FOREWORD

The First Amendment has become the hottest battlefront of American constitutional law. Libel, campaign spending, publication of government secrets, hateful speech: these and a dozen other subjects have tested the amendment’s command that “Congress shall make no law ... abridging the freedom of speech, or of the press.” The very words “First Amendment” have become a rallying cry for the press and other interests arguing that their freedom outweighs other public concerns. As a result of First Amendment litigation, activities commonly regulated or prohibited in other democracies—denunciation of religious groups, leaks of military records, political advertising—are now protected by the Constitution.

The literature of the First Amendment has grown apace. Books on interpretation of the fourteen words in its speech and press clauses are numerous; I have added to the pile myself. But this book is different. It does not have the smell of the lamp, of theorizing at a distance. It is a report from the front lines.

Here are men and women whose often eccentric lives led to great courtroom tests of freedom: Yetta Stromberg, who had a red flag when she was a counselor at a summer camp for young Communists in 1929 and was sentenced to prison for displaying that symbol of radicalism. And Dannie Martin, a longtime criminal who wrote articles for the San Francisco Chronicle about the federal prison he was in until the authorities stopped him.

Bill Turner is a First Amendment lawyer. (I use the nickname because I have known him for many years.) He shows what goes on in a case before a court hands down a decision. He gives intimate and fascinating details of lawsuits that he personally tried and argued, and of others going back into history.

Yetta Stromberg’s case, for example. What anyone is likely to know about it is the decision of the United States Supreme Court in 1931. Chief Justice Charles Evans Hughes, writing for the Court, tells us that Ms. Stromberg was convicted of violating a California law that made it a crime to display a red flag “as a sign, symbol or emblem of opposition to organized government.” Hughes said that “a fundamental principle of our constitutional system” is that there should be opportunity for “free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means.” The California law violated that principle.

Turner fills in the picture of Yetta Stromberg—and of what we might think was the naïve radicalism of her summer camp. Yetta, 19 years old, and the other counselors were all volunteers. At seven every morning red flags were raised, and Yetta led the campers in reciting: “I pledge allegiance to the workers’ red flag, and to the cause for which it stands....”

Then Turner gives us a glimpse of the political context that produced this case. Yetta’s camp was raided by a California district attorney, accompanied by carloads of vigilantes—American Legion members looking for subversives. They arrested Yetta and six others, including Bella Mintz, the camp cook. A jury convicted Yetta and five others, and she was sentenced to prison for one to ten years.

In short, Yetta was a victim of the Red Scare that gripped much of America in the 1920s. California and dozens of other states passed laws condemning the red flag and criminalizing what they called “syndicalism”—Communism or socialism by another name. A succession of challenges to these laws reached the Supreme Court, but through that decade they were rejected by a conservative majority of the Court. The contrary case—the case that unpopular speech must be allowed in a constitutional democracy—was made by two dissenting justices, Oliver Wendell Holmes Jr. and Louis D. Brandeis. The supreme example of their logic and their rhetoric was Brandeis’s opinion in the 1927 case of Anita Whitney, who had been convicted in California of belonging to an organization that advocated “criminal syndicalism.” Brandeis wrote:

“Those who won our independence ... believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think what you will and to speak as you think are means indispensable to the discovery and spread of political truth.... Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law....”

The dissents of Brandeis and Holmes finally became the voice of the majority on the Supreme Court in the case of Yetta Stromberg. In his opinion reversing her conviction, Chief Justice Hughes did not rise to the eloquence of Holmes and Brandeis. But his conclusion that the California red flag law violated the constitutional principle of free political discussion was a decisive victory for the First Amendment. It was, as Turner points out, the first time ever that a claim of free speech had won a constitutional test in the Supreme Court. And it was the beginning of a steady expansion of that freedom by the Court over the following decades.

We must not be too romantic, however, about judges as defenders of our freedom. The Red Scare of the 1920s was by no means the only time large numbers of Americans gave way to fear. Fear of Communism gripped the country during the Cold War, when Senator Joseph McCarthy and other demagogues thrived on Communist-hunting. And the Supreme Court was slow to stand against the threat to freedom.

The lowest ebb of First Amendment protection during the second Red Scare came in 1951, when the Supreme Court upheld the conviction of American Communist Party leaders for conspiring to teach the necessity of overthrowing the government. The party was a feeble remnant by then, and it posed no imaginable threat. Justice Hugo L. Black, dissenting, said: “Public opinion being what it is now, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred placed where they belong in a free society.”

Later Supreme Courts did exactly that, breathing new life into the First Amendment. But Turner reminds us that the law of freedom is not made only by those nine justices in Washington. It is made by nasty characters like Larry Flynt of Hustler magazine. It is made by reporters like Earl Caldwell of the New York Times, who resisted the government’s demand that he appear before a grand jury to be questioned about his coverage of the Black Panthers. And it is made by lawyers like Bill Turner, guiding clients through the toils of official resistance to the uplands of freedom.

Anthony Lewis