The First Amendment at the Beginning of a New Millennium
INTRODUCTION
The 45 words of the First Amendment haven't changed since their adoption in 1791. Yet they are called upon to help guide a society that is radically different from the one in which the Founding Fathers lived. In this century, the First Amendment has been stretched and reinterpreted as the government has become involved in nearly all spheres of expressive activity -- campaign financing, federal funding of the arts, and regulation of mass media, to name but a few.
In recent years there has been a counter-trend, in which government intervention and involvement has been scaled back in areas such as regulation of industry. Yet at the same time, there are calls for additional forms of government activism, such as measures to control the content of the Internet. There is a need for evaluation of where the five freedoms now stand. This includes a look at trends in court rulings, legislation, executive branch policies, scholastic research and actions by non-governmental parties which impinge on these freedoms, before corrective action can be taken. This project will also survey public attitudes, which play a key role in determining the viability of the Five Freedoms.
This Freedom Forum project will take on that task in a systematic way. As a way of getting started, we have prepared this overview. It is not meant to be comprehensive or definitive. Instead, we are distributing this document to invite your comments on the state of the First Amendment today, good or bad. Your comments will be important to the completeness of the final report, which will include our own research and a national survey of public opinion. The report will be released at a national conference on the state of the First Amendment next year.
The following memo presents an overview of this project. It is not meant to be comprehensive or definitive. We are distributing this document in order to invite your comments on the state of the First Amendment today, good or bad. Taking into account your reactions as well as additional research of our own, we will prepare a final report that will be ready for distribution in late spring.
Please send your comments on this memo to:
Donna Demac, Esq.
Fellow
The Freedom Forum World Center
1101 Wilson Blvd
Phone: 703-284-3515/Fax: 703-284-3519
or e-mail Donna at : Ddemac@freedomforum.org
CAUSES FOR CONCERN ACROSS THE FIVE FREEDOMS
I. FREEDOM OF SPEECH
A. Regulation of Online Speech
One of the biggest threats to freedom of speech concerns a form of communication that is quite new and that may very well become the dominant mode of expression in the years to come--online speech. Prompted by some highly publicized cases of children being exposed to pornographic material online, some legislators and other policymakers have been promoting legislation that would subject the Internet and commercial electronic services to forms of regulation that cannot be applied to print media.
The most significant initiative in this area has been the Communications Decency Act (CDA), which was enacted by Congress as part of the Telecommunications Act of 1996. The CDA contains three separate provisions that raise troubling constitutional questions. It criminalizes the transmission of "any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent, with intent to annoy, abuse, threaten or harass another person." It criminalizes the same broadly termed expression if the person transmitting knows the receiver to be under 18 and also criminalizes this expression if it depicts or describes sexual or excretory activities or organs in a manner that the communication is available to anyone under the age of 18. In each situation, the violating expression is measured on the basis of contemporary community standards.
While the courts have allowed government to regulate obscene speech, the attempt to bar "filthy and indecent" expression is seen by many civil libertarians as a dangerous encroachment on First Amendment rights. Newt Gingrich had this to say: "My bias is against trying to censor the Net. In the long run, the Net as a community may have to develop a further sense of its own identity rather than having it done by Congress."In June 1996, a three-judge federal appellate panel in Philadelphia granted an injunction against the implementation of the CDA, stating that, "as the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion." The CDA also has been enjoined by two other courts, on the grounds that it is unconstitutional.
This has not deterred those who are promoting regulation of online speech. They are putting their hopes in the Supreme Court, which is expected to rule on the issue later this year. At the same time, various state governments have moved to pass laws regulating online speech. New York passed a bill that makes online service providers liable for the content of material containing nudity or images of sexual conduct sent across their services. Recently, Georgia enacted a law that critics dubbed "the Internet Police Bill," which prohibited online users from using false names or communicating anonymously. The law, however, was ruled unconstitutional by a federal court. The battle over online speech is far from over, however at the end of the last session of Congress, Sen. Orin Hatch sponsored legislation that criminalized online child pornography produced digitally.
