"People in the Press are Just as Patriotic" as Everyone Else -- Interview with Anthony Lewis, Part 2

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Adam Eisenberg is a magistrate judge in Seattle, Washington, and a freelance writer. He teaches a graduate level law class at the University of Washington, has written extensively on social issues such as domestic violence and the homeless mentally ill, and is the author of the book "A Different Shade of Blue: How Women Changed the Face of Police Work." Part one of this interview ran last week.

For more than fifty years, Anthony Lewis has been a keen observer of the United States Supreme Court, the First Amendment, and the critical role the press plays as watchdog for our government.

The winner of two Pulitzer Prizes, Mr. Lewis was "politely fired" from his first job as a local news desk editor for the New York Times. He bounced back quickly as a reporter for the Washington Daily News, and his reporting on abuses in the federal loyalty-security program in the McCarthy era earned him his first Pulitzer.

The New York Times promptly re-hired Mr. Lewis. The paper sent him to Harvard Law School on a one-year Nieman Fellowship, and then returned him to Washington, D.C., where he effectively invented modern Supreme Court reportage. Among the many landmark cases he covered was Gideon v. Wainwright; the decision that established state courts must provide lawyers for all indigent criminal defendants. He chronicled the case in his book, Gideon’s Trumpet.

Mr. Lewis served as a regular columnist for the Times op-ed page from 1969-2001, has taught law at Columbia University and Harvard Law School, and has written additional books including Make No Law: The Sullivan Case and the First Amendment, and Freedom for the Thought That We Hate: A Biography of the First Amendment.

Now 85, Mr. Lewis recently sat down at his home in Cambridge, Massachusetts, to discuss current affairs with me over the phone.

When I read your book Freedom for the Thought That We Hate I was struck by the fact that virtually all of the groundbreaking First Amendment cases were 5-4 decisions.  

That’s true. It was true of the very first one, Near v. Minnesota (1931) [holding prior restraint of a newspaper is unconstitutional].

Even something as obvious in my mind as Cohen v. California (1971), the case where a man was arrested inside a Los Angeles courthouse for wearing a jacket that said “Fuck the Draft,” was 5-4 in favor of free speech.

Indeed it was.

Also Texas v. Johnson (1989), the case that held flag burning was protected by the First Amendment, was decided 5-4.  When you consider Bush v. Gore, Citizens United and the Second Amendment gun cases we’ve discussed were also 5-4 decisions, it seems like our civil liberties repeatedly hang on just one vote.

(Laughs) Well, welcome the American Constitution. That’s the way it works.  And, of course, it’s very annoying and very disturbing to the people who lose on the 4 side of the case, and lose when they think it’s terribly important that they win.

But there is one difference, and it’s worth pointing out.  In the old days, most Supreme Court justices who were on the minority side in one of those cases, quickly accepted the majority view and voted that way in future cases as a matter of principle.  The court has decided it, and that’s it.  For example, after Near v. Minnesota in 1931, a 5-4 decision, the Court had later decisions, not much later but in the near future, in which all the dissenters in Near just went along with results favoring the press because they said, “The Court has decided the issue; we’re not going to go on nagging about it.” Now, today, the Court is so divided by ideology that that isn’t even a consideration. I don’t know of any cases in which the dissenters say, “Well, we lost. So we give up.”  They don’t say that anymore.

It’s very interesting that the philosophical divide currently in the Supreme Court reflects the 50-50 split in Congress.

You can go even deeper and say the Court reflects divided public opinion, which is does. 

In the last decade or so, it seems like people feel free to more directly attack judges at all levels of government.

That’s right. Although I want to tell you, there are strains of that throughout our history.  Don’t think that everything started yesterday.  It didn’t.

Indeed, didn’t Thomas Jefferson respond negatively to Marbury v. Madison (1803), the first case in which the Supreme Court held it had the authority to decide the constitutional issues?

Of course. Jefferson detested the Federalist judges, including his cousin, Chief Justice Marshall.  He said they were plotting to subvert the republic, or words to that effect. He didn’t like them. They were to him representatives of the Adams’ regime, the Federalist Party, and he did not think they should be doing what they did.

