1/12/08 7:34 PM Online NewsHour: Conversation | Gore Book Criticizes President | May 30, 2007 | PBS Page 1 of 4 http://www.pbs.org/newshour/bb/entertainment/jan-june07/gore_05-30.html REGION: North America TOPIC: Arts & Entertainment Online NewsHour Originally Aired: May 30, 2007 Gore's New Book Criticizes Bush Administration, Election Process Former Vice President Al Gore speaks with Gwen Ifill about his new book, "The Assault on Reason," which criticizes the Bush administration and the diminishing role of logic in America, among other issues.
Stephen Colbert delivers a mock tribute to President Bush at the 2006 White House Correspondents' Dinner Political Humor Stephen Colbert at the White House Correspondents' Dinner
January 13, 2008, New York Times Say What You Will
By JEFFREY ROSEN FREEDOM FOR THE THOUGHT THAT WE HATE
A Biography of the First Amendment.
By Anthony Lewis.
221 pp. Basic Books. $25.
Throughout his long career as an author and a reporter and columnist for The New York Times, Anthony Lewis has been one of the most inspiring advocates of a heroic view of the American judiciary. Each year I read aloud to my criminal procedure students the final paragraphs of “Gideon’s Trumpet,” Lewis’s definitive account of the 1963 Supreme Court case that recognized a constitutional right to court-appointed counsel. They never fail to bring a lump to the throat — at least to mine. In his new book, “Freedom for the Thought That We Hate,” Lewis offers a similarly heroic account of how courageous judges in the 20th century created the modern First Amendment by prohibiting the government from banning offensive speech, except to prevent a threat of serious and imminent harm. “Many of the great advances in the quality — the decency — of American society were initiated by judges,” he writes. “The truth is that bold judicial decisions have made the country what it is.”
It’s easy to see why Lewis came to view judges as brave protectors of First Amendment rights: he covered the Supreme Court during the Warren era, when the modern First Amendment took shape, and he recalls Justice Felix Frankfurter’s showing him an eloquent 1929 dissent by Justice Oliver Wendell Holmes Jr. that defended the free speech rights of Quakers and pacifists and that inspired the title of this book. “When I came to the final paragraph,” Lewis says, “I felt the hair rise on the back of my neck.” But this is not a comprehensive narrative history of the development of the modern First Amendment; Lewis already provided that in his 1991 book, “Make No Law.” Instead, it is a passionate if discursive essay that ranges across a variety of free speech controversies — from sedition and obscenity to hate speech and secret wiretapping. This may seem like winner’s history, but the victories Lewis celebrates remain controversial. There are persistent voices, in Europe and America, that continue to argue for suppressing hate speech on university campuses, for example; Lewis rightly applauds the fact that American courts have rejected their arguments.
Still, the most surprising and provocative occasions are those when Lewis himself departs from civil libertarian free speech orthodoxy. He is not, it turns out, a fan of an unqualified federal shield law that would protect reporters from the obligation to reveal their anonymous sources in criminal cases. The press “is not always the good guy,” he writes, citing its support for the unjust prosecution of the atomic scientist Wen Ho Lee, and he praises judges who balance the costs and benefits of protecting anonymous sources in each case. He criticizes the Supreme Court for extending its most stringent protections in libel suits not only to government officials but also to movie stars and other temporary celebrities. He would allow citizens to recover damages for certain invasions of privacy when editors and reporters are “negligent in making their mistakes, rather than what is harder to prove,” when “their falsification was deliberate or reckless.” And, in the wake of the London bombings of July 2005, he would allow the prosecution of “speech that urges terrorist violence to an audience some of whose members are ready to act on the urging” — without the need to prove a risk of imminent danger, as current United States law requires.
