There has been some debate in federal court and among my journalistic colleagues recently about what kind of a reporter I am. Actually, Studs resolved this issue a while ago when he characterized—and honored—me with a term he uses to describe himself. He called me “a guerrilla journalist.” Unfortunately, this term has not, at least so far, carried the day. I have been described as “an advocate,” as “one-sided,” as obviously “biased.” In their most recent brief, City lawyers stopped just short of calling my work spam. They referred repeatedly to something distasteful called “internet submissions.”

This exercise in taxonomy has been both amusing and somewhat dispiriting. After decades of writing, after thousands of pages published in books and magazines, I find myself being stripped of my identity as a journalist because the government doesn’t like the content of what I have written. I’m not sure what to make of it all. Years ago, the novelist Cynthia Ozick, who was an early champion of my work, overheard me describe myself as a journalist. “You’re not a journalist,” she corrected me sharply, “you’re a writer.” Perhaps that’s the problem. In any case, journalism is not for me, as it is for Ozick, a lower life form. It’s my vocation. And I have never tried harder to honor its highest standards than in the reporting on police abuses that provoked the legal confrontation with the City over my notes

That confrontation began on a Monday morning in June of 2005, when my doorbell rang at 6:50 am. The man at the door was apologetic. As he handed me a subpoena, he explained that he comes early because it improves the odds he’ll find people at home. He looked relieved, when I assured him I’m an early riser.

The subpoena had been issued by the City of Chicago in connection with a federal civil rights case that arose out of my reporting. The suit had been brought by the Mandel Legal Aid Clinic of the University of Chicago Law School on behalf of Diane Bond, a resident of the Stateway Gardens public housing community who alleges she was repeatedly abused by a team of gang tactical officers known on the street as “the skullcap crew.” The subpoena demanded that I produce copies of any notes, writings, audiotapes or videotapes regarding twenty-four named individuals (members of the Stateway Gardens community and police officers, as well as an expert witness for the plaintiff and her attorney), “and/or any allegations of misconduct by any police officer at . . . Stateway Gardens.”

I will return later to the particular circumstances of the Bond case and the subpoena. For the moment, the point I want to make is that there was never any doubt in my mind about resisting the subpoena. Others assume it was a difficult decision. It wasn’t. I had little choice in the matter because of choices I had already made in the course of my life.

In a way, this instant clarity—more visceral than analytic—was surprising. My father, a law professor at the University of Chicago, used to tell his students in the opening class of his course on the First Amendment that “to gain insight” into a free speech issue “it is necessary to have sympathy for the grievance against speech.” That is one of the several meanings of the title of this talk. To get traction in thinking about freedom of speech, you must extend your sympathetic imagination to the advocate of censorship. You must ask why someone as smart and morally awake as you are would support censorship. Too often civil libertarians talk as if First Amendment issues are inevitably confrontations between the enlightened and the benighted.

I had occasion to deeply absorb my father’s style of approach. He died in 1974—at roughly the age I am now—while working on a large, ambitious intellectual history of the First Amendment at the level of the United States Supreme Court. I spent more than a decade completing the manuscript and preparing it for publication. It was published in 1988 under the title A Worthy Tradition: Freedom of Speech in America.

A major theme of the book, reflected in its title, is that the American experience under the First Amendment has yielded something more than a body of legal precedents. It is a tradition of the society. Several things follow from this orientation.

The tradition, as my father described it, is animated by an ongoing dialogue between the society and the courts about the meaning of the First Amendment. It is a tradition that takes the form of arguing about the content of the tradition. In his view, freedom of speech is “almost an absolute.” It is highly unlikely in any instance that the argument for regulation will prevail. That is not, however, “an a priori conclusion known in advance of the concrete challenge but a result to be won by sweat in the individual case, time after time!” He would, I think, have approved of the way the Freedom Museum exhibits pose questions rather than assert answers.