And Abraham Lincoln, FDR and many other presidents have criticized judicial decisions.

There’s nothing wrong with criticizing judicial decisions.  In this country you can criticize judicial decisions; in some others you can’t, and I think that’s not a good idea. Criticizing judges and their decisions can be contempt of court today in Britain and certainly you wouldn’t dare do it in Singapore – you’ll be in the lockup the next hour.  And people thought it was the rule in the United States until the case of Bridges v. California (1941) when the majority of the Supreme Court, to the distress of Justice Frankfurter said, “No, the First Amendment protects criticism of courts.”   Courts, like other institutions, should be open to criticism.

Before Bush v. Gore got to the U.S. Supreme Court, James Baker was in Florida on behalf of the Bush campaign. He issued some shocking statements attacking not just the ruling of the Florida Supreme Court but also the integrity of the justices themselves.

I thought it was very poor behavior by Jim Baker.  He knows better than that, and he sacrificed his professional, I don’t know, professional standing, professional reputation, in order to be a killer for his employer, George W. Bush.   And I think it was a shame because I think very well of Jim Baker. He was an outstanding public servant. He just went crazy on that occasion. It wasn’t just that he said things.  He organized crowds to threaten the people doing the recounting. He really was unpleasant.

Recently Newt Gingrich said that, if elected president, he would ignore Supreme Court decisions he didn’t agree with, and would subpoena the Supreme Court Justices to appear before the Senate to explain their rulings. What do you make of his comments?

Braggadocio is too kind a word to apply to Newt Gingrich.  His destructive, ridiculous foolishness, reaches, what shall I say, the highest level of pomposity.    Well, let me put it this way, if you had a great issue facing the future of the country like racial segregation, shall we say, or the reach of the Federal government’s power to regulate interstate commerce, would you rather have a court decide that or Newt Gingrich?  I vote for the court.

One of the most popular ways to criticize a judge these days is to say he or she is an “activist judge.”  What does that even mean?

That just means it’s a judge you don’t like. It can’t possibly mean anything else.

If we were going to have a decision on what was the most activist decision of the Supreme Court in American history, what case would you apply that wonderful designation to? I don’t have any hesitation: Bush v. Gore.  I’ll tell you, I don’t think there was any jurisdiction in the Supreme Court to hear and decide that case. It was a lawless enterprise.

Is the concept of “activist judges” a recent creation, or has it been used down through the ages?

It was invented by Justice Robert H. Jackson, a Roosevelt appointee.  I can’t remember where.  It was in a dissent or maybe in something he wrote outside the Court, in which he condemned activist judges.  I’m sorry he did it because it’s become so distorted. 

How would you rate the current court?

I wouldn’t want to do that I think because I’m not close enough to it anymore.  I don’t see the court from day to day, and I don’t sit there listening to arguments and listening to the judges. We all have favorites among the justices, and anyone who writes about the court and is a sort of court fan has favorites, and I would be happy to tell you who mine are over history.  How the current court stacks up I don’t know. 

When I think back to the people who were on the Supreme Court when I covered it, Hugo Black and Frankfurter and Jackson and Harlan, they were really giants in my opinion. They were really trying to do what they were supposed to do in I think a non-political.  They were learned and, well, I won’t go through my spiel, but I really had that feeling about them.

And I can’t say I feel that way now on the whole.  Chief Justice Roberts came in there with an agenda of things to accomplish, but, you know, whether right, wrong, good, bad or indifferent, he was going to get rid of certain things, and he’s gone right through a long list of things that he wanted to accomplish.

Would you describe him as activist? 

Activist? Oh, of course, he’s activist. I repeat, if that means anything. That is to say, it’s activist to make up a list of cases that should be decided a certain way even before the case is brought. 

Take the Citizens United case.  The Citizens United case that came to the Supreme Court did not raise any issue about the constitutionality of the ban on campaign contributions by corporations.  The issue wasn’t there. And the court heard argument on whatever the issue was – some narrow point – and then in June the court put the case down for re-argument saying, “Please argue whether the whole thing is constitutional.”

