Anthony Lewis, author of the new book "Make No Law: The Sullivan Case and the First Amendment," why this kind of a book at this time?
It's a book that celebrates our right of free speech, and I think an honest answer in terms of myself is that after a lot of years of dealing with issues of law and democracy, I came to realize rather belatedly how fundamental our right to criticize and disagree with our politicians is -- how it makes all the difference in the nature of this country and, for that matter, we see it now in the Soviet Union where the existence of free speech for the first time under Gorbachev really made the resistance to the coup possible.
: Is there any other country in the world that is as free as this country is to speak?
I don't think so. I think certain kinds of speech -- the raucous, uninhibited American habits of razzing our politicians and our public figures -- you know, the right to have fun with Jerry Falwell, which the Supreme Court said was protected by the First Amendment; hate speech, "freedom for the thought that we hate," Justice Holmes said -- is more deeply rooted in our culture and our law than in any other country I know of.
: Who was Sullivan?
Sullivan was a city commissioner of Montgomery, Alabama, in the '60s who sued the New York Times and some others after we carried an advertisement for Dr. Martin Luther King and the civil rights movement in 1960. He said that though he wasn't named in the ad, it reflected on him. There's the ad.
: You decided to publish this ad in your book.
Yes. I'll give credit to the Random House production people who did a very nice job of fitting it in.
: When did this ad run and where did it run?
It ran a full page in the New York Times on March 29, 1960. I ought to say a word about that, I think. We forget, or some of us are too young to remember, what it was like in the American South in 1960. You didn't have Southern Senators like Sam Nunn introducing black figures favorably. You had a situation in which blacks in the Deep South could not vote, that even trying to register and vote in Mississippi was to risk your life. People were lynched for trying to run voter campaigns to get the right to register. And strict segregation imposed by the state, not only in schools in all the Deep Southern states, but on buses, in restaurants, in hotels. It was a very different country then, and it was Dr. King's protest, his attempt to change that system that led to this ad.
: At the bottom of the ad it says, "The Committee to Defend Martin Luther King and the Struggle for Freedom in the South," and then it gives a bunch of names: A. Phillip Randolph, Chairman, and then it has Harry Belafonte who is, I believe, listed here along with Sidney Poitier as treasurer. Nat King Cole is on this list. In other words, these were famous entertainers. What were they doing signing this list?
Not just the entertainers, but Eleanor Roosevelt, Jackie Robinson. They were believers in the civil rights movement who were rallied to this ad, I suppose. I mean, we didn't place the ad. We just took their money and printed the ad. But the usual thing. You want to get some famous names to support your cause.
: Where were you in 1960?
I was covering the Supreme Court of the United States for the New York Times. I was a reporter at the court.
: Do you happen to remember when this ad was taken out? Did you see it that day?
I did, but it didn't really come to my attention. I mean it didn't -- what shall I say? -- grip my mind until the lawsuit began. It was a lawsuit that was very intimidating to the New York Times. Mr. Sullivan asked for $500,000 in damages, and an all-white jury awarded him every penny of the $500,000. I repeat, although his name wasn't mentioned in the ad. Others sued over the ad, including the governor of Alabama and the total sum demanded, $3 million, and it was quite clear that if it were up to the Alabama juries, the paper would be $3 million in the hole. The New York Times could not afford that kind of money then. It was a barely profitable newspaper.
: I want to talk more about the actual ad and the case itself, and there's no mystery to this; jump to the conclusion. The New York Times vs. Sullivan case resulted in what?
Yes, in the end in very dramatic circumstances -- at least I think so -- the Supreme Court reversed that $500,000 judgment and really said with James Madison -- we can come back to that -- that in this country you have the right to criticize political figures in an ad. Whether they call it libel, whatever they call it, you have a very fundamental right to criticize politicians. By then, many other newspapers, magazines and broadcasters were out from under this threat.
: From the day the ad ran until the case was decided by the Supreme Court, how long did it take?
Just short of four years.
: At the time was this whole issue visible? Did you write a lot about it? Did the newspapers focus on it?
I was covering the Supreme Court. I wrote quite a lot about it in terms of Supreme Court coverage. Long stories. There were some other defendants. Sullivan and the others sued not only the Times but some black ministers from Alabama whose names were used in the ad. When we and they appealed to the Supreme Court, I wrote long stories -- when the court agreed to hear the case, when the case was argued and when it was decided and then afterwards sort of think pieces. I wrote a lot about it.
: I guess the reason I ask that is, at the time did people realize how important a case this was going to be?
I think the honest answer to that is no. They understood that it was important for the civil rights movement. They understood it was important for the New York Times. I don't think the case -- in fact, I know the case -- was not seen then as the sort of fundamental building block of free speech for everybody in this country which it is now. It's now universally recognized by commentators, law professors and so on as one of the great free speech cases ever.
: When you jump to the back of your book, you published what you say was the first draft of William Brennan's decision. It was the decision that he wrote. Why the first draft? Then you have other things back there in the back, too.