All of Lewis’s proposals reflect his faith that the judiciary is well equipped to balance the value of free speech against other values (like privacy and national security) in a thoughtful and independent way. But is he too optimistic? There is a competing, decidedly less heroic account of First Amendment history, which holds that judges have always tended to reflect the public’s prejudices about unpopular speakers, and that most advances for free speech have been initiated not by judges, as Lewis argues, but by political activism. It was abolitionists, in the 1830s, who first argued that Southern states shouldn’t be able to ban antislavery tracts because of the remote possibility they might provoke an insurrection; the Supreme Court took another 130 years to enshrine the underlying principle into law. Similarly, the court began to protect political dissidents like Communists and Ku Klux Klan members in the late 1960s, not in the 1920s and 1950s — that is, only when they were no longer perceived as a serious threat by national majorities.
Lewis’s faith in judges also presumes that free speech controversies will take the same form in the future as they have in the past — namely, as legal battles between an overreaching government and the institutional press, with the judiciary as a neutral arbiter. But is this really likely? The rise of new technologies suggests that the free speech battles of the future may instead pit telecom corporations against private speakers, leaving judges on the sidelines. Consider Verizon’s recent decision to block abortion rights text messages by Naral Pro-Choice America from its mobile networks. (Under pressure, Verizon rescinded the decision but stood by its position that it can decide which messages to transmit.) As several scholars have argued, the solution to this problem of corporate censorship — open-access rules of “net neutrality” that would require telecom operators to make their services available to all speakers on equal terms — is in the hands of Congress and the Federal Communications Commission rather than the courts. No matter how heroic our judges, they’re not well positioned to make regulatory policy.
Moreover, as the traditional news media continue to be challenged by the Internet, the privacy and libel battles of the future won’t be the lopsided affairs Lewis describes — for example, Life magazine and its corporate power versus invasion-of-privacy victims who had no other outlets in which they could set the record straight. Instead, now that everyone with a modem is a potential journalist, we may see more cases in which individual bloggers or small publications attack one another over what are essentially differences of factual nuance. In Britain, which does not require libel plaintiffs to show deliberate falsehood, the lively journal LM (formerly Living Marxism) was bankrupted and forced to close in 2000 after being successfully sued by Independent Television News, which objected to an article charging it had sensationalized its coverage of a Bosnian detention camp. In the age of the blogosphere, inaccurate or intrusive attacks may be better shrugged off as the equivalent of snarky dinner-party gossip than treated as the occasion for lawsuits. But as more material is posted without editors, public discourse is likely to become more brutal and invasive at the same time that it becomes less amenable to judicial oversight.
In the 21st century, the heroic First Amendment tradition may seem like a noble vision from a distant era, in which heroes and villains were easier to identify. But that doesn’t diminish the inspiring achievements of First Amendment heroism. Conservative as well as liberal judges now agree that even speech we hate must be protected, and that is one of the glories of the American constitutional tradition. Anthony Lewis is right to celebrate it.
Jeffrey Rosen is a law professor at George Washington University. His book “The Supreme Court: The Personalities and Rivalries That Defined America” has just been published in paperback.
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1/12/08 7:34 PM
Online NewsHour: Conversation | Gore Book Criticizes President | May 30, 2007 | PBS
Page 1 of 4
http://www.pbs.org/newshour/bb/entertainment/jan-june07/gore_05-30.html
REGION: North America
TOPIC: Arts & Entertainment
Online NewsHour
Originally Aired: May 30, 2007
Gore's New Book Criticizes Bush Administration, Election
Process
Former Vice President Al Gore speaks with Gwen Ifill about his new book, "The Assault on Reason," which criticizes the Bush
administration and the diminishing role of logic in America, among other issues.
GWEN IFILL: Mr. Vice President, welcome.
AL GORE, former vice president of the United States: Thank you.
GWEN IFILL: The book reads as a screed. It's an attack on media, on politics, and mostly against
George W. Bush. Is that what you intended?
AL GORE: Well, the examples that are taken from the Bush-Cheney administration are alongside
examples taken from other parts of American history, also. It's heavy on examples from the last six
years, because I think they make the case very well.
