Free speech, press: Discuss

Time flies. It’s four years since Margaret Marshall retired as chief justice of the Massachusetts Supreme Judicial Court, and we haven’t heard much from her in the interim. It’s less than two years since Tony Lewis died, and there’s so much we should have heard from him in that time.

Besides being a columnist for The New York Times, Tony Lewis was a conscience for a lot of us. But he was also a husband to Margie, who left the bench to take care of him as his health failed, and he informed her outlook more than he did his readers.

So it was no big surprise that Margie Marshall was giving a lecture the other night at Harvard, where her husband was managing editor of The Crimson as an undergraduate and she got a master’s degree in education and served as the university’s chief counsel before becoming the state’s top judge.

She spoke about something she and her husband loved almost as much as each other: the First Amendment.

“Tony had strong feelings — very strong — about the First Amendment, about law, justice, and liberty,” she said. “Tony spent a great deal of time with judges and lawyers. It was a close call, but in the end, I think Tony admired journalists more than he admired lawyers and judges.”

She paused, as lawyers are wont to do, before adding, “But he did marry a judge.”

He looked at the First Amendment as a journalist. She looked at it as a judge. Perhaps more significantly, she looks at it as a white person who grew up in the racist, totalitarian system of apartheid in South Africa.

“South Africa’s apartheid government, like other tyrannies, saw a free press and free speech as its enemies. And so they are,” she said. “Our Founders understood this and placed freedom of the press and free speech as the ‘first’ personal rights of their countrymen.”

But Marshall believes the same First Amendment that was envisioned as a shield to protect diverse and unpopular viewpoints “has become a sword, striking at values and institutions that define who we are as a nation.”

She says the presumptive shield against that sword — the US Supreme Court — has instead championed the erosion of free speech by increasingly making it the protected domain of the wealthy, the intolerant, and the government.

The unholy trinity, in her view, is evident in the way the Supreme Court has ruled on the role of money, hate speech, and privacy.

The Citizens United v. Federal Election Commission decision, which ridiculously equates corporate speech with some quixotic dreamer standing on a soap box on Boston Common, has unleashed a towering wave of millions of dollars in corporate political advertising that Marshall holds as “antithetical to the very notion of participatory democracy.”

As Orwell might have put it, some speech is more equal than others. Corporations can afford it. The rest of us can get in line.

Partisan activists have seized on Citizens United as a blank check to go state by state, trying “to dismantle all ethical restrictions on what judicial candidates may say, even while on the bench.”

Marshall scoffs at suggestions this is meant to enhance the marketplace of ideas or enrich the public discourse.

“Their goal is to buy the loyalty of judges who will then rule in the favor of the group’s special interests,” she said. “By pounding judges or judicial candidates seen as adverse to their interests with negative advertising, much of it of the gutter variety, these groups eschew all subtlety about their aims. The strategy is working.”

Marshall worries that a majority of the Supreme Court seems far too content with “a tsunami of racist, misogynistic, homophobic, degrading, violent, and horrifying words and imagery” that is a click away on radio, TV, and the Internet.

“Cyber hate has ignited a race to the bottom, driven by profit, sustained by a public primed for ever more heightened sensation,” she said.

She says the First Amendment absolutism of the court under Chief Justice John Roberts defends all speech, regardless of content, an abrogation of common sense. So the First Amendment is used to justify the sale of violent video games to children, to allow the sale and distribution of videos showing small animals being crushed to death under women’s high heels, to defend someone’s false claim that he received a military honor.

She has little time for Justice Anthony Kennedy’s defense, “That’s what the First Amendment is for, to bother people.”

She cannot understand how the First Amendment can possibly be used to protect the nut jobs from the Westboro Baptist Church of Kansas, who travel around the country to the funerals of American soldiers, airmen, sailors, and Marines to scream insults at the dead and carry signs proclaiming, “GOD HATES FAGS.”

She suggests Europe’s Court of Human Rights strikes a better balance between protecting free speech and prohibiting hate speech.

She worries that in America, “We cede the conversation to First Amendment vigilantes.”

She also worries that the Supreme Court has allowed the government to spy on its own citizens with impunity.

“The massive, barely perceptible assault by the government on the right to privacy is perhaps the greatest threat to freedom of the press and free speech our country has ever known,” she said. “9/11 caused a recalibration of the trade-offs between privacy and security in this country, and the balance we struck is not compatible with a free people living in an open society.”

When Margie Marshall finished, I imagined Tony Lewis sitting in the corner, peering over his glasses. He would have nodded in approval, and said, quite simply, “Discuss.”