We Must Not Be Afraid to Be Free: Stories of Free Expression in America

  • Ronald K.L. Collins and Sam Chaltain
  • Oxford University Press
  • 448 pp.
  • May 3, 2011

A compelling look at some of the people whose lives changed the law of free speech and the First Amendment.

Reviewed by Erwin Chemerinsky

One of the greatest challenges in teaching constitutional law is to have the students understand that the cases are not about abstract principles but about real people and their lives. Law students are not alone in this way; I often have the sense that appellate judges and Supreme Court justices lose sight of the human beings involved in the cases before them. The new book by Ronald K.L. Collins and Sam Chaltain is important because it provides 10 compelling stories of those whose lives changed the law of free speech and the First Amendment.

Collins and Chaltain have chosen a fascinating mix of stories to tell. Some are of famous cases, such as New York Times v. United States, which held that it violated the First Amendment to enjoin newspapers from publishing the Pentagon Papers, a history of America’s involvement in the Vietnam War. Collins and Chaltain tell of Daniel Ellsberg and how he came to “leak” the Pentagon Papers to the New York Times, and of the editors’ decision to publish them despite White House requests to stop the presses. They describe how a famous law professor, Alexander Bickel, was arguing his first case before a judge, Murray Gurfein, on his first day on the bench.

But Collins and Chaltain also tell the story of much less prominent cases. The first chapter focuses on George Anastaplo, who graduated first in his class from the University of Chicago Law School and was denied admission to the bar for quoting Thomas Jefferson and the Declaration of Independence. Even though he was not a lawyer, Anastaplo argued his own case to the Supreme Court and lost 5-4. Collins and Chaltain describe the passion and the conviction and the sacrifice behind Anastaplo’s stand for the Constitution.

Two of the most interesting chapters are not about cases but about individuals. In one chapter, we get the story of Alexander Meiklejohn, who wrote eloquently about the purposes of the First Amendment and whose work continues to influence us a half-century after his death. Another chapter focuses on Robert Carter, a lawyer for the NAACP and later a federal district court judge. Carter played a key role in challenging a series of laws in Alabama and other states designed to stop the NAACP from operating, such as by requiring the organization to disclose  membership lists.

Although the 10 stories are distinct, common themes unite the book and justify a wide readership.  First, each chapter tells a story of real people who cared deeply about freedom of speech and were willing to take great risks for it. For example, one chapter gives the story of Mary Beth Tinker, who wanted to wear an armband to a Des Moines high school to protest the Vietnam War. She persisted in the face of punishment and community pressure, and ultimately prevailed in the Supreme Court, which powerfully declared that students do not leave their free speech rights at the schoolhouse gates.

The authors tell of Gregory Johnson, who was willing to go to prison to exercise his constitutional right to burn an American flag as a form of political protest.  Johnson ultimately won in the Supreme Court, but his victory was far from predictable; he prevailed only because conservative justices Antonin Scalia and Anthony Kennedy joined with three liberal justices to hold that laws prohibiting flag-burning violate the First Amendment.

Second, every chapter is meticulously researched and filled with details that will inform even experts on the First Amendment. For over three decades I have taught Gitlow v. New York as the first case in which the Supreme Court held that the First Amendment’s protection of free speech applies to state and local governments. But never had I known the story of Benjamin Gitlow, what led to his being prosecuted for advocating the overthrow of the government and what happened to him later. Collins and Chaltain provide sequels to the stories behind the cases, describing what became of the parties after the Supreme Court rendered its decision, something I have often wished that casebooks would do. At the same time, the authors explain to readers how the decisions affected the development of the law.

Third, the book is unified by a focus on Hugo Black. Both the introduction and the conclusion invoke Justice Black and his belief that the First Amendment was absolute in its protection of free speech. Many of the chapters return to Black and his views. The title of the book, We Must Not Be Afraid to Be Free, comes from Black and provides a theme throughout the book: speech is often suppressed based on fear, but the loss of liberty rarely provides greater security. Throughout American history, the response to crises often has been repression, but hindsight shows that little was gained by compromising constitutional rights.

In their introduction, Collins and Chaltain suggest that there are many more stories to tell and that they are contemplating a sequel. I very much look forward to it. They have written a book that every student of the First Amendment, especially every judge and justice, should read. Not only does it provide a thorough overview of free speech law, but its stories are a wonderful reminder of the people and lives that shaped constitutional law.

Erwin Chemerinsky is founding dean and distinguished professor of law at the University of California, Irvine School of Law. He includes civil rights and civil liberties among his areas of expertise, and is the author of seven books, most recently The Conservative Assault on the Constitution (October 2010, Simon & Schuster).

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