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First Amendment: still under siege at age 209


By Paul McMasters
First Amendment Ombudsman
First Amendment Center


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Robert Corn-Revere

At the time of its conception, the First Amendment was "Article the Third." But by the time Virginia joined eight other states in ratifying the Bill of Rights on Dec. 15, 1791, the first two of the 12 amendments had been discarded and the First Amendment took its place in history. As that guarantee of our most important freedoms reaches its 209th birthday today, there is a little to celebrate and a lot left to wish for.

It has been another year under siege for the First Amendment.

From the halls of power in the nation's capitals to countless communities across the country, elected leaders and ordinary citizens challenge the primacy of free-expression principles and try to trump them with other values they consider more important.

In observance of the First Amendment's 209th anniversary, we asked five eminent First Amendment authorities to help us assess what happened in the past year and what may happen in the year ahead.

Books aren't burned anymore but they're still not safe from the censors. Even the highly popular children's books about Harry Potter were attacked in 31 different communities in 20 states. As lawyer and author Robert Peck observed: "The threats leveled against the Harry Potter books exposed how fragile First Amendment freedoms are." There were also instances of school officials actually taking knives and scissors to pages of textbooks they considered offensive.

Popular radio host Dr. Laura Schlessinger joined the American Family Association, Family Friendly Libraries and the Family Research Council in a campaign to smear libraries as hangouts for pornographers and librarians as a threat to our children.

In Pontiac, Mich., an exhibit on censored art was censored. In Richmond, Va., Gov. Gilmore attacked a photographic exhibit by Sally Mann. And in New York City, Mayor Giuliani tried to withdraw public funds from the Brooklyn Museum of Art over its mounting of a controversial exhibit.

Presidential candidates, the White House, leaders of Congress and four major health organizations ratcheted upward the calls for curbs on media violence. The Federal Trade Commission provided more ammunition in a report highly critical of Hollywood's marketing practices directed at children.

The Federal Communications Commission was pressured to rein in broadcasters with further public-interest obligations and restrictions on election-night projections by network anchors. Media reformers continued to gain support in their criticism of the "corporatization of the media."

State and federal lawmakers trotted out hundreds of proposals for regulating speech on the Internet.

As with other important issues in our society today, most of the news about the First Amendment, good and bad, flows from the courts. During its past term, the nation's highest court took on more First Amendment cases than usual. Among the most worrying:

This spring's decision in City of Erie v. PAP's A.M. was particularly disturbing, according to lawyer and author Rodney A. Smolla. In April, the court upheld an Erie, Pa., ordinance banning nude dancing. "The court extended the 'secondary effects' doctrine by holding that it can be used to justify regulation of speech even in situations in which there is clear evidence that censorship of a disfavored message was a principal intent of those enacting the law," said Smolla.

Rodney Smolla

Syndicated columnist and author Nat Hentoff singled out the Supreme Court's decision in Hill v. Colorado as one most inimical to First Amendment principles and traditions. In this decision, the court upheld the constitutionality of a Colorado law prohibiting anti-abortion protesters from getting within eight feet of anyone within 100 feet of a medical facility. Hentoff disagrees. "The First Amendment applies to everybody — even those handing out pro-life pamphlets and picketing abortion clinics."

There were ominous rulings in the lower courts, also.

Among those cited by Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression: Two federal court decisions sustaining the "virtual child pornography" sanctions in the Child Pornography Protection Act; the circuit court decision sustaining the breach-of-contract claim against "Dateline NBC" for not airing a more positive story than promised, and legal cases in Indianapolis and St. Louis challenging the First Amendment rights of video game users.

Not all the news from the courts was bad, of course.

Smolla said the Supreme Court decision in Santa Fe Independent District v. Doe was helpful, because "the Court extended the principle of separation of church and state with a common-sense understanding of the importance of extra-curricular events such as high school football games in the lives of teen-agers."