But the book is really not about Bush and Cheney; it's about what has happened to our democracy.
I'm deeply concerned that the role of reason, and facts, and logic in the way we make our decisions
in America has been diminished significantly, to the point where we could make a decision to invade
a country that didn't attack us, at a time when 70 percent of the American people genuinely had the
impression and belief that Saddam Hussein was responsible for the attacks of 9/11.
In the same way that the truth about 9/11 was ignored in the rush to war, the truth about the climate
crisis has been ignored in the shaping of policies that basically do nothing to stop the most serious
crisis our civilization has ever faced. And there is a long list of serious policy mistakes that our
country has been making in the last several years that are added to the war and the climate crisis
and these others.
GWEN IFILL: So when you say that this is about cracks in fundamental democracy and not just
about Bush and Cheney, does that mean that, if you had been president, these same problems
would have existed?
AL GORE: I think many of them -- well, I would have made different mistakes if I had served as
president, and I like to think that I would have avoided some of the large ones that our country is
suffering through now, having 150,000 of our soldiers trapped in the middle of a civil war, for
example, and being an outlier and almost an outcast in the global community, when the rest of the
world is trying to confront the climate crisis.
But some of the same problems with the way Americans -- the way we Americans communicate
among ourselves, they have no tether to which party is in control or which person is president of the
United States. How we deal with them, I think, can be affected by leadership, but the problems
outlined in this book and the solutions recommended really go much broader than who's president or
which party controls Congress. This is a much deeper set of challenges that we have to address
together as Americans.
Outsourcing the truth
GWEN IFILL: You write of a "determined disinterest" in learning the truth, on the part of the Bush
administration on pre-war intelligence. You accuse the White House of an "unprecedented and
1/12/08 7:34 PM
Online NewsHour: Conversation | Gore Book Criticizes President | May 30, 2007 | PBS
Page 2 of 4
http://www.pbs.org/newshour/bb/entertainment/jan-june07/gore_05-30.html
Al Gore
Former vice president
I think that, when
someone conveys
false impressions, and
when it is done so in
such an artful way, the
phenomena itself is
part of what should be
changed.
administration on pre-war intelligence. You accuse the White House of an "unprecedented and
sustained campaign of mass deception," very strong words. And you say that President Bush
"outsourced the truth." Are you suggesting that President Bush deliberately misled the American
people when it comes to the Iraq war?
AL GORE: Well, there was certainly a coordinated effort in the White House and in the Department of
Defense simultaneously to convey the image of a mushroom cloud exploding over an American city
and to link it to a specific scenario, the very strong and explicit implication that Saddam Hussein was
going to develop nuclear weapons and give them to Osama bin Laden, and that would result in
nuclear explosions in American cities.
This was the principal hot-button justification for convincing the majority of people to support the
invasion of Iraq, and they selected weapons of mass destruction and the themes related to that, not
because they had the evidence to justify it, but because it was the most effective way to manipulate
opinion.
GWEN IFILL: Manipulating opinion, outsourcing the truth, why don't you just go ahead and call it a
lie?
AL GORE: Well, I think it's more subtle than that. I think that, when someone conveys false
impressions, and when it is done so in such an artful way, the phenomena itself is part of what
should be changed.
For example, in both political parties, 80 percent of the budgets in contested races last November
were devoted to 30-second television commercials, and the impressionistic approach is also part of
the problem, in my view, because now the conversation is not really a two-way or a multi-way
conversation. The vast majority of the information flow is over television -- that's still the dominant
medium -- and it's a one-way flow.
Al Gore
Former vice president
If [the Bush
administration]
genuinely believed that
Saddam Hussein was
responsible for 9/11,
then that's a degree of
gullibility that's quite
serious.
Impeaching the president?
GWEN IFILL: But I want to bring you back just for another moment to your indictment of the Bush
administration.
AL GORE: Yes.
GWEN IFILL: You say they are either too gullible or dishonest. Which do you think it was?
