the speech is communicated.
The upshot of this interpretation is that the First Amendment does not offer special protections for the institutional press. In a 1978 column, Mr. Lewis wrote that “it is a fundamental mistake, I think, that the press argue that it is entitled to different and better treatment under the constitution. The First Amendment also protects the rights of professors, and pamphleteers and ordinary citizens to write and speak freely.”
Mr. Lewis’ opinion that the First Amendment did not give journalists an “exalted status” also guided his views on the “reporter’s privilege,” the idea that reporters have a right to resist subpoenas seeking testimony about the identity of their confidential sources. Mr. Lewis was troubled by the view among some journalists that “the constitution gives us the right to use anonymous sources without being called into account,” and supported the Supreme Court’s rejection of the privilege in Branzburg v. Hayes. That is not to say that reporters should not honor their promises, but Lewis viewed this as a matter of honor and not constitutional law. Mr. Lewis wrote in 1981that “if a few brave journalists go to prison for their promise, it is no disrespect to them to say that the battle is better fought that way in the balance of courtroom interests and public opinion – than under the distorting guise of constitutional privilege for journalists.”
In his last book, Freedom for the Thought that we Hate: A Biography of the First Amendment, Mr. Lewis also set forth a controversial position on the punishment of speech that incites others to violence. Although such punishment is usually constitutionally limited to words that create a likelihood of imminent violence, Mr. Lewis felt that there may be genuinely dangerous speech that did not meet this imminence requirement. He wrote: “I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging. That is imminence enough.”
Mr. Liptak concluded that Mr. Lewis’ view of the First Amendment was iconoclastic, but coherent and powerful. As much as he loved and admired the press, he considered courts to be the bedrock institution of American freedom. “Given the choice between the rule of law and press freedom, Tony generally chose the rule of law.”