Hentoff praised the court's ruling in Boy Scouts of America v. James Dale. In that decision, the court said that New Jersey violated the organization's expressive association rights by requiring it to accept homosexuals as troop leaders. Despite that ruling, Hentoff said, schools and other public institutions have begun to banish Scout activities at their facilities.

"The best thing to happen for the First Amendment during this past year," lawyer and author Robert Corn-Revere said, "is the continuing string of cases recognizing that strong First Amendment protections apply to cyberspace and other electronic media."

Corn-Revere cited as examples the Third Circuit ruling enjoining the Child Online Protection Act, the federal court in Virginia striking down the state Internet censorship law, and the Supreme Court decision in U.S. v. Playboy Entertainment Group, ruling federal regulation of "signal bleed" on adult cable channels unconstitutional.

Outside the courts, there was a smattering of good news for the First Amendment.

The attacks on Harry Potter books sparked creation of a special Web site called "Muggles for Harry Potter." It attracted tens of thousands of mostly young people wanting to learn more about attempts to censor the books they love. This sort of thing "won a new generation of advocates over to First Amendment rights," said Peck. "It forced young people to contemplate free speech in a concrete way that they often articulated in a very sophisticated fashion."

Robert O'Neil

The emergence of some trends promise more problems ahead for the First Amendment.

According to Robert O'Neil, "It's the rapidly burgeoning privacy-protective legislation and administrative measures we need fear in the future — dealing not only with online privacy, but privacy in more traditional forms and media, as well."

A danger that Smolla fears is "that the court will slide into a balancing approach that will weaken First Amendment protections by turning First Amendment disputes into case-by-case weighing of competing interests."

"The worst thing is the continuing pressure to expand censorship by the political branches of government, both at home and abroad," said Corn-Revere. Symptoms of this trend, he said, include proposals by Congress to restrict violent programming and Internet filtering mandates.

Threats to Internet speech come from outside the country, also. A local court in France is threatening the U.S. company Yahoo! with ruinous fines if it doesn't restrict French citizens' access to Web sites auctioning Nazi memorabilia and neo-Nazi paraphernalia. Germany's highest court has ruled that its anti-Nazi propaganda laws can be applied to Web sites outside the country. And the Chinese government has imposed broad restrictions on Internet access. Such developments could have a dramatic impact on Internet content in the United States, despite the First Amendment.

Robert Peck worries that court-sanctioned attempts by law enforcement officials to examine the sales records of books stores will expand. The Tattered Cover Book Store in Colorado and a Borders store in Kansas both are fighting such efforts right now. "This approach to law enforcement is part of the trend that treats ideas as dangerous, which is the notion behind the attacks on violent expression, and could amount to a resurgence of support for the bad-tendency doctrine."

"As we continue to lose our First Amendment moorings as a people and think in terms of effects," said Peck, "we will see the bad tendency doctrine revived — even if under a new name. As a result, we will see increased authority to curb speech that supposedly leads people astray."

Said Corn-Revere: "I am concerned with maintaining the ability to keep up with the onslaught of new restrictions on speech," adding, "I am also troubled about the possibility of litigant exhaustion — that the sheer weight of new restrictions can dampen the will to continue to fight."

Behind all of these assaults and their continuation is a woeful lack of understanding of and knowledge about First Amendment rights and values, according to Hentoff. "The ignorance of the public when it comes to the First Amendment is because of the way it is taught in the nation's schools," he said.

Concern over privacy, protecting children and media violence undoubtedly will continue to be raised as justification for further attempts to restrict speech, whether in film, music, television, the Internet or video games.

The First Amendment seems to be caught between grass-roots organizations and national political leaders. Both groups sense they can tap into a deep resentment of ordinary people who are fed up with speech they consider indecent, violent, hateful or otherwise offensive. They make a calculation that even though they may lose in a court of law they will win the court of public opinion.

As long as these conditions persist, the First Amendment's birthday will continue to be less about blowing out candles and more about putting out fires.

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