The Supreme Court decided first what issue it wanted to decide, then it had the parties argue that issue, and then the Court decided it.  That’s not the way courts are supposed to act.

When you say Chief Justice Roberts is activist and has an agenda that has shaped the court for the last decade in a conservative direction, would it be fair to say the same thing about the liberal Warren Court of the 1950s and 60s?  Was it activist?

Let’s drop that word – it really repels me.

I don’t like it either, but it has become such a part of the current public discourse in our country.

I suppose that’s true.

But would it be fair for the Warren Court to viewed as having an agenda of it’s own on the liberal side?  Or is there a difference?

Oh, I think there is a difference, but I can readily see why Conservatives might say, “We’re just getting even.” Or, “You did all of this in the Warren years so we’re going to do what we want.”  But that reduces the Constitution to just something you use when you want to accomplish something, that it has no independent standards or values.   I thought the values that were articulated by the Warren Court in many cases – freedom from racial discrimination, and so on – were American values that I think are important and basic to this country.  I don’t think that about allowing gun ownership or unlimited spending for political purposes by corporations. That doesn’t seem to me to be a fundamental value of the Constitution. But it’s all in the eye of the beholder. Other people obviously feel differently.

Throughout our history, the Supreme Court has been inclined to defer to the President during times of crisis at the expense of constitutionally protected rights.

There are examples in every war. During World War I, the Court sustained legislation which was simply ludicrously overkill against possible sedition. People were put in jail for the most trivial things – for speaking German.  I’m not exaggerating.  It was so awful. 

And during World War II, the Court upheld the order issued by President Roosevelt to intern Americans of Japanese decent in the Korematsu v. United States (1944) decision.

Yes.  And Korematsu was sort of sui generis.  It wasn’t a First Amendment case exactly.  It’s hard to say what was the basis. The issue really was: Is the United States government entitled to punish people solely on the basis of their race or color? That’s what it amounted to. They weren’t punished for what they said. They didn’t say anything. They were picked up because they were of Asian or Japanese extraction.  It was tragic.

Is that tendency to defer during times of crisis based in the Constitution, or are the justices deferring because they, like regular citizens, don’t know all of the national security ramifications?

Yes, I think it has to do with knowledge.  I think it’s primarily, or at least it’s explained as a reluctance on the part of judges to pass on matters that they don’t know anything about.  In the Pentagon Papers case  [New York Times Co. v. United States (1971)], some of the dissenting opinions, particularly Justice Harlan’s dissenting opinion, really said, ‘We can’t know enough about the war in Vietnam to pass judgment on these matters and decide whether the publication would be a threat to national security. We don’t know anything; we just read the newspapers like everybody else.  We have to trust on the President and the executive branch.”  That’s more or less what they said.

In my view that’s always conceding too much, because if you have a situation in which no effective criticism is allowed and there’s no accountability, things will go wrong.  That’s the American principle – we want accountability.

In the Pentagon Papers case the Court did not defer to the President.  Do you think one of the reasons may have been because Richard Nixon was not well liked?

(Laughs) That’s a very tricky question.  My biases from the past are in favor of your suggestion that it had some impact.  But how much I don’t know.  I can’t imagine any judge simply deciding a case because he didn’t like Richard Nixon.  But it tended to weaken – to use a phrase the government always uses – the assumption of regularity of the executive branch.  They always say, “You have to have an assumption of regularity because we, the Executive, can’t do our work if you’re looking under every stone and calling us to account every five minutes.  You have to assume we are being fair and honest.”  And that was a little harder to do with Richard Nixon.

There’s a well-known quote that says, “The first casualty in war is always the truth.” During periods of crisis journalists often find themselves struggling to find and report the truth. How can they question our leaders without getting branded as unpatriotic?

Well, I don’t know how the press avoids it. Because underneath it, most people in the press are just as patriotic and feel as strongly about the United States as the rest of the public does. And if the President of the United States says to you, as he said to one or two newspaper publishers during World War II, “If you publish this story, it’s going to really hurt the war effort.” Would you publish it? I wouldn’t publish under those circumstances.  