AL GORE: Well, I don't know, but they should speak for themselves, and I hope they'll answer that
question. If they genuinely believed that Saddam Hussein was responsible for 9/11, then that's a
degree of gullibility that's quite serious. And although President Bush has since tried to specifically
distance himself from that argument, Vice President Cheney still has not, so maybe there's a split
within the administration.
GWEN IFILL: You've been a leader. You served in Bill Clinton's administration as vice president. You
watched as the Republican Congress impeached him. Do you think that the Democratic-led
Congress right now should be making efforts to impeach George W. Bush?
AL GORE: I haven't made that case. You know, I think that, with...
GWEN IFILL: Why not?
AL GORE: Well, with a year and a half to go in his term and with no consensus in the nation as a
whole to support such a proposition, any realistic analysis of that as a policy option would lead one
to question the allocation of time and resources.
GWEN IFILL: You don't think it's a good use of time?
AL GORE: Well, I don't think it is. I don't think it would be likely to be successful.
'Politics is completely broken'
1/12/08 7:34 PM
Online NewsHour: Conversation | Gore Book Criticizes President | May 30, 2007 | PBS
Page 3 of 4
http://www.pbs.org/newshour/bb/entertainment/jan-june07/gore_05-30.html
Al Gore
Former vice president
[W]inning in a
game that rewards as
much superficiality and
impressionistic
manipulation as this
current state of politics
requires, you know,
that is damaging to our
country.
GWEN IFILL: Continuing to look forward a little bit, we're in the middle of already a big, vibrant race
for 2008. If you were approached -- and I imagine you have been by different people running for
president -- about the issues you raise in your book, what advice would you give them or do you give
them about finding a way to make the issues you raise front and center?
AL GORE: Well, I haven't thought about how to apply these as a candidate. I'm not a candidate,
have no plans to be a candidate.
GWEN IFILL: So you say.
AL GORE: So I say.
I've avoided being repetitious so far. But I do think that the new forms of political dialogue and
organization, the new forms of multi-way conversation that are emerging on the Internet represent a
real source of hope.
GWEN IFILL: Is that realistic? You've lived this. Do you really think it's possible to get past this
notion of what conventional politics is to some broader, more uplifting idea, based on reason, rather
than politics, pure politics?
AL GORE: Well, first of all, all of us, as the book says, are a mixture of our reasoning capacity and
our deep feelings and emotions and instincts, obviously. But the relative role of reason in American
political discourse has declined dramatically.
I think that it can be restored to a more prominent place, and I'm hopeful and optimistic that it will be.
Is it right now realistic to think that a candidate might be able to do that? I think it's possible; I think
it's possible. We may not quite be there yet, but I do think it can be restored. I really do.
Conventional politics is completely broken, Gwen. Everybody knows it, in both parties. And, you
know, those who are candidates obviously are not going to acknowledge that, and they're in it to
win, and God bless them, and may the best person win. But winning in a game that rewards as
much superficiality and impressionistic manipulation as this current state of politics requires, you
know, that is damaging to our country. It really is.
GWEN IFILL: You sound like a reformed politician.
AL GORE: A recovering politician.
GWEN IFILL: A recovering politician, as you say. But here's the question: How late can someone
still get into the 2008 race and be a viable candidate, do you think?
AL GORE: I don't know.
GWEN IFILL: You don't know? You haven't thought about that at all?
AL GORE: No, I haven't.
GWEN IFILL: OK, I'll take your word on that.
AL GORE: OK.
GWEN IFILL: Let me ask you one more question.
AL GORE: I think that some period before November of '08, but I haven't looked at the calendars
and the dates and so forth.
1/12/08 7:34 PM
Online NewsHour: Conversation | Gore Book Criticizes President | May 30, 2007 | PBS
Page 4 of 4
http://www.pbs.org/newshour/bb/entertainment/jan-june07/gore_05-30.html
Al Gore
Former vice president
Do I support the
rule of law, even
though I disagree with
the Supreme Court's
decision? I did
disagree with it, and I
think that those of us
who disagreed with it
will have the better of
the argument in
history.