I had obtained, with his permission, from the manuscript division of the Library of Congress all of his written materials on the case, which included eight drafts of his opinion. It went through eight drafts. In fact, there was even some tinkering with the eighth draft at the last minute, so you could say nine drafts. That gives you an insight, I think. It gave me a very interesting insight, that I hope I've reproduced, into the process of decision-making at the court because each of those drafts was circulated to the other members of the court, got comments. Of course, Justice Brennan's object was both to write for history and to get a majority of votes on his side. That's the game. You've got to get a majority if you hope to make an impression.
: In the end, what was the final vote of the court?
After much difficulty, which we could go into, I hope, six members of the court joined in Justice Brennan's opinion and three others took a more all-out absolutist view of the First Amendment. They were Justices Black, Douglas and Goldberg.
: I wrote them all down in case you couldn't remember it -- I'm sure you can -- but it should be helpful, I think, to the audience to know who the nine members of the court were. Do you want me to run them off here?
: William Brennan, the chief justice was Earl Warren, Hugo Black, Arthur Goldberg, Byron White, William Douglas, John Harlan, Tom Clark and Potter Stewart. What kind of a court was that?
I think it is fair to say it may have been the Supreme Court that in our entire history was the most devoted to individual liberty. It had the strongest impulse to read the Constitution for individual rights. I think one way of showing that would be to say that Justice Harlan at that time was regarded as the most important -- I hate to use these words because they're so misleading -- but conservative voice on the Supreme Court. On today's court Justice Harlan would be a centrist because the court has moved so far to the right in recent years that he would be in the middle.
: You write a column for the New York Times. How many times a week?
: What else do you do? Do you still teach?
Do I have to do something else?
: No, but I know you taught.
My wife is a hard-working lawyer and she regards being a columnist as a sort of semi-retired luxury, but two ideas a week is about the limit of human ingenuity, at least in my case. Anyway, what else do I do? For 15 years I taught a course on the press and the Constitution at the Harvard Law School. I still teach once a week at the Columbia Journalism School. In fact, a law professor and I jointly teach at the law school for all the journalism students. I lecture a lot at universities around the country.
: How long were you the New York Times Supreme Court reporter?
For seven years.
: Are you a lawyer?
I'm not a lawyer.
: How much legal education did you have at that time?
I had spent a year as a Neiman fellow at Harvard and I was, in fact, a graduate of Harvard College. A Neiman fellow is a journalist chosen to go back to college to spend a year at Harvard. I had no desire to go back and do the same thing I'd done as an undergraduate. I went there -- I got the fellowship; was fortunate enough to get it -- for the purpose of learning how to cover the Supreme Court. It was before I covered it. I spent that year entirely at the Harvard Law School. I don't mean to jest about it, but essentially I played law student. I took courses from all three years that I thought would be relevant to the work of the Supreme Court. I did the work, I went to class, I took the exams. I played law student, and I found it very, very interesting. I don't know whether you wanted me to be so personal, but, indeed, I was tempted to go on and to be a lawyer, but I really like journalism so I stayed.
: Where did you grow up?
New York City.
: How did you get into Harvard?
Are we getting personal now? My father went to Harvard. Maybe that helped.
: Did you always grow up thinking someday I'm going to do the same thing that my dad did? Is that why you went to Harvard?
Oh, no. No, no. My father came from a typical middle class business family. It was a family of 11. He and three of his brothers were in the cotton textile business together, and journalism was regarded as pretty eccentric, I can tell you.
: When did you get your first interest in journalism?
In high school. I was a high school newspaper editor, and then college.
: If you grow up in New York, was the New York Times the ultimate?
: If somebody watching this has never read the New York Times -- they hear us talk about it on this network all of the time -- what's so special about that newspaper?
To me the great thing about it is the willingness to pour resources and talent into covering the most important events facing the country. Let me give you a recent example, not just because it's not back in my day as a reporter but because I think it's such a wonderful example. When the coup took place in the Soviet Union and then the counter-coup -- the affirmation of public feeling that we're all so happy about -- the New York Times had some very talented people there. It had a Pulitzer Prize-winning Moscow correspondent who was on leave but happened to be in the Soviet Union. He was on leave writing a book about the Soviet Union.
He was there so, of course, he immediately pitched in. Wives, other correspondents poured in until in the end we had eight or 10 very talented people writing, I thought, the most fascinating stuff every day. Then we ran pages of text -- the text of the debates in the Supreme Soviet, the various texts of the decrees issued by the short-lived coup committee, and so on, so that it's kind of living history. I think that's the New York Times at its best.
: Why can the New York Times do that and almost no other paper in the country do it? Some others do publish texts but not to the extent the Times does.
Well, it's a tradition. Of course, it costs money. We live in a society in which, as I guess the world has found out, there's no such thing as a free lunch. You pay your way. Newspapers can do good work if they can earn a living, and the New York Times has happily under its present publisher become a financially stable institution that can afford to do those things.
