First Amendment: still under siege at age 209
By Paul McMasters
First Amendment Ombudsman
First Amendment Center
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
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
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.
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
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
Outside the courts, there was a smattering of good news for the First
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
The emergence of some trends promise more problems ahead for the First
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
"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
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
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
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
Recent Ombudsman columns
Is the press guilty of treason?
Many regard robust exercise of First Amendment rights by either the press or the people as a dangerous problem in the fight against terrorism.08.08.02
The Supreme Court's 'secondary' thoughts
While Alameda Books ruling appears to bolster efforts to regulate adult businesses, several justices express concern that evolving secondary-effects doctrine threatens First Amendment.07.30.02
Putting corporate security before national security
Government is asking private citizens to take on more responsibilities, but is considering bribing private businesses to enlist in war on terrorism.07.22.02
Congress must champion access
Government information must be branded as crucial to democracy, to responsible governance and to freedom.07.11.02
Denial of access shushes the democratic dialogue
Some restrictions are warranted to guard against attack, but as government demands more information of Americans, it's asking Americans to demand less information from government.12.12.01
Browse more Ombudsman columns