Supreme court ruling in 2000
GWEN IFILL: Let me ask you one final question, which is, as you were putting this book together
and assembling your thoughts about what you see as a broad-based collapse in a lot of the way we
think and reason in our society, did you ever think to yourself, based specifically on the indictment
that you make against the Bush administration, that perhaps you conceded too soon in 2000?
AL GORE: Well, there was -- I took it all the way to a final Supreme Court decision. And in our
system, there is no intermediate step between a final Supreme Court decision and violent revolution.
So, at that point, having taken it as far as one could, then the question becomes, are we going to be
a nation of laws and not people? Do I support the rule of law, even though I disagree with the
Supreme Court's decision? I did disagree with it, and I think that those of us who disagreed with it
will have the better of the argument in history.
GWEN IFILL: The name of the book is "The Assault on Reason." Thank you, Vice President Al Gore,
very much for telling us about it.
AL GORE: Thank you.
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Stephen Colbert delivers a
mock tribute to President Bush
at the 2006 White House
Correspondents' Dinner
Political Humor
Stephen Colbert at the White House
Correspondents' Dinner
Transcript of Colbert's Presidential Smackdown
Following is the transcript of Stephen Colbert's comedy routine at the 2006 White House
Correspondents' Dinner (video available here):
Thank you, ladies and gentlemen. Before I begin, I've been asked to make an announcement.
Whoever parked 14 black bulletproof SUVs out front, could you please move them? They are
blocking in 14 other black bulletproof SUVs, and they need to get out.
Wow! Wow, what an honor! The White House Correspondents' dinner. To actually -- to sit here at the same table with my hero,
George W. Bush, to be this close to the man. I feel like I'm dreaming. Somebody pinch me. You know what? I'm a pretty sound
sleeper; that may not be enough. Somebody shoot me in the face. Is he really not here tonight? Damn it! The one guy who could
have helped.
By the way, before I get started, if anybody needs anything else at their tables, just speak slowly and clearly into your
table numbers. Someone from the NSA will be right over with a cocktail.
Mark Smith, ladies and gentlemen of the press corps, Madame First Lady, Mr. President, my name is Stephen Colbert, and tonight
it is my privilege to celebrate this president, ‘cause we're not so different, he and I. We both get it. Guys like us, we're not
some brainiacs on the nerd patrol. We're not members of the factinista. We go straight from the gut. Right, sir?
That's where the truth lies, right down here in the gut. Do you know you have more nerve endings in your gut than you
have in your head? You can look it up. Now, I know some of you are going to say, "I did look it up, and that's not true."
That's 'cause you looked it up in a book. Next time, look it up in your gut. I did. My gut tells me that's how our nervous
system works.
Every night on my show, The Colbert Report, I speak straight from the gut, okay? I give people the truth, unfiltered by rational
argument. I call it the "No Fact Zone." FOX News, I hold a copyright on that term.
I'm a simple man with a simple mind. I hold a simple set of beliefs that I live by. Number one, I believe in America. I believe it
exists. My gut tells me I live there. I feel that it extends from the Atlantic to the Pacific, and I strongly believe it has 50 states, and I
cannot wait to see how the Washington Post spins that one tomorrow.
I believe in democracy. I believe democracy is our greatest export. At least until China figures out a way to stamp it out of plastic
for three cents a unit. As a matter of fact, Ambassador Zhou Wenzhong, welcome. Your great country makes our Happy Meals
possible. I said it's a celebration.
I believe the government that governs best is the government that governs least. And by these standards, we have set up
a fabulous government in Iraq.
I believe in pulling yourself up by your own bootstraps. I believe it is possible. I saw this guy do it once in Cirque du Soleil. It was
magical!
And though I am a committed Christian, I believe that everyone has the right to their own religion, be you Hindu, Jewish or Muslim.
I believe there are infinite paths to accepting Jesus Christ as your personal savior.