: When you got out of Harvard did you go right to the New York Times?
Originally, you mean, from college?
I did, but if the implication was that it's been a sort of steady, happy success story, not so. I worked there four years, and I was a terrible failure. I was fired. I left, I came here to Washington and worked for three years for a paper that I have very fond memories of. It no longer exists, the Washington Daily News, an afternoon tabloid paper, where I was a general assignment reporter, writing on things I had never done in my rather rarified job at the New York Times -- human misery and trouble and pain -- as a street reporter. Then I got rehired by the New York Times, and I've been there since, a very long time -- 36 years. Forever.
: What do you consider the charge to you by the paper or the syndicate? Is your column syndicated across the country through the New York Times?
: Every week when you write a column, what's the mission?
Well, I have to tell you that, probably surprisingly, nobody tells you that mission. When I started doing this in 1969, nobody said to me what I was to do. They said, "Your first column will be on such-and-such a date. Please file." I wrote a letter to my colleague Russell Baker who had already started to write a column -- it's, of course, a very different column from what I do; it's an enormously talented column of wit and learning -- and I said, "Help! How do you write a column?" His reply to me was, "The one thing you have to do is to know that it's you that's on the line. You can't hide behind informed sources or received opinion or something like that. You have to say what you think." I took that seriously, and that, I think, is the essential charge, at least on our paper. All columns are different. Some columns are scoop columns, like Jack Anderson. Drew Pearson was. But what I write, and I think several of the other columnists at the Times write, is a column of opinion. We hope it's informed opinion, but it's personal. It has to be you.
: You spend most of the time on what kind of a subject?
I write on different subjects, but I have certain themes. I write quite often about foreign affairs, but usually in certain areas of the world that I'm familiar with -- the Soviet Union. When I say foreign affairs, that is influenced by my interest in human rights, and, hence, I would write about, shall we say, communist cruelties in Czechoslovakia or Rumania or the Soviet Union. I wrote a lot about that victims of tyranny, whether in the Soviet Union or South Africa or wherever. I've written a lot about southern Africa -- I have an interest in that -- and the Middle East. Those are sort of my main areas abroad, and then I write a lot about the law in this country.
: Back to this book, "Make No Law," when did you first think that there was a need for a book?
I really began writing the book after an operation. I can time it. I climbed out of that operation in February 1990. I would say during the previous six months the idea began to take shape in my mind. It's not the natural rhythm of journalists to write books. Some do, but, you see, the rhythm is so different. Even if you're a twice-a-week columnist, you're essentially a daily journalist writing 800 words. Small thoughts, short attention span. A book is a structure. It's long thoughts and long attention span. The whole subject has been my interest for years. I taught it at the Harvard Law School for 15 years, but all during that time I really changed my view and understood it, I hope, more deeply -- understood the historical origins of these ideas of freedom which a lot of the book is about. I'd say during that six-month period the compulsion to write the book, which it had to be, took shape. It had to be a pretty heavy compulsion to get me off my rear end into writing a book.
: You live in Boston.
: Now, when you headed out to write this you say you changed your views on this. Did you change your views on the First Amendment or on New York Times vs. Sullivan?
No, not on the Sullivan case -- on how the First Amendment got where it is and what it meant. You see, this is the whole book, so I can't give it in a sentence. We tend to assume that the First Amendment is there, and this particular aspect of it -- it has other aspects -- is "Congress shall make no law abridging the freedom of speech or of the press." Nice, clear-ringing things, and ever since that was written into the American Constitution 200 years ago, December 1791, ever since then we've been free.
But it's not like that. Not at all. That's what gradually got a hold of my consciousness because it really wasn't until very recently that the courts, and the Supreme Court particularly, gave concrete meaning to those words and really put back into the First Amendment what James Madison, its principal author, thought was there. For most of its history the amendment was not enforced, and no person who made a claim of a right to free speech under the First Amendment really won a case in the Supreme Court until, I'd say, 1930. That's pretty late.
: A couple of weeks ago at the other end of this studio, Cathy Black, who is the chief executive officer of the American Newspaper Publishers Association, was here on a call-in show. I know you've done our call-in show before so you know what it's like. A caller out of nowhere said, "Miss Black, how do you respond to the fact that ever since New York Times vs. Sullivan was decided by the Supreme Court" -- I'm paraphrasing this -- "I don't believe anything I ever read anymore in a newspaper." The conclusion, basically, was that that's the worst thing that ever happened in this country. That was the caller's opinion. They get the chance to say anything they want. What would your response be to that caller?
I don't agree with that. First of all, let me emphasize, then we can come back to this, that this is not a case about newspapers. This is a case that's about the right of every citizen to voice disagreement with politicians. Justice Brennan's phrase, "the citizen critic of government," that's what he focused on, not newspapers or broadcasters. But it's had a big effect for the press, no doubt freeing us. I would say that there's always a chance that a rotten press, an busive press will misuse freedom. The press is not always the good guy. I've never believed it always is. We have bad apples like other professions. But, in fact, I don't think that's happened.