Viewed as a tradition, the meanings of the First Amendment in American life are not confined to what the Supreme Court says at any given moment. This tradition, as T. S. Eliot said of literary tradition, is “a development which abandons nothing en route.” The narrative matters as well as the precedents. At various junctures in our history, a heightened sense of the nation’s vulnerability in a dangerous world has brought on attacks of constitutional amnesia. At such times, national security concerns have eclipsed our core values, yielding legislation, administrative procedures and judicial decisions that cut deeply into constitutional freedoms. These debacles, every bit as much as moments of insight and clarity, are assets of the tradition. In order to grasp the moral, you have to know the story. We need, my father wrote, quoting Judge Learned Hand, “to have a sense of our ‘hardbought acquisition in the fight for freedom.”

It is also important to recognize that through much of our history, this tradition of protecting dissent has itself been a dissenting tradition. Not only have the cases largely arisen from the energies of those challenging government policies or majority norms, but much of the judicial insight and eloquence invested in the tradition has been uttered in dissent. This is paradoxically at once evidence of the fragility of the tradition and evidence of its power to nourish and embolden us in dark times.

Finally, I have had occasion to learn that a living tradition is a demanding discipline. As I shaped the manuscript of A Worthy Tradition, I was in turn shaped by the effort. I came to understand in my marrow, as my friend the poet A. K. Ramanujan once said, that a tradition is “not a birthright,” that we must, as another poet put it, labor to possess what we have inherited.

My legal confrontation with the City has brought me back to my father, to the First Amendment, to the effort that consumed my youth. This has been like opening a long sealed time capsule, bursting with perception and emotion. It has been a bracing—and, in some respects, a startling—experience.

I am struck, above all, by the intellectual excitement that animates my father’s voice. This is, of course, an expression of his sensibility, but it also reflects the historical moment. Writing in the early 1970s, he saw clouds on the horizon. An ardent reader of Proust, he joked about titling his book “Remembrance of Things Past.” Yet the dominant note is celebration of the process, however haphazard, by which constitutional adjudication was, in his view, clarifying the nation’s purposes to itself.

At the center of the book and at the center of First Amendment doctrine as my father understood it is the Supreme Court’s 1964 decision in New York Times v. Sullivan in which Justice Brennan speaks of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” and declares that “the central meaning of the First Amendment” resides in the proposition that the Sedition Act of 1798 was unconstitutional. In other words, seditious libel—criticism of government—cannot in America be made a crime.

My father strongly associated the Court’s holding in New York Times case with the work of Alexander Meiklejohn, a man he greatly admired. Meiklejohn, a philosopher, had served as dean of Brown University and president of Amherst College. In 1948, he gave a series of lectures at the University of Chicago that were published under the title Free Speech and its Relation to Self-Government. He argued that we need the First Amendment—we need full access to all relevant information and arguments—in order to discharge our roles as self-governing citizens.

After New York Times v. Sullivan was handed down, my father asked Meiklejohn what he thought of the decision. “It is,” the 92-year-old Meiklejohn said, “an occasion for dancing in the streets.”

II

Today, at this grim moment in our history, it’s hard to imagine striking that note of celebration over a judicial decision that expands our freedoms and clarifies our purposes. Some four decades after New York Times v. Sullivan, we stand on the far side of a fateful threshold. The passage of the so-called detainee bill two weeks ago is a defining moment. Among its features:

• Anyone the president places within the elastic category of “illegal enemy combatant” is subject to indefinite detention with no right to challenge their imprisonment, with no possibility of appeal.

• Such an individual, your neighbor perhaps, can be subjected to any coercive interrogation methods the president secretly determines are permitted. As Dahlia Lithwick observed in Slate, the abuses depicted in the Abu Ghraib photographs have in the course of the last two and a half years gone from being a scandal—“a searing reproach to virtually any American with a soul and a conscience”—to being authorized by the law of the land.

• The definition of torture is exceedingly narrow. For example, sexual assault falls outside the definition.

• Evidence obtained by means of coercive interrogation methods is legally admissible.

• Judicial review of the various components of this system has been narrowed to the vanishing point.

Choosing its words carefully, the editorial board of the New York Times condemned this legislation as “a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.”

