MAKE NO LAW by Anthony Lewis is an absorbing study of a landmark First Amendment case, THE NEW YORK TIMES V.
SULLIVAN (376 U.S. 254 (1964)). In 1960, a full-page ad in the New York Times alleged that the arrest of the Rev. Martin
Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and
encourage blacks to vote. L. B. Sullivan, the Montgomery, Alabama city commissioner, filed a libel action against the newspaper
and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police
defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed. A defense claiming that the
ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. The Times appealed
through the Alabama courts, but continued to lose. Its last chance was an appeal to the Supreme Court of the United States.
In his opinion for a unanimous Court, William J. Brennan, Jr. argued that the First Amendment protects the publication of all
statements, even false ones, about the conduct of public officials except when such statements are made with actual malice (with
knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.
The decision also energized a new view of the First Amendment, one that now accommodates expression that challenges the
existing order.
When reading the Sullivan case today, one might see its conclusion as a natural progression of First Amendment principles. But
that was decidedly not the case when the Times recognized that it was vulnerable to libel actions that would likely impair its ability
to function.
A crucial player in the effort to reverse the Alabama courts was Professor Herbert Wechsler. Legal insiders -- commentators,
judges, and law teachers -- know of Wechsler's fundamental contributions to the study of federal courts and federalism. Through
Lewis's portrait of Wechsler, legal outsiders will also grasp his genius, his masterful line of attack, and the "sea change" in First
Amendment thinking occasioned by the Sullivan case and Wechsler's vital contribution to it.
Sullivan stands out as the single most important case in the extraordinary career of Justice William J. Brennan, Jr. Lewis had
access to Brennan's files enabling a dramatic reconstruction of the decision from the inside. Beyond the drafts and comments
common to scholars who trudge through judges' papers, Brennan followed a practice that proved to be extraordinarily valuable to
Lewis, and by implication, to others seeking to pierce the veil of secrecy that shrouds the Court. For his thirty-four years on the
Court, Brennan had his law clerks write accounts of the process of decision whenever Brennan played a significant part. The
clerk's account
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in the Sullivan case enabled Lewis to explain the process of opinion-writing and coalition-building. It took eight drafts, and much
persuasion, to move the Brethren to act unanimously. Lewis demonstrates that Brennan's majority view was in jeopardy, belying
the sense of agreement among the five justices who joined in Brennan's final draft. (Black and Goldberg wrote separate
concurrences; Douglas joined each of them.)
Many of us have relied on Lewis's splendid book, GIDEON'S TRUMPET, to impart a sense of drama and realism to the world of
constitutional law and politics. But GIDEON'S TRUMPET has been showing its age. Will Lewis's new work be an acceptable
substitute? The Sullivan case imposes higher start-up costs. The facts are more complicated, the principles are more abstract, the
interests at issue are less tangible, the historical context is more complex. For introductory classes in political science, I doubt that
this new effort will come off well. In upper division classes in civil liberties, the story is compelling and comprehensive. However,
it may prove too elementary by collapsing a vast body of First Amendment jurisprudence into the span of a few chapters. Perhaps
MAKE NO LAW has a place in judicial process courses. In the end, it remains the story of a single landmark decision.
Lewis makes his share of mistakes; some of them are worth addressing. In seeking to instruct the reader on the life spans of
constitutional decisions, Lewis rightly points out that the Court can and does reverse itself and that constitutional amendments may
also serve to reverse the Court. To illustrate the latter, Lewis offers his readers the amendment that overturned the Court's holding
that the government could not issue paper money (89). However, there is no such amendment. Perhaps Lewis was referring to
Amendment XVI, which gave approval to a national income tax and thereby overturned the Court's decision in POLLACK V.
FARMERS LOAN & TRUST (1895). However, Lewis's chapter notes lack sufficient detail to clarify his illustration.
Lewis also engages in some serious distortions of text and fact that cast doubt on his objectivity. Lewis maintains that Brennan
held the Sedition Act of 1798 unconstitutional in the Sullivan case. Brennan's opinion reviewed the history of the Sedition Act and
observed the weight of power-houses lined up against its validity. (No Court had held the Act unconstitutional; the act expired in
1801.) Brennan then summarized this evidence: "These views reflect a broad consensus that the Act, because of the restraint it
imposed upon criticism of government and public officials, was inconsistent with the First Amendment." Lewis leaps from this
statement to the claim that Brennan had held the 1798 Act invalid.(145)
Brennan's statement is a generous summary of the evidence. Notable dissents by Holmes, Brandeis, and Robert Jackson must be
weighed against the silence of other justices to support the invalidity argument. Even granting that there probably was broad
consensus on the Act's invalidity does not transform such consensus into a decision that the Act was invalid. Therefore, it is a
distortion of Brennan's language to maintain that he was declaring or holding for the Court that the Sedition Act was
unconstitutional.
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Lewis has also taken liberties with the facts surrounding the flag-burning issue. Lewis notes that the expansive view of the First
Amendment exemplified in the Sullivan case was jeopardized by a proposed constitutional amendment to protect the American
flag. Lewis observes that following the second flag-burning case (UNITED STATES V. EICHMAN), the proposed amendment
"got nowhere in Congress."(243) The facts cast a different impression. The amendment won passage in the Senate and nearly
won approval in the House. It failed by a vote of 254-177, 34 votes shy of the required two-thirds approval. This is hardly "going
nowhere" since few proposed amendments make it to this stage.
Lewis then goes on to speculate on the reasons for the failure of the amendment. Lewis speculates: "Perhaps Americans, or
enough of them, came to agree with Justice Holmes that `we should be eternally vigilant against attempts to check the expression
of opinions that we loathe and believe to be fraught with death.'"(243) Again, the evidence casts a different impression. A
front-page story in the New York Times in June 1990 reported that a clear majority of Americans favored the amendment.(New
York Times, 12 June 1990, p.A1) Surely a look to the public opinion data would have given a different spin to Lewis's tale along
the following lines: While most Americans favored a limit on free expression in law or in the Constitution, civil libertarians
operating within a pluralist democracy mobilized sufficient opposition to trump majority will.
Anthony Lewis has a proud record as a civil libertarian. He has been a staunch defender of free expression, and this readable and
articulate book is a demonstration of his civil libertarian faith. His position is that free expression trumps most (perhaps all) order
claims that government may assert in an effort to restrict vigorous debate on public issues. In the conflict between freedom and
order, Lewis defends freedom.
I wish, however, that Lewis had explored the more difficult dilemma stemming from some feminist legal thinkers like Andrea
Dworkin and Catherine McKinnon. They argue that some forms of expression deny equality, especially to women. They cast a
freedom-versus-order conflict into a freedom-versus-equality claim. When faced with this choice, many liberals find either horn
problematic. Lewis leaves us in the dark on this conflict, though he had an opening in his discussion of the obscenity issue, which
he addresses at various points in his book. While not central to his thesis, this issue engages many liberals and conservatives and it
would have prefigured the new area of debate in the free expression domain. But this is to indict Lewis for an issue he did not
raise. Perhaps it will force another examination of freedom of expression by Lewis or others. For the moment, however, free
expression and the First Amendment remain secure in Lewis's accomplished hands.