I think if you want to take a case in point, New York Times against Sullivan freed us psychologically as well as legally to do the Pentagon Papers case, to challenge the government's policy on Vietnam -- not challenge it editorially but to get the facts. That's what the Pentagon Papers was about -- not that we disagreed with the policy, but let's let the public, who are the sovereigns of this country in the constitutional theory, find out how we got into Vietnam. That's what the Pentagon Papers were about. Or Watergate. Let's not take for granted when the president of the United States says, "Oh, it's just a third-rate burglary," let's not just accept that. Let's get the facts. Now, I think Times vs. Sullivan emboldened the press to get the facts.
: Let's go back, again, to the beginning of all of this. The ad was taken out in March of 1960.
: Published in the New York Times. One day only?
: How much did it cost them?
Just under $5,000.
: The suit was brought how soon after that?
Oh, quite soon. I'd have to look in the book, but April or May. Very soon.
: And then what happened?
Again, it went quite quickly. The judge who handled the case in the circuit court of Montgomery, Alabama, was quite an extraordinary character named Walter Jones. Judge Jones was a deep believer in the Confederacy with strong views on racial matters, who, on the anniversary of the Confederacy, seated the jurors in his courtroom in Confederate military uniforms. So he hustled the case through and rejected all the New York Times' arguments and put the case to the jury on Alabama law of libel, which you have to understand.
The Alabama law of libel was if there are any mistakes in a statement, however trivial, the defendant -- the publisher -- loses the defense of truth. And there were mistakes in this advertisement. For example, it said that Dr. King had been arrested seven times, and he'd only been arrested four times. I remind you that Mr. Sullivan's name is not mentioned in the ad. But the judge charged the jury that the jury could find that the ad referred to Sullivan even though he wasn't mentioned. The jury so found, and it had the power to set the damages and it awarded all the damages he asked for -- a half a million dollars. That all happened rather fast. By the end of the year 1960 that all had happened.
: That was in what court again?
The circuit court of Montgomery, Alabama -- a state court.
: Then the appeal came?
It went to the Supreme Court of Alabama.
: What happened there?
Oh, it was affirmed. The Supreme Court of Alabama upheld the logic of the case, of the judge's decision, and indeed broadened it out and made it, I think, from the point of view of the right of public criticism, even more dangerous because what it said was whenever a newspaper or a citizen makes reference to a governmental action, a department of government -- the ad used the word police at one point, and the Supreme Court of Alabama said this ad was critical of the police. Just generally, the police. It didn't focus on a particular police force or the Southern police, although it did focus at one point on Montgomery, Alabama But if it uses the word police, then any official who has to do with the police can take that as a criticism of him and he can sue for libel. Now, that in effect is to say that there is such a thing as libel on government, that government as such can be immune from criticism, which exists in some other societies. But to say that it exists in the United States would be to change our culture, shall I put it that way.
: So after the Alabama State Supreme Court upheld this decision, what happened then?
There was only one recourse left, and that was to ask the Supreme Court of the United States to review this. It only has the power to review such a decision if there is a federal constitutional issue. The Supreme Court has no power to say, "We don't like that state court decision. We're going to reverse it." It only has jurisdiction under the Constitution and laws if there's a federal constitutional question. What made it a hard case for us -- very hard, people thought then -- was that libel had until then always been considered outside the First Amendment, just as a matter of tradition. No libel suit had even been held to violate the First Amendment. After the jury verdict, the lawyer who then represented the Times wrote a piece for our house organ, the magazine for employees of the New York Times, Times Talk, about what we would do on appeal to try to reverse this judgment, and he didn't mention the First Amendment.
: What does libel mean?
Libel is a very old form of action at law, coming down from English common law, which means a damaging statement about somebody.
: What's the difference between libel and slander?
Slander is oral and libel is written. It's printed, or now broadcast. If I simply in a conversation say something mean and untruthful about you that's slander. But the difference has eroded over time, and it doesn't have a lot of difference now.
: Before we get to the Supreme Court itself, when you went back to get ready to write this book, did you find new information that you hadn't seen before?
Oh, I found out some things about Judge Jones, and I talked with the lawyers -- those who are still living, and most of them were; not all, but most of them were -- on both sides of the case. Oh, sure.
: What important figures in this case are still living?
The lawyer for the New York Times, the principal lawyer who represented us in the Supreme Court Professor Herbert Weschler of the Columbia Law School. M. Roland Nachman Jr. of Montgomery who represented Mr. Sullivan, a very fine lawyer.
: Is Mr. Sullivan alive?
No. He died rather shortly after this case was decided, as did Judge Jones. They are gone. One of Herbert Weschler's assistants on the case who later became a federal judge himself, Marvin Frankel, is still alive. Very much so.
: Would William Brennan talk to you about this, the former justice of the Supreme Court?
