What Snowden And “Duck Dynasty” Have In Common

“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.”
—Justice Oliver Wendell Holmes, Jr. dissent, United States v. Schwimmer

When Justice Holmes delivered this dissent in 1929, he wasn’t talking about the recent controversial comments by a “Duck Dynasty” reality star. He wasn’t talking about the Snowden NSA leaks. He wasn’t even talking about protestors flying the Confederate flag outside the White House. But at the same time, he was.

Constitutional protection of free speech is something most Americans take for granted. We can say whatever racist, homophobic, misogynist things we want without repercussion from the government, and some of us take wild advantage of this (Phil Robertson, I’m looking at you).

Where that freedom ends is when our speech presents a “clear and present danger” to others, which is one of many reasons Edward Snowden is considered a traitor for his surveillance disclosures. However we feel personally about what these individuals said, however we may disagree, there is still “freedom for the thought that we hate.”

Yes, I’m comparing the Constitutional rights of a reality TV star and a government whistleblower. And I’ll go a step further—how did you first hear about the “Duck Dynasty” or NSA controversies, respectively? I’m going to bet it was a headline, a news story, or a pundit’s opening monologue. It seems we have a theme here, folks, and that theme is First Amendment rights.

It’s these freedoms of speech and press that Anthony Lewis explored in a book that takes its title from the top quote, “Freedom for the Thought That We Hate: A Biography of the First Amendment.” I know, I know. Anything with the sub-heading “A Biography of the First Amendment” sounds like dusty reading. Lewis’ book is anything but. Lewis draws heavily from landmark court decisions but writes so clearly and succinctly that you’re never lost in a pit of legal prose. He gives you some Justices to root for throughout American history (like Holmes) and leads you all the way up to the post 9/11 era. Seriously, if you want to feel smarter for less than $10, it’s worth a read. And if the author’s name sounds familiar, maybe it’s because of his longtime NYT column, his two Pulitzers for journalism, or his recent sad death in March 2013.

I’m not going to go full book report on you, dear reader, but the most illuminating part of Lewis’ book for me was its emphasis on the evolution of our Constitutional rights. It’s not called a “Biography” for nothing. As Lewis writes in “Freedom,” “…in truth the freedoms of speech and of the press have never been absolutes. The courts and society have repeatedly struggled to accommodate other interests along with those.” Phil Robertson might have successfully sued papers for libel in the time of the Founders. In 1918 (when wartime sedition laws were in effect), it would have been criminal for The Washington Post to publish articles critical or disreputable of the US government, such as the NSA leaks.

But the “freedom for the thought that we hate” isn’t just a lucky strike in the modern era. Something Lewis touches on in his book, and which you can find in both the “Duck Dynasty” controversy and the NSA leaks is important social discussion. Lewis quotes a 2006 issue of The Economist, “The big danger is that, in the name of stopping bigots, one may end up by stopping all criticism.”

In a sense, we can’t have our Snowdens without our Phil Robertsons. But if that’s our First Amendment cross to bear, I’ll take it.

Check out Anthony Lewis’ book at Barnes and Noble. It’s also available on Kindle.

View Comments (3)
  • It’s been said elsewhere, but I think it’s important to state clearly that Phil Robertson’s suspension was not a First Amendment issue. As you correctly state, the First Amendment allows Americans to say whatever they want without fear of repercussion “from the government”. But then you say you’re discussing Robertson’s “Constitutional rights”. Robertson’s suspension did not implicate his Constitutional rights. He has a constitutional right to say whatever bigoted things he wants, but he cannot claim a constitutional right to say them without interference by non-governmental individuals and entities (e.g., A&E). The First Amendment creates a “marketplace of ideas”, in which individuals decide whether or not an opinion is praiseworthy or offensive. The confusion on this issue probably derives from the popular awareness of our civil rights legislation, which prevents companies from firing people because of their race, gender, ability, and, yes, their religion. This means that the courts must delineate between religious beliefs and religiously motivated conduct. According to Professor Kermit Roosevelt of UPenn Law, the Supreme Court has said “you can’t treat people differently because of their beliefs but if those beliefs lead them to engage in certain actions, you can treat them like someone who had engaged in those actions for a nonreligious belief.” http://abcnews.go.com/blogs/headlines/2013/12/phil-robertson-and-ae-fight-not-about-1st-amendment-expert-says. Admittedly, it can be difficult to distinguish between belief and conduct, but I think Robertson would have a difficult time arguing that he was suspended because of his religious beliefs. Even if Robertson could make the case, it would be on the basis of his statutory rights (under the Civil Rights Act) rather than his Constitutional rights.

    • I absolutely agree with you, Alec. Maybe I wasn’t clear in the article: Robertson’s suspension from A&E wasn’t a violation of his Constitutional freedoms; it was his failure to represent the network well, as his contract undoubtedly requires. Actually, I never addressed his suspension in the article, only his comments themselves. His ability — and right — to say inflammatory or unpopular things is what I was trying to get at here.

  • I would recommend “Free Speech On Trial: Communication Perspectives On Landmark Supreme Court Cases” because it features a wide variety of contributors discussing the complexities of the issue of free speech within the marketplace of ideas.

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