Ladies and gentlemen, I believe it's yogurt. But I refuse to believe it's not butter.
Most of all, I believe in this president. Now, I know there are some polls out there saying that this man has a 32% approval rating.
1/12/08 7:41 PM
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But guys like us, we don't pay attention to the polls. We know that polls are just a collection of statistics that reflect what
people are thinking in "reality." And reality has a well-known liberal bias. So, Mr. President, please, please, pay no attention
to the people that say the glass is half full. 32% means the glass -- important to set up your jokes properly, sir. Sir, pay no
attention to the people who say the glass is half empty, because 32% means it's 2/3 empty. There's still some liquid in
that glass is my point, but I wouldn't drink it. The last third is usually backwash. Okay.
Look, folks, my point is that I don't believe this is a low point in this presidency. I believe it is just a lull before a comeback. I
mean, it's like the movie Rocky. Alright? The President, in this case, is Rocky Balboa, and Apollo Creed is everything else in the
world. It's the tenth round. He's bloodied. His corner man, Mick, who in this case, I guess, would be the Vice President, he's
yelling, "Cut me, Dick, cut me!" And every time he falls, everyone says, "Stay down, Rocky! Stay down!" But does he stay down?
No. Like Rocky, he gets back up, and in the end he -- actually loses in the first movie. Okay, doesn't matter. Doesn’t matter.
The point is it is the heart-warming story of a man who was repeatedly punched in the face, so don't pay attention to the approval
ratings that say that 68% of Americans disapprove of the job this man is doing. I ask you this, does that not also logically mean
that 68% approve of the job he's not doing? Think about it. I haven't...
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January 13, 2008, New York Times
Say What You Will
By JEFFREY ROSEN
FREEDOM FOR THE THOUGHT THAT WE HATE
A Biography of the First Amendment.
By Anthony Lewis.
221 pp. Basic Books. $25.
Throughout his long career as an author and a reporter and columnist for The New York Times, Anthony Lewis has been one of the most inspiring advocates of a heroic view of the American judiciary. Each year I read aloud to my criminal procedure students the final paragraphs of “Gideon’s Trumpet,” Lewis’s definitive account of the 1963 Supreme Court case that recognized a constitutional right to court-appointed counsel. They never fail to bring a lump to the throat — at least to mine. In his new book, “Freedom for the Thought That We Hate,” Lewis offers a similarly heroic account of how courageous judges in the 20th century created the modern First Amendment by prohibiting the government from banning offensive speech, except to prevent a threat of serious and imminent harm. “Many of the great advances in the quality — the decency — of American society were initiated by judges,” he writes. “The truth is that bold judicial decisions have made the country what it is.”
It’s easy to see why Lewis came to view judges as brave protectors of First Amendment rights: he covered the Supreme Court during the Warren era, when the modern First Amendment took shape, and he recalls Justice Felix Frankfurter’s showing him an eloquent 1929 dissent by Justice Oliver Wendell Holmes Jr. that defended the free speech rights of Quakers and pacifists and that inspired the title of this book. “When I came to the final paragraph,” Lewis says, “I felt the hair rise on the back of my neck.” But this is not a comprehensive narrative history of the development of the modern First Amendment; Lewis already provided that in his 1991 book, “Make No Law.” Instead, it is a passionate if discursive essay that ranges across a variety of free speech controversies — from sedition and obscenity to hate speech and secret wiretapping. This may seem like winner’s history, but the victories Lewis celebrates remain controversial. There are persistent voices, in Europe and America, that continue to argue for suppressing hate speech on university campuses, for example; Lewis rightly applauds the fact that American courts have rejected their arguments.