Yes, he did, but I will tell you that we didn't have much oral discussion. I learned so much from his documents, more than I think any judge could be expected to remember. I talked to one of his law clerks from that year because, as the book says, Justice Brennan has made it a practice to have his law clerks -- I should put it in the past tense -- each term keep a record of what happens in each case in which he takes a leading part as the author of the court's opinion, for example, or a dissenting opinion. One of the two law clerks that term did such a description of the sequence of events inside the court in this case and Justice Brennan gave me that document. They are, of course, private, but he just gave it to me, and that was very, very important. To me, one of the most interesting things is what happened inside the court, and I had a good deal of material on that.
: Mr. Weschler, the attorney for the New York Times, when was he asked to come into this case?
He was asked to come into the case shortly before the case was put to the Alabama Supreme Court. He began, then, to shape an argument which, as I say, was novel for its time, that the First Amendment had something to do with this libel suit. It was fortunate that the question was raised. It had to be raised under the rules of the Supreme Court of the United States. Unless you raise it in the lower court, it's an afterthought. You can't raise it in the United States Supreme Court. The Alabama Supreme Court rejected that argument on the First Amendment in one sentence which said libel has nothing to do with the First Amendment. That was a correct statement of the law at the time.
: Do you have any idea how much both sides paid in legal costs to make their arguments all the way through the Supreme Court?
I really don't, but I think it was rather a modest sum by today's standards. It wasn't one of these colossal sums. Herbert Weschler was a professor who did this. It happened that he was on sabbatical leave, fortunately, for a good part of the time it took for him to write his very, very scholarly brief, a brief which had a great impact on Justice Brennan's opinion. But it wasn't one of huge Wall Street fees.
I can give you a footnote. It's not in direct response but it's just a funny point. Roland Nachman, I mentioned, was Commissioner Sullivan's lawyer. Sullivan was, of course, the plaintiff, the man who sued in this libel case. It happens that Mr. Nachman then and ever since has represented the Montgomery newspapers in libel cases where, of course, he represents the defendant, not the plaintiff. When he represented this plaintiff, he went to the newspapers and said, "Gentlemen, do you mind if I represent a libel plaintiff?" They said, "No, it's fine. Go ahead." And, as he says -- it's his joke so I should give him credit -- "They tell me it's the best thing I ever did for them, losing this case."
: After the Alabama Supreme Court finished with this case, how long was there between that point and when they petitioned the Supreme Court and got certiorari?
You are allowed -- you were then; I'm not sure of the rules today -- I think, 90 days to petition. Then the court, of course, in the bosom of time, whenever it wants to do it, will decide whether to grant it or not. The court did grant it five or six months after the Alabama decision, but time was passing. Because the court agreed to hear the case in January of 1963 -- I think it was January -- by then its argument schedule for that spring was all full, so it put off the whole case for another year. The briefs were not filed until the fall of '63, and it was argued in January of '64; that is, orally argued by the two lawyers before the court -- in fact, more than two -- and decided in March.
: Were you in the courtroom when this case was argued?
: Do you remember it?
I do. I wrote about it, and I've read my story since. I have to tell you with a certain chagrin, I have recently read my story not on the argument but on the decision of the case. I really didn't understand it so well. When I look at the story now, I'm rather embarrassed because, you know, it had the result right -- the New York Times won and Mr. Sullivan lost -- but the reasoning and the importance of that reasoning really eluded me.
: What do you remember about the day? What do you remember about the atmosphere in the court?
I don't have a memory of that. I have a memory of some other occasions in the Supreme Court, like when it decided the reapportionment decisions, holding that every legislature in the country had to have districts based on equal population. I remember that very well. This one I don't recall, although I think I probably telephoned Professor Weschler's office to tell him the result. He tells a story which I use in the book that he found out as follows: He was teaching a class at Columbia Law School. His secretary came in the back of the room, walked down the aisle, he paused, she handed him a piece of paper. The whole class, of course, knew what it had to be about because they knew he had argued this case. They all listened and he just read it out, "Judgment reversed. Court unanimous." Everybody applauded.
: How did you find out the detail that Justice Brennan asked for, I believe, either Mr. Weschler or the other attorney to, "Speak up, I can't hear you."
The arguments of the court, beginning in the modern period -- I don't know exactly when, but maybe in the '50s -- were recorded on tape for the use of the justices alone because sometimes they would not be sure what arguments, the subtle points, the lawyers had made and they would listen again. Then at some period of time they agreed to make those recordings available to the National Archives, and the National Archives has released those. You can get cassette tapes for educational purposes. When I was teaching at the Harvard Law School, I got a several cassettes of this argument which I played for my class. And there it is.
: Did that make a difference in that classroom when they were able to hear that?