Even the current Supreme Court, so deferential to executive power, may be compelled to strike down this law. And the Administration’s use of it for short-term political purposes may backfire. Yet we should not allow these possibilities to obscure the gravity of what has happened and the questions with which it confronts us.

This legislation is the product of our political system. What does its passage say about our performance of our roles as self-governing citizens? What does it say about the quality of our public discourse? What does it say about the vitality of the First Amendment tradition? Have we become the sort of society, vilified in the long view of history, that tolerates the intolerable?

The tradition, as I said, is informed by our debacles. Can we draw some light out of the current darkness? Does our situation, in its extremity, help us to see more clearly and understand more deeply the purposes of the First Amendment? I believe it does.

The question of freedom of speech during wartime stands at the center of our constitutional experience under the First Amendment. It goes to the heart of the matter: the relationship between democratic discourse and force, between speech and violence. Yet there is, I think, a sense in which we have gotten this question wrong.

The prevailing framework of analysis treats the threats posed by our enemies as the rationale for restricting First Amendment freedoms. War is seen as a national emergency requiring that we suspend business-as-usual. My father characterized this as the “luxury civil liberty” view of the First Amendment. Freedom of speech is all fine and good, we are told, but this is really serious.

It is a mistake to always try to win this argument by demonstrating that the dangers from speech are exaggerated. While this is often true, it is a line of argument that tacitly accepts the luxury civil liberty logic. As my father once observed, it’s easy to be against witch hunts, if witches don’t exist. The challenge is to be against witch hunts in a world that includes witches.

Restrictions on freedom of speech during wartime are inevitably justified in the idiom of ”danger” and “emergency.” These are the right words with which to frame the core question. In light of our experience in recent years, what are the dangers peculiar to war that we most need to be concerned about? What is the nature of the emergency? Chief among those dangers is a clear and present danger that we will be stupefied by the powerful internal logic of war, that we will suffer the self-inflicted blindness that war induces, and that we will as a consequence be implicated in terrible crimes against other human beings, in crimes against humanity.

What is at stake is not simply the need for information, not simply the need for all sides of the argument to be aired. That way of talking puts the matter in too rational a frame. It does not account for the large element of the irrational and mysterious in war, for the sense in which war is something that comes over human societies, for the reality that what deforms public discourse is something deeper and stronger than overbroad or self-serving government censorship. What is ultimately at stake is the need to keep visible the nature of war—the realities of maimed bodies and shattered societies and generations of grief—once we have entered into the powerful gravitational field where it is most difficult to do so.

We have now arrived at the heart of the matter: the terrible vortex of violence and denial at the center of the human condition. Writing in Marseilles and Paris in 1939, Simone Weil in her essay on The Iliad calls it “the empire of force.” War is its ultimate expression, but it also takes other forms. It presides over everyday life in structures of inequality and dehumanizing systems that are ultimately enforced by violence and maintained by willful blindness.

The empire of force depends on our demoralization and our fear. It demands that we not know what we know. That is the nature of denial: we deny what we, at some level, know. (We are simply ignorant of what we don’t know.) You would think that the more extreme a set of social conditions are, the more readily they could be communicated and acknowledged, but for the most part the opposite is true. We deny what we find too frightening and daunting to confront. We deny that which we feel we lack effective agency to change.

In light of our experience, I want to urge on you the proposition that it is precisely in the contexts where we are most disposed to embrace the arguments of power, to make concessions to realpolitik, to have sympathy for the censor that we need to be most skeptical and resistant. Subject to the empire of force, we need the ballast of a robust First Amendment tradition and strong sense of personal vocation as citizens in order to retain our bearings.

This is no time to be sentimental. We need to ask ourselves about the vulnerabilities, the incompleteness, the delusional aspects of the First Amendment tradition. We have much to learn at this moment in our history from other traditions of freedom and human dignity. I am thinking particularly about the tradition of active nonviolence that goes straight at these questions and has everything to do with responsible speech, with resisting violence in the semantic realm, with telling the truth.