The Chicago Tribune went ahead and published a harmful story during the war. They didn’t like Roosevelt very much, and they just paid no attention to his plea. The story essentially disclosed that the United States had broken the Japanese code and was listening to every single thing the Japanese military and navel forces were saying to each other. A pretty big leak, and during a war in which the Navy was really of great significance. But they're the exception: most publications do not make those kinds of disclosures.

Seymour Hersh once said to me -- he’s the great reporter who has disclosed all sorts of things -- that if he somehow learned the code that would make the United States nuclear weapons operable, and it was an important part of his story, he would not write it. He did not think that was an appropriate thing for a journalist to do. You know, we have to have certain self-control.

Do you think the Chicago Tribune made the right decision?

No. Not in those circumstances.

What about the failure by the press to report President Kennedy’s infidelities?

I think that’s generally misunderstood, because the assumption in that question, and in a lot of the criticism of the press in that regard which I have read, is that we knew all about it and just decided not to publish it out of kindness to Kennedy. Not at all -- nobody knew about it. Nobody. I was there. I hadn’t the faintest idea. I was in and out of this and that government office including the White House, and I guess maybe I was a naïve chap. I suppose I was. I didn’t know anything.

What if a journalist had known of President Kennedy’s infidelities? Would it have been wrong to publish it?

No, I don’t think so. The reason I said no so rapidly is because I took it only in the sense that we’d been talking about these issues, which is, is it a matter of national security?  And that isn’t, and if somebody tried to make it a national security issue I would laugh. But even presidents are entitled to some degree of privacy, and I find that a much harder issue to decide. I’m just not enthusiastic about running to every piece of sexual titillation that comes along, and Americans are rather easily titillated. I always worry about privacy, but maybe when you sign up to be president you don’t have any privacy, and more and more it’s turning that way.

What about FDR’s physical limitations? The press did know about those, and kept the public in the dark.

That’s true. I think that was overdoing the respect for privacy. But it just shows you how attitudes change. In those days, people just didn’t write it. They thought it was inappropriate.

Is there something inherently different between 9/11 and the era of the Pentagon Papers when the New York Times and the Washington Post directly challenged the White House?

Yes. First, 9/11 happened very, very fast. Nobody expected it. We weren’t in a war, nothing -- it came out of the blue. And, second, it was an attack on the homeland. That’s a lot worse, in many people’s thinking, than Vietnam, even though Vietnam drained us and killed people, and was a disaster for the social stability of the country. But I think the suddenness and the outrageousness of the attack on 9/11 just made people reluctant to look at the legitimacy of measures taken by the president.

If the press had challenged the president and then there had been another series of attacks, journalists would have been in a very tight spot.

Yes, you’re certainly right. If the press had really criticized Bush’s movement toward the war in Iraq, and during that time there had been another attack, I don’t think any newspaper would have stood up to it. Public opinion would have been so ferocious and so agitated that they would have simply said, “We’re not going to get into this.” Maybe I’m wrong. I hope I’m wrong, but think the pressures would have been very great indeed.

The New York Times eventually issued a very public mea culpa for failing to adequately challenge the Bush administration’s justifications for invading Iraq. Did that apology mean anything?

Yes. I think we were generally rueful about what we had done. Of course, the “we” was certainly not all of the employees of the New York Times, who would have been substantially in favor of hitting harder on the approach to war in Iraq (though that’s only a guess). But the proprietor of the paper and the editors of the paper -- especially the editors -- have to worry all the time, at least in the back of their minds, about getting too far away from public opinion. They’re not looking for a majority vote of the public, but they don’t want to get too far out. That’s my opinion, anyway. And I think that’s wise. You have to be conscious about the circumstances in which you’re writing.

But I don’t think that applied in the run up to the Iraq War. I think serious, hard-hitting journalism, clearly showing the lack of a link to 9/11, as you pointed out, would have been read and would have made a difference.