Yes. It's a very dramatic argument. I give some of it in the book. A very dramatic argument. The questions were very strong from the court. The court was quite engaged in the case, and the feelings of the justices were evident. More than usually, they gave certain clues in their questions to the way they were thinking about the case. Very often today at least, justices will ask questions just as if they were professors -- you know, for the sake of bringing out the argument and not really disclosing their real views at all. But I think if you read these questions you'll see that they looked forward to some of the things. For example, Justice Byron White asked Professor Weschler, "Are you saying that you would protect deliberate mistakes?" He asked a whole line of questions about whether the Constitution, if it protected libel at all, should protect statements that are deliberately false. The way the case came out was making that distinction. The Constitution protects statements made about political figures, even if you make a mistake, but not if it's deliberately false. If you are intentionally lying, you're not protected.
: Oral argument. You point out that the oral argument used to be an hour on each side and now it's only a half hour on each side. How come it changed?
Oh, maybe today's justices have less patience than yesterday's. In fact, of course, in the 19th century arguments used to go on all day or more than one day. It's a different style. In Britain today still, there's no time limit on arguments in the House of Lords, and arguments go on for days, even weeks. It's a mode of life that our justices can't stomach anymore.
: Had Professor Weschler won this case even before he even got in the courtroom, in the briefs?
I think so. A good question. I think his brief was a very compelling brief. It was a historical brief. Can I say why and go on a bit?
The problem for him in this case, the psychological problem which is very important with the court, was what I have mentioned -- that history was the other way; that there had never been a libel case held to come within the First Amendment. It was this whole long history. You know, the Supreme Court, and judges generally, don't like to do, on the whole, novel things. They don't want to make sudden breaks with history. Now, what he did was to use history himself in a very powerful way. He told the story in that brief of what happened when Congress in 1798 passed a Sedition Act that made it a crime to say false, malicious, unpleasant things about President John Adams and Congress and so on, and it was used by Adams and the Federalist Party, which was then in power, to try to suppress the anti-Federalists, the Jeffersonians -- the followers of Thomas Jefferson, the vice president -- the newspapers.
They prosecuted the editors and the publishers of those newspapers before the presidential election of 1800. Tried to shut up the opposition. There was a very adverse public reaction. Jefferson and company said, "Hey! Look what they're doing. They're trying to turn this country back into a tyranny. George III! They're trying to tell you what you can read and hear." That caught on politically, and Jefferson was, of course, elected. The first thing he did after his election was to pardon all the editors who had been convicted and others. That historical episode was seized on by Professor Weschler and then by Justice Brennan as indicating what the meaning of the First Amendment was -- that in this country we allow criticism of political figures.
: Of Thomas Jefferson and James Madison, which one was more important to us in history?
Oh, I suppose you can hardly say that Thomas Jefferson, who wrote the Declaration of Independence and was this very important president, was second to anyone except maybe Washington. But in terms of the Constitution of the United States, Jefferson was in Paris as the ambassador and the principal figure there. The one who's gone down in the writings is Madison. He gave us the Constitution and the First Amendment -- the principal draftsman of the First Amendment. You know, in a way the solidity of our system of representative government was established on March 3, 1801, when Jefferson peacefully succeeded Adams as president, when we had a political succession of an opposing party without resistance, when Adams just peacefully left office. I mean, that hadn't happened a lot of times in the world before then -- if ever.
: When you talked about the Sedition Act you also brought up John Marshall. As I remember, John Marshall doesn't come out too well in history when it comes to the First Amendment.
John Marshall was a Federalist. He was a candidate for Congress. He ran as a Federalist, and he naturally, inevitably, supported the Sedition Act or defended it. He said the Sedition Act was necessary to defend the government from wicked citizens. That's a quote, "wicked citizens." It's a very sort of English view, today as then, that the government has to be protected from these unruly citizens. If that view had prevailed, we'd be living in a different country.
: When was the last time you got to sit in the Supreme Court and listen to an argument?
Oh, very recently. I used to take my class down every year. I've forgotten what the last argument I heard was, but within the last year or so. Certainly last year. But the one that sticks in my mind, the memorable one, was the argument in Hustler against Falwell, which was about two or three years ago.
: When you think about the comparison with Justices Goldberg and Brennan and Earl Warren and Hugo Black and Potter Stewart that were there then, compared to the Justices Souter and Kennedy and Scalia and Rehnquist -- compare them from talent and point of view. If New York Times vs. Sullivan was brought before this group today, what would they do on their own?
Those are two really big questions, and I'll take your second one first. I think the present court has held quite securely -- not entirely, but really substantially -- to the principles of free speech that Justice Brennan elucidated in New York Times against Sullivan. For example, in the Falwell case which I mentioned, the court unanimously held that the First Amendment protected the right of this vulgar magazine to treat Jerry Falwell to a most vulgar spoofing and did that on the basis of the decision in New York Times against Sullivan. So, I think they'd stick to it. Whether anybody on the present court would have the imagination, the sensitivity, the analytical power that Justice Brennan had to write this kind of really grand opinion, this architectural opinion bringing Madison's vision to light -- it was a very historical opinion -- I'm not so sure.
