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Freedom for the Thought That We Hate: A Biography of the First Amendment
By Anthony Lewis
Basic Books, 2010, 240 pages
$10.85 paperback, $9.77 Kindle

I don’t know if most Americans appreciate how extraordinary our right to a free press is. Our news media, publications, and written words of all kinds—and spoken words for that matter—are relatively free to criticize, hold accountable, and disclose secrets of the government and politicians, corporations and business leaders, organizations and public figures, celebrities, alleged criminals, and big shots. This freedom enables the press to act as an independent watchdog against abuse of power, and as an open marketplace of ideas. The USA has the freest press on earth, according to Pulitzer-prize winning author Lewis (author of Gideon’s Trumpet).

The book’s enigmatic title can be explained by a quote from an article by Hendrik Hertzberg, writing in The New Republic (July 14-21, 1986):

“The First Amendment contains no requirement that the speech it protects is harmless. On the contrary, speech that somebody thinks is harmful is the only kind that needs protecting.”

The language in the First Amendment is clear: “Congress shall make no law…abridging the freedom of speech, or of the press.” But its application involves many gray areas and legal quagmires, as Lewis demonstrates in his lucid legal history of free speech in the USA, starting with the 1798 Sedition Act (which criminalized criticism of President Adams). The history involves issues such as the difference between ordinary speech, commercial speech, and political speech; artistic expression, libel, privacy, obscenity, hate speech and incitement to terrorism; and the press’s shielding of confidential sources.

Characters in this story include Oliver Wendell Holmes, Louis Brandeis, and others whose bold and stirring decisions on the Supreme Court have advanced and protected freedom of speech.

Freeing the Presses: The First Amendment in Action
Edited by Timothy E. Cook
Louisiana State University Press, 2006, 187 pages
$18.95 paperback

Six political communication scholars draw on history, sociology, political science, legal philosophy, and journalism to analyze the freedoms and privileges given to the news media and to reporters, and whether those freedoms actually help produce the kind of news that keeps American democracy strong.

Click on the book image for details or to purchase.

Here are two books in defense of, and two critical of, the Bush Administration’s expansion of executive power from 9/11/01 through 2008.

Not a Suicide Pact: The Constitution in a Time of National Emergency
By Richard A. Posner
Oxford University Press, 2006, 208 pages
$23.96 hardcover, $9.99 Kindle

Posner, a judge on the U.S. Court of Appeals, argues that in the face of terrorism, national security concerns become paramount, and the scope of constitutional rights and liberties must be narrowed. He says brutal forms of interrogation should be allowed in certain circumstances, and that all communications within the USA should be subject to interception and examination. Posner advocates expanding the power of the executive branch even in undeclared wars (like all of the wars we’ve fought since WWII).

Law and the Long War: The Future of Justice in the Age of Terror
By Benjamin Wittes
Penguin, 2009, 320 pages
$13.50 paperback, $9.99 Kindle

Legal affairs columnist and Brookings Institution fellow Wittes supports the expansion of executive power in the Bush-Cheney administration, and applauds many of its security measures, but argues that the “legal architecture” now in place is inadequate for a protracted war on terror. What we need now is broad legislation for addressing the civil liberties and human rights issues that arise in response to aggressive counterterrorism efforts. The legal foundation for domestic surveillance, extraordinary rendition, and torture of detainees is “cobbled together out of outdated and ill-fitting materials, and its flaws are glaring” (Booklist review). Wittes critizes the U.S. Supreme Court for interfering in foreign policy since 9/11/01 (e.g., attempting to extend its jurisdiction over detainees).

Power Play: The Bush Presidency and the Constitution
By James P. Pfiffner
Brookings Institution, 2008, 299 pages
$22.00 hardcover, $9.99 Kindle

The Bush-Cheney administration denied the writ of habeas corpus to individuals deemed to be enemy combatants. It suspended the Geneva Convention and allowed or encouraged the use of harsh interrogation methods amounting to torture. It ordered the surveillance of Americans without obtaining warrants as required by law. And it issued signing statements declaring that the president does not have the duty to faithfully execute hundreds of provisions in the laws he has signed. “Pfiffner builds a powerful case pointing toward one unmistakable conclusion: since 9/11, the claims and actions of the Bush administration [undermined] constitutional principles and rule of law,” wrote Hugh Heclo, professor of public affairs at George Mason University.

Bush, the Detainees, and the Constitution: The Battle over Presidential Power in the War on Terror
By Howard Ball
University Press of Kansas, 2007, 275 pages
$26.56 hardcover

Ball examines the enemy combatants cases of 2004 and 2006, including Rasul v. Bush, Hamdi v. Bush, Rumsfeld v. Padilla, and Hamdan v. Rumsfeld. He summarizes competing legal arguments pitting the detainees’ fundamental human rights (including habeas corpus) against Bush’s proclamation that he alone has the authority to decide their fate, as well as efforts by the Court and Congress to reclaim their own authority in such matters. Ball also analyzes the two Congressional Authorizations for the Use of Military Force, the Patriot Act, and the NSA’s warrantless wiretapping program; and describes how the administration found ways to evade both the letter and spirit of the Supreme Court’s decisions through new legislation, presidential signing statements, and redefinition of the status of the detainees. “President Bush’s treatment of enemy combatants in the ‘war on terror’ is the most important constitutional story of our time, and Howard Ball tells it with a deft sense for detail, an impressive field of vision, and a sharply critical eye,” wrote David Cole, author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism.

Here are the two definitive books on how the U.S. Constitution was crafted in 1787. Miracle at Philadelphia, first published in 1966, is the classic account of the Constitutional Convention, the most authoritative and comprehensive work until 2009 with the publication of Plain, Honest Men. Neither book is a flag-waving glorification of the document or the men who made it. (Click on the book images to see more details or to purchase.)

Plain, Honest Men: The Making of the American Constitution
By Richard Beeman
Random House 2009, 544 pages
$19.80 hardcover, $14.99 Kindle

Beeman gives a day-by-day account of the convention, where the framers were under great pressure to succeed, and to do so in total secrecy because their mission was seditious under the Articles of Confederation. Amid tensions between opposing interests, agreements were made, compromises were reached, votes taken, and a work of genius—the world’s longest-lived written national constitution—emerged. Publishers Weekly said, “Beeman gives each decision, each vote, the weight it deserves and, in brief sketches, brings the delegates alive.”

Miracle At Philadelphia: The Story of the Constitutional Convention May-September 1787
By Catherine Drinker Bowen
Back Bay Books, 1986 (original edition 1966), 346 pages
$5.59 paperback

Bowen draws much of her information from notes and journals of the framers, especially James Madison. It contains vivid descriptions of many founding fathers, including George Washington, Benjamin Franklin, James Madison, Alexander Hamilton, and Gouverneur Morris.