We can learn a great deal, I think, from the experience of others who have found ways to live as free men and women, with spines unbent, under cruel and absurd regimes. Vaclav Havel’s essay “The Power of the Powerless,” written in 1978 under glaciated conditions in totalitarian Czechoslovakia, describes a society, all too recognizable, in which citizens have become internal émigrés, divided from themselves, living in the twilight between knowing and not knowing. And he provides recipes for, as he would put it, “living in truth”—for exercising freedom under conditions in which citizenship is degraded.

We tend in this country to talk about political freedom in abstract terms. These other traditions remind us that it is possible to exercise freedom without “having” the First Amendment; and, more disturbingly, that it is possible to “have” the First Amendment without exercising freedom.

III

Against this background, let’s come back to the South Side of Chicago and the Bond case. We have not been as far afield as it may seem. For the case alleges human rights violations—acts of cruelty and abuses of power, sexual and racial abuse, religious desecration—that bear comparison to Abu Ghraib. The series of articles I wrote about the case, under the title “Kicking the Pigeon,” explores the following question:

If a group of rogue police officers operated for years in Chicago public housing with impunity, what conditions would be required to make possible their criminal careers?

The defendants in the case are not only the five officers who made up the “skullcap crew” but also supervisory personnel, including the superintendent of police, and the City of Chicago. The thesis of the case is that the City is responsible for the conditions of impunity under which the individual defendants abused Ms. Bond. It is implicated in their crimes, because it has long known that its systems for supervising, monitoring, and disciplining police personnel are inadequate but has not fixed them.

I am writing a book that arises out of the circumstances of the Bond case. Rather than asking the usual muckraker’s questions—what did they know and when did they know it? where is the paper trail? the smoking gun?—I am asking: how did they go about not knowing? How is not-knowing operationalized? How does it work? This inquiry touches on the code of silence among officers, the way the police department conducts internal investigations, and the way in which our public discourse evades the realities of apartheid justice. It also examines how the massive restructuring of the city in recent years—the razing of high-rise public housing and the construction of so-called “new communities”—shapes what we can see and think, how issues are framed, who is visible and who is not.

This line of inquiry is particularly useful for assessing press coverage of abandoned communities and of the constellation of issues embedded in Mayor Daley’s mantra “gangs, drugs, guns.” Rather than uncritically accept the classic account that freedom of the press serves the public’s right to know, I am asking in this particular context: how does the press contribute to the regime of not-knowing?

The paradox of censorship is that efforts to suppress speech tend to confer visibility and resonance on what is suppressed. That is another meaning of the title of this talk. Yet censorship regimes are not effective through acts of outright suppression. They are effective by inducing self-censorship, by engendering a climate in which people censor themselves. In this connection, I leave you with two questions. Has the City’s pursuit of my notes been a legitimate use of the subpoena power or an effort to enforce not-knowing? And: what lessons will other journalists and news organizations draw from this case?

IV

Our subject this evening has been the cultural and personal, as distinct from the formal legal, resources of freedom. I want to return now to the moment when I was served the subpoena. You’ll recall I was somewhat surprised by the force and clarity of my reaction. It was a passionate inwardly uttered “no.” It was not a thought-out position; it issued from the ground of my being. My father once described the law as “disciplined passion.” It’s a lovely phrase that could be applied to many areas of human endeavor. In a sense, I have spent the last year and a half working to understand, to refine, to defend against challenge, and to make articulate—to discipline—that passionate initial response.

For me, as I suspect is clear, the tradition of freedom of speech is a deeply personal matter, compounded of love and grief, of hope and loss. The themes that have been so fatefully explicit in my life are, I know, powerfully present in many lives. When we say we are a freedom-loving people, the word “love” in that context is not, as I understand it, an abstraction or a rhetorical flourish. It is a matter of desire, of ardor, of personal necessity. It is an active, embodied principle, essential to our identities, our sense of human wholeness, our way of being in the world.

In closing, I will leave you with a question to which I don’t claim to know the answer, or answers, but which demands to be asked: if we don’t love freedom in this way, will we know when we lose it?