Now, as to your first, more general question about comparing the two courts, their ideologies, their sense of individual rights is obviously different, but I don't mean to dwell on that. What strikes me, and it may be merely the golden age, the characters then seemed to me to be much more interesting, bigger characters. Felix Frankfurter, who left the court just before this case; John Harlan, very imposing; Hugo Black, an amazing figure, was a prosecutor in Alabama then, a United States Senator for a number of years, was always very proud that he carried the two Republican counties in Alabama. He loved that. You know, someone of life experience. They'd all had very broad life experience -- I think a broader experience than most members of that court today have had.
: Are you different when you speak, like in a conversation like this, than when you sit and write your column -- not your book, but when you write your column? Do you do different things in print than you do verbally?
I suppose we all do. There's a lot more time to be discursive -- I'm pleading guilty to being discursive -- and maybe reflective in an hour's conversation than in an 800-word column. But I try to have opinions. As we said before, that's what they pay me for. So, I don't hold back on something because it may be an unpopular opinion.
: When do you know that you've written a column that matters?
I think it's both a necessary illusion and an inevitable delusion of columnists to think they are affecting the fate of the nation. We write to influence opinion. I suppose that's the game. Then you find that most of the time the powerful don't pay much attention to what you say. But you do it anyhow, and every once in a while something happens. I wrote a column once about Sen. Orrin Hatch of Utah, who had done something. This is a small example, but it pleased me because he was so decent an honorable. The next day I had a phone call from Sen. Hatch, and he said, "Well, I'll tell you the honest truth. That was signed-off on by a member of my staff. I agree with you. It's terrible, and I'm going to undo it right away. Now, Tony, be easy on me. Don't hit me again." I said, "Senator, that's a very generous, wonderful thing to have done. Thank you." It doesn't usually work that directly, which is why I remember that example.
: Have you noticed any change over the years or today in how much people read columns and what they did 15 years ago?
I can't answer that it any statistical way. I think the reaction and the degree of emotion depends very much on the subject matter. By far the most emotion in my now 22 years of writing columns has come on two issues: Vietnam, at the beginning very strong feelings, which is not surprising, and the Middle East. I write often about the Middle East. I haven't lately, but I will again. Over the years I have quite often. I have a view that it would be better for Israel to make peace with the countries around it and with the Palestinians, that that's in Israel's long-term interest. I, therefore, am critical of the present government of Israel with its expansionist policies and so forth. That brings a very harsh criticism on me. Again, it understandably arouses deep emotions.
: Books. You've had another book, "Gideon's Trumpet." What was that about?
Gideon's Trumpet was about the Supreme Court case that established the right of poor people to have lawyers provided for them when they're charged with a crime.
: When did you write it?
It was published in 1964. The decision was 1963.
: Can you still buy it?
You can still buy it. I don't know about the corner bookstore, but it's in paperback and has been in print all these years and remains in print.
: What do people usually buy it for? Do they use it for teaching?
Yes. It's very often given in courses at colleges and universities and even some high schools. Law school.
: I know the book hasn't been out that long, but what's the early reaction to "Make No Law," this book about the New York Times vs. Sullivan case?
I think if I were to have my wish it would be a long-run book like "Gideon's Trumpet" because my purpose in writing it was to express what I think are some -- well, let's be grand -- eternal values about free speech, freedom of the press and the First Amendment. The first reactions, and that's what's in, have been very gratifying to me. We've had nice reviews, and that's what matters.
: Who is outraged by what you think is so important? Is there anybody in our society who comes up to you and says, "Tony Lewis, I just totally disagree with you. New York Times vs. Sullivan is a tragedy."
It hasn't happened yet. The lady who telephoned hasn't called me yet. No. Maybe I'm saying something I shouldn't, but I think freedom of speech is a value so universal. Of course, lots of Americans will disagree about this or that application of it. We all know that if free speech is given to somebody you don't like, you're liable to grind your teeth. When the American Nazis were allowed to march in Skokie, plenty of people thought that was terrible. When the Supreme Court said that the First Amendment protected those who burned the flag in a political protest, there were plenty of people outraged. The practical application of the First Amendment will always have some people disagreeing. I'm inclined to think that more than ever Americans accept the principle that freedom of speech is something that we want even though it causes us pain.
: What kind of knowledge level have you found when you're talking to either the radio audience or call-in shows about New York Times vs. Sullivan?
Oh, I don't think people have any knowledge on the whole about a particular case, this or other cases, and I don't think they should be expected to. No, we're not a country of legal commentators. Really, the purpose in my writing it is to show the human drama on which the Supreme Court actually decides cases. You know, the Supreme Court does not sit there, and it is not constitutionally able to sit there, giving abstract judgments, saying, "Please, Court, tell us what the First Amendment means."
Very early on in its history in a letter to President Washington, the Court said, "We do not give abstract decisions. We only decide concrete, factual cases that are brought to us when people's real interests are at stake. When somebody's been ordered to pay $500,000 that's a concrete interest. We'll decide that." So, to me it's always been true as a person, and I think it's true of others, you understand legal issues in terms of human beings. You don't understand abstractions. When it grinds on some individual, when the person is hurt, then you understand what it means.