Still, the most surprising and provocative occasions are those when Lewis himself departs from civil libertarian free speech orthodoxy. He is not, it turns out, a fan of an unqualified federal shield law that would protect reporters from the obligation to reveal their anonymous sources in criminal cases. The press “is not always the good guy,” he writes, citing its support for the unjust prosecution of the atomic scientist Wen Ho Lee, and he praises judges who balance the costs and benefits of protecting anonymous sources in each case. He criticizes the Supreme Court for extending its most stringent protections in libel suits not only to government officials but also to movie stars and other temporary celebrities. He would allow citizens to recover damages for certain invasions of privacy when editors and reporters are “negligent in making their mistakes, rather than what is harder to prove,” when “their falsification was deliberate or reckless.” And, in the wake of the London bombings of July 2005, he would allow the prosecution of “speech that urges terrorist violence to an audience some of whose members are ready to act on the urging” — without the need to prove a risk of imminent danger, as current United States law requires.
All of Lewis’s proposals reflect his faith that the judiciary is well equipped to balance the value of free speech against other values (like privacy and national security) in a thoughtful and independent way. But is he too optimistic? There is a competing, decidedly less heroic account of First Amendment history, which holds that judges have always tended to reflect the public’s prejudices about unpopular speakers, and that most advances for free speech have been initiated not by judges, as Lewis argues, but by political activism. It was abolitionists, in the 1830s, who first argued that Southern states shouldn’t be able to ban antislavery tracts because of the remote possibility they might provoke an insurrection; the Supreme Court took another 130 years to enshrine the underlying principle into law. Similarly, the court began to protect political dissidents like Communists and Ku Klux Klan members in the late 1960s, not in the 1920s and 1950s — that is, only when they were no longer perceived as a serious threat by national majorities.
Lewis’s faith in judges also presumes that free speech controversies will take the same form in the future as they have in the past — namely, as legal battles between an overreaching government and the institutional press, with the judiciary as a neutral arbiter. But is this really likely? The rise of new technologies suggests that the free speech battles of the future may instead pit telecom corporations against private speakers, leaving judges on the sidelines. Consider Verizon’s recent decision to block abortion rights text messages by Naral Pro-Choice America from its mobile networks. (Under pressure, Verizon rescinded the decision but stood by its position that it can decide which messages to transmit.) As several scholars have argued, the solution to this problem of corporate censorship — open-access rules of “net neutrality” that would require telecom operators to make their services available to all speakers on equal terms — is in the hands of Congress and the Federal Communications Commission rather than the courts. No matter how heroic our judges, they’re not well positioned to make regulatory policy.
Moreover, as the traditional news media continue to be challenged by the Internet, the privacy and libel battles of the future won’t be the lopsided affairs Lewis describes — for example, Life magazine and its corporate power versus invasion-of-privacy victims who had no other outlets in which they could set the record straight. Instead, now that everyone with a modem is a potential journalist, we may see more cases in which individual bloggers or small publications attack one another over what are essentially differences of factual nuance. In Britain, which does not require libel plaintiffs to show deliberate falsehood, the lively journal LM (formerly Living Marxism) was bankrupted and forced to close in 2000 after being successfully sued by Independent Television News, which objected to an article charging it had sensationalized its coverage of a Bosnian detention camp. In the age of the blogosphere, inaccurate or intrusive attacks may be better shrugged off as the equivalent of snarky dinner-party gossip than treated as the occasion for lawsuits. But as more material is posted without editors, public discourse is likely to become more brutal and invasive at the same time that it becomes less amenable to judicial oversight.
In the 21st century, the heroic First Amendment tradition may seem like a noble vision from a distant era, in which heroes and villains were easier to identify. But that doesn’t diminish the inspiring achievements of First Amendment heroism. Conservative as well as liberal judges now agree that even speech we hate must be protected, and that is one of the glories of the American constitutional tradition. Anthony Lewis is right to celebrate it.
Jeffrey Rosen is a law professor at George Washington University. His book “The Supreme Court: The Personalities and Rivalries That Defined America” has just been published in paperback.
Taxi to the Dark Side interview on NPR:
http://stream.publicbroadcasting.net/production/mp3/fairgame/local-fairgame-665828.mp3
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