David Cole teaches constitutional law at Georgetown University Law Center.

Freedom of Speech
Mightier Than the Sword

By David K. Shipler

Knopf. 336 pp. $28.95

D espite the stern admonition that “Congress shall make no law . . . abridging the freedom of speech,” speech has never been absolutely free. Every democracy must identify where the needs of the collective or of injured individuals justify limits on speech. In recent years, courts, legislatures and executive officials have struggled with many difficult First Amendment questions: how to reconcile the right to engage in political campaign advocacy with the principle that democracy should not be for sale; how to maintain a robust and uninhibited exchange on the Internet while deterring bullying, stalking, fraud and threats; how to protect and inform consumers without interfering with the speech rights of business owners; and whether speech and association can be made crimes in the name of countering support for terrorism.

But freedom of speech involves much more than the headline cases that reach the Supreme Court. We all regularly confront free speech issues in a more general sense in our daily lives. How should a school respond to a student’s or a teacher’s racist, sexist or simply vulgar remark? Who should determine what books are appropriate for English classes in high school? What limits should parents impose on our children’s access to the Internet? Does the demand for tolerance require us to tolerate the expression of intolerant views?

(Knopf)

In “Freedom of Speech,” former New York Times reporter David K. Shipler focuses on such everyday controversies. Over more than 300 pages, Shipler mentions, in passing, only three Supreme Court cases. His interest lies not in First Amendment doctrine but in the dynamics of speech disputes in ordinary life. Those seeking an analytical understanding of First Amendment law will find no answers here. Instead, Shipler offers an on-the-ground, anecdotal portrait of an eclectic and rich mix of speech controversies. He covers local battles over books in schools and libraries; the fate of a politically sensitive play in a Jewish theater in Washington; responses to racially insensitive remarks by public and private figures; and the role of religious organizations in political campaigns.

Shipler is a prize-winning journalist, and the strength of his book lies in his willingness to investigate the facts and his ability to portray vividly the real-life quandaries that people at the center of free speech battles often face. He offers compelling portraits, for example, of two whistleblowers, Thomas Tamm and Thomas Drake. Both men were subjected to criminal investigations for disclosing to journalists information about the top-secret National Security Agency. Tamm was the target of a multi-year investigation, although he was never charged. Drake was indicted for revealing classified information but eventually pleaded guilty only to a misdemeanor when the government’s case collapsed. Through Shipler’s sympathetic depictions, one begins to understand the devastating personal costs that whistleblowers often must bear and to appreciate the courage of men like Tamm and Drake.

A compelling chapter depicts the community of self-appointed guardians who make a business of issuing impassioned, McCarthy-like warnings about Islamist conspiracies to take over the United States. Shipler introduces us to Frank Gaffney Jr. of the Center for Security Policy; John Guandolo, a former FBI agent; and Steven Emerson, who runs the Investigative Project on Terrorism Web site. All maintain that the Muslim Brotherhood is engaged in an international conspiracy, through a variety of front organizations, to insinuate itself into American life and achieve Islamist world domination. Shipler attends an all-day training session run by Guandolo on how to advance these anti-Muslim views in the media, and he tracks down the sources these so-called experts rely upon to back up their overheated claims.

He finds that the central document underlying most of the claims is a 15-page “explanatory memo” found in an FBI search of an Annandale, Va., home in 2004. Signed by Mohamed Akram, a member of the Palestine Committee of the Muslim Brotherhood, it describes the Brotherhood’s goal as “a kind of grand Jihad in eliminating and destroying the Western civilization from within” and includes a list of “our organizations and the organizations of our friends,” naming some of the most well-established, mainstream Muslim groups in the United States. Gaffney calls it “the Rosetta stone for the Muslim Brotherhood.” Shipler shows that in fact the document is nothing more than a thought piece drafted by a single individual in the early 1990s, and that there is no evidence it was ever considered, much less adopted, by the Muslim Brotherhood or anyone else. Shipler’s research shows that other supposed evidence of the grand Islamist conspiracy is similarly speculative.

This chapter, much like the book as a whole, illustrates the freedom of speech at work. Gaffney, Guandolo and Emerson are, of course, exercising their First Amendment rights, but in doing so they pose a real threat to the political freedoms of others, as they tar with unjustified suspicion Muslim civic organizations that are engaged in the promotion of civil liberties, religious freedom and Muslim identity, not terrorism. Shipler’s response is not to call for the suppression of the conspiracy theorists’ speech, but simply to demonstrate that their claims are vastly exaggerated and unsubstantiated. In short, he answers their speech with his speech. An objective reader cannot help but come away with a better understanding of the truth. This is the freedom of speech at its best.

At times, however, Shipler’s account is weakened by his own biases. Perhaps because of his career as a journalist, he is so partial to whistleblowers that he barely acknowledges the very real harms that unauthorized disclosures of secrets can sometimes inflict. Whistleblowing has, to be sure, revealed many troubling secrets and exposed government fraud and criminality. But there is such a thing as an irresponsible leak, and not all criminal investigations and prosecutions of leakers are inherently misguided.

To take one example, Shipler writes briefly of an investigation into an Associated Press story disclosing that the CIA had a double agent within the inner circle of al-Qaeda in the Arabian Peninsula and had thereby foiled a terrorist attack. The story served little purpose in advancing public debate and undermined our ability to counter an organization that posed a continuing threat. Yet Shipler’s account barely mentions the potential dangers of the disclosure and instead criticizes the government for undertaking “the most extensive sweep of journalists’ records in American history.” What did that entail? Obtaining records of the phone numbers called by the AP offices involved in writing the story during the relevant time period. What Shipler does not say is that prosecutors did so only after first exhausting all other alternatives, having interviewed more than 500 witnesses over eight months without finding the perpetrator. Once the phone records were obtained, the perpetrator, an FBI agent, was identified in short order, and pleaded guilty not only to unlawful disclosure of secrets but also to possessing and distributing child pornography. Yet Shipler presents this justified response to a wholly unjustified leak as government overreaching.

It does not help that Shipler follows this story by stating that “reporters who are asked to suppress a story cannot accurately predict the impact of doing so or of going ahead and publishing. Nor should they try.” That suggestion — rejected by every news organization of which I am aware — implies that keeping information secret is never warranted. While governments certainly tend to overclassify information, it hardly follows that there are no legitimate secrets. Just as free speech is not an absolute, so the right answer is not always to disclose.

On this subject, at least, Shipler’s investigation of free speech would have been more nuanced had he acknowledged the truly difficult trade-offs that the freedom of speech often presents. But overall, Shipler adds valuable and illuminating detail to the ongoing story of America’s First Amendment.