: Go back now to the courtroom and the oral argument is over. Both sides had an hour back in 1964. The nine members of the Supreme Court made the decision on how to go on this when, and how did they get to that decision?
The practice then was that on the Friday of each week of arguments, the members of the court at their weekly conference -- it was not every week but most weeks they hold a secret conference -- I mean private. They meet in the room adjoining the chief justice's chambers and they sit around the table. Just the members of the court, never anybody else allowed in. If there's a knock at the door with some urgent message, the most junior justice gets up to answer it. They discuss and vote on all the cases that were argued that week. Well, I would say something about what happened in the Sullivan case, that the members of the court all agreed that the libel judgment, the $500,000 verdict against the Times and the four black ministers, had to be set aside.
But the ground was not at all clear. There was a rather murky ground suggested, in fact, by Justice Brennan. That's the end of the discussion. Then the court's practice is for the chief justice, if he's in the majority, and this was so, to assign the writing of the opinion to himself or one of the other members of the court. He wrote a note to Justice Brennan saying, "Will you please write the opinion in New York Times vs. Sullivan." And that's when the real work begins -- the work of analyzing, deciding the ground of decision and circulating your drafts to the other members of the court to see whether they agree with your analysis of the case, which they may not.
: We get the impression today that there's no discussion in that conference, a back-and-forth argument about whether you're for or against a case. Is that true, in your opinion?
No, it's not completely true. It's not no discussion, but the amount of discussion is limited by the nature of reality. The court at that conference, then and now, discusses -- discussed -- not only each of the cases argued that week, which may be a lot of cases, but each of the cases that is up seeking review. The work load is simply too large to have a sort of open-ended debate. Now, it may be in a case of extraordinary gravity like Brown vs. Board of Education that the court, as it did under Chief Justice Warren because he deemed it wise, will have another conference to discuss that case, solely for that purpose. I think it had more than one other conference on Brown vs. Board of Education. But generally the practice is a quite limited discussion in which each of the nine justices is given an opportunity to speak, and then the real work of analysis goes on in the chambers of the justice assigned to write the opinion, and anyone who disagrees. He circulates his draft, Justice Jones gets the draft and says, "Boy, now that I see the way we're analyzing this case, I think it's all wrong," and he fires back an answer. That's what happens.
: People are going to have to buy your book to get all of the little details because we're about out of time. But that period there where Justice Brennan was trying to get everybody on board, Justice Harlan was the toughest?
Justice Harlan was the most crucial and the most important, I think, from the point of view of the legitimacy, the weight, of the decision. He was the conservative voice, the man that had the respect of New York, Wall Street and that whole position. He differed from Justice Brennan, told him that he had to write a different opinion, would not agree entirely with what Brennan wrote. The case was scheduled to come down on a Monday, and Justice Harlan right through eight drafts of the opinion wouldn't agree. On the Sunday night he telephoned Justice Brennan at home and said, "Bill, I've decided to join your opinion." First thing Monday morning he circulated a note to all the other justices saying, "My dear brethren, I have decided to join Brother Brennan's opinion without reservation." I mean, a remarkable thing.
: Let me ask you, how do you know that?
Because I have a copy of the note. That was one of the things in Justice Brennan's files that I saw.
: How do you know about a telephone conversation?
That was in the law clerk's account of the case.
: Isn't it unusual to know these kind of little details?
Yes, it is, although nowadays, you know, fewer things are secret than used to be, I think. I myself have doubts about disclosure of matters that are currently pending before the court. This was history -- I think illuminating human history -- about the relationships on the court.
: Justice Harlan was the grandson of another justice.
Of the same name, John Marshall Harlan.
: Any other justice have a tough time going along with this decision?
Justice Tom Clark at one point wrote a very harsh -- much harsher than Justice Harlan -- a very, very harsh separate opinion in which he blasted Brennan's view. Now, this is a complete mystery. Justice Brennan went to see him, and Justice Clark, who was a kind man, a very nice man, though he often wrote quite strong dissents, said, "Well, now you know, Bill" -- I'm paraphrasing -- "if you will do such and such to your opinion and put this in, I'll be happy to join it." Justice Brennan said, "Oh, I think that's fine," and that was the end of the argument. All of the great outrage melted away.
: Do you have another book in you?
Not for the moment. I'm a little tired, shall we say. I'm just going to be satisfied with writing columns for a while.
: Is there another case that is as intriguing as New York Times vs. Sullivan for you right now?
Not for me, no.
: What's the best thing somebody can tell you 10 years from now about this book?
That it's lasted and that it's informed the American people about the precious value they have in the First Amendment.
: Anthony Lewis, this is your book, "Make No Law: The Sullivan Case and the First Amendment." Anthony Lewis is a columnist for the New York Times, and we thank you for joining us.
It's been a great pleasure.