In recent years, the public discourse in our country has gotten obnoxious, even vulgar. Is there any way to turn back the clock to find a more civil level of discussion?

I’ll give you a provocative thought. The case that I wrote a book about, and that I’ve always thought was the most fascinating case on the First Amendment in modern times, was New York Times v. Sullivan (1964). In that case the Supreme Court held that if you were a public official you could not win a libel case against a newspaper simply by showing that it had published something false. You had also to show that the falsity had been published deliberately or with “reckless disregard for the truth.” And I rested quite happily in that, thinking it was very important to protect newspapers even when they make mistakes because that’s the nature of journalism, you can’t be perfect in the rush of putting out a newspaper.  

It’s so easy to make innocent mistakes in journalism. You have twenty minutes to write a story. Or the Twin Towers have been attacked and you have no idea really what’s happened yet, and you’ve got to fill up a newspaper in eight hours. It’s inevitable, and Brennan’s theory was that you have to stop punishment for innocent mistakes. I think that’s fair enough. I think it’s different when it’s a deliberate mistake. So I really agree with what Sullivan held, which was quite different from the old rule: if you made a mistake, you paid for it, whether it was innocent or not.

But a law professor said to me the other day, “You know, I think New York Times v. Sullivan was the beginning, the thing that opened the flood gates to vulgar, intemperate, lying comments on television and radio.” And I think he might have a point.

Because basically you can say anything and get away with it?

That’s right. Basically, you can say anything. The people who are on television and say these completely ludicrous things about some other people, which are known falsities, they don’t worry about it because of New York Times v. Sullivan. And we’ve lost the focus on the truth. It used to be before you published something in a reputable newspaper, you’d really worry about whether it was true. You’d check it out. But now, if it’s a rush, if somebody else has said something, well, the hell with it -- you just publish it. And I regret that, to an extent.        

Yet, at the same time, Americans as a whole don’t seem to celebrate the Bill of Rights. For example, based on our history, we should be proud of the fact that we have separation of church and state, yet the battle continues over whether prayer should be allowed in public schools. It seems like we Americans don’t celebrate our inherent civil rights.

Maybe that’s why they were put in the Constitution in the first place. I say that only partly as a joke. Maybe, you could say to yourself, the reason that certain rights are separated out for protection is because the authors of the Constitution were not confident that the public, if asked, would support them.

That’s very clear from the early writings about bills of rights, at the state level. Virginia was one of the first. And when the Constitution was framed in Philadelphia, Jefferson, the former governor of Virginia, was in Paris. He took no part in the origin of the Constitution. But Madison sent him a copy, and he wrote to Madison that it would be better if they gave the courts the power to review -- explicitly make these things reviewable by courts -- because the public might not protect them.  

There were really two views of bills of rights. One was that they were merely admonitory -- if you put a bill of rights in a constitution, it was just supposed to be a list of nice things we’d like to protect, but with no intention to make them legal, genuine issues for lawsuits. A lot of people thought, “Oh, well it’s a nice list, but nobody has the right to go to court to enforcement.”

And the other view was that yes, rights are rights. In Massachusetts, after the state constitution was drawn up in 1780, one of the very first legal actions involved slavery. A slave who had been mistreated by his purchaser brought an action against his purchaser, and the Massachusetts Supreme Judicial Court said, “We don’t know what the issue was before, but now we have a constitution that says there’s freedom for everyone. So that’s the rule, no more slaves in Massachusetts." They treated it as a regular legal issue -- nothing admonitory about it, but an actual decision. 

That’s amazing ...  that the founders had the foresight to recognize ordinary citizens might not uphold the rights if they weren’t specifically written into the Constitution.

I remember long ago -- it must have been forty or fifty years ago -- somebody did a so-called poll -- who knows how accurate it really was. Anyway, they asked people to comment on various parts of the Constitution. They didn’t say what they were quoting, but they would quote something about freedom of speech or search and seizure, or whatever it was, and asked: “How would you feel about that? Should we have that rule in the United States?” And the majority said, “No, we don’t want that rule.“ (Laughs)

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