For those of us who still read and write—and why be gloomy about the number, given how many people are vigorously gathering “likes” on Facebook?—what is more precious than free speech? But freedom of speech is complicated. Leaving aside whether the Charlie Hebdo massacre in Paris was the work of true believers or opportunistic madmen, or both, the idea that a cartoon image of anyone, human or divine, can be offensive per se seems perplexing at best. Yet Charlie Hebdo often found itself in French courts on charges of hate speech or defamation. Free expression is necessary for a democratic society, but even in this country we have always accepted limits on it, banning obscenity, for example, or words that incite violence. As Lincoln Caplan points out in our cover story, the U.S. Supreme Court has, in its history, recognized dozens of such limitations.
These limits suggest that freedom of expression has value only to the extent that it serves higher goals. But Caplan’s essay shows that the Supreme Court has increasingly ignored the logic of this, treating free speech as an end rather than a means. The Court’s approach gave us Citizens United, but as Caplan explains, that is only the worst example of a whole new view of free speech, a view that favors the rich and powerful.
A second article looks back 150 years to the days following President Lincoln’s assassination. As Harold Holzer points out in his recent book about Lincoln and the press, Honest Abe had no problem limiting First Amendment rights during the Civil War. Jonathan W. White, who has also written about Lincoln’s rough handling of basic liberties, describes here the fury that broke out in the North after the president’s death, including mob violence that often had as its object Democratic newspapers that had opposed Lincoln and the war. As White shows, the authorities were often slow to protect those seen as Lincoln’s antagonists. “The aftermath of Lincoln’s assassination,” White writes, “was one final moment when First Amendment rights were openly trammeled.” Somewhere between trammeling and the Court’s new absolutism, a happy medium for free speech must exist.
A magazine is only as good as its writers, and a number of good ones appear in this issue. Of the two I’ve mentioned, Caplan has been covering the law for four decades, as a staff writer for The New Republic and The New Yorker early in his career and as an editorial writer for The New York Times more recently. This is his fourth cover story for us. White is an assistant professor of American studies who at a tender age already has five books under his belt and two more in progress. This is his first article in our pages. Both writers, as it happens, exhibit the wisdom of age and the enthusiasm of youth.
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