Apart from the CDA, there have been numerous attempts by local officials to punish the purchase and transmission of sexually explicit material. For example, in 1993 Robert and Carleen Thomas were sent to prison by a Tennessee court on a number of obscenity charges for distributing sexually explicit images online and in videocassettes--even though they previously had been investigated in California, where local prosecutors dropped the matter, concluding the items would be legal in that state. Attempts to apply restrictive local community standards to material transmitted all over the world via the Internet could be fatal to electronic speech.
B. Attempts to Regulate Pornography
The CDA emerged out of a climate during the past decade in which an alliance of religious and political conservatives and some feminists has attempted to bring about government regulation of pornographic material (in print and other media) that does not qualify as obscene. This alliance has sought to use local ordinances -- such as a highly publicized one in Indianapolis -- to provide protections for those supposedly harmed by pornography.
A federal appeals court upheld the lower court rejection of the Indianapolis law --promoted by Catherine MacKinnon and -- and the Supreme Court declined to review that holding.
But lawmakers persist. In 1996, Congress enacted The Military Honor and Decency Act which bans sexually explicit publications, such as Penthouse and Playboy, from military bases.
C. Curbs on Indecency in Government-Funded Art
The move to empower government to regulate indecent expression has also emerged with regard to federally funded art. In 1965, Congress created the National Endowment for the Arts (NEA) with the intention of enhancing American culture by funding diverse forms of creative activity. Congress did so, however, without indicating the basis on which federal grants to artists should be awarded. The NEA, left to its own devices, ended up supporting avant-garde as well as more traditional artistic endeavors.
During the 1980s, a number of conservative members of Congress began protesting the funding of what they saw as outrageous forms of art, including a homoerotic exhibition of Robert Mapplethorpe photographs and a work entitled "Piss Christ" by Andres Serrano. Led by North Carolina Senator Jesse Helms, Congress in 1989 passed an amendment to the NEA's charter requiring the endowment to take into account "general standards of decency and respect" when making grants to artists.
Karen Finley and several other artists who had been denied funding brought suit in federal court arguing that the amendment violated their First Amendment rights by requiring the government to decide which forms of artistic expression are acceptable.
Both a federal district court and an appellate panel ruled that the revision to the NEA charter was unconstitutional. Unfortunately, neither of these decisions resolved the issue of what criteria the federal government could use to select grantees for federal funding. What is needed are criteria and procedures, in order to avoid even the appearance that the government could exclude expression it disliked.
Despite the legal uncertainties, the critics of the NEA have succeeded in intimidating endowment officials and causing an overall decline in federal arts funding. There are also signs that legislators will continue to seek forms of content regulation that might pass judicial scrutiny.
D. Electronic Curbs on Indecency in Television Programming: The V-Chip
Along with rising concern about indecency online has come an outcry against the supposedly objectionable content of many television shows viewed by children. Rather than simply depending on parents to regulate the viewing habits of their offspring, the federal government has been focusing on a technical fix, accompanied by "voluntary" industry or, if necessary, government-imposed ratings that would block reception of certain programs.
This is the V-Chip. The idea is that television networks would be compelled to give ratings to their programs similar to the voluntary system used by the motion picture industry. The device would allow parents to block reception of programs with ratings that indicated a certain level of supposedly objectionable content. The First Amendment concern in relation to this comes not from the V-chip itself, but from the process of devising and implementing a system called for in the law.
A leading advocate of the device is President Clinton, who stressed the idea in his 1996 State of the Union address. Less than a month later, Congress heeded the President's call and included a provision entitled "Parental Choice in Television Programming" (known as the V-Chip law), when it passed the Telecommunications Act. Interestingly, the bill omitted mention of the content to be rated and who was to do the rating. The mechanism for rating programs and the broadcasting of the ratings were expected to result from public pressure on programmers to voluntarily rate their programs and the threat of the Federal Communications Commission establishing ratings guidelines, on the chips were mandated in new television sets.
Despite President Clinton's assurance that this mode of control is not censorship, there have been criticisms that the legislation amounts to an intrusion by the federal government into television programming. The law uses the prospect of government pressure to convince broadcasters to voluntarily rate their programs. If the Federal Communications Commission (FCC) determines that program distributors have not, within one year after passage of the bill, established rules for rating TV programming that contains sexual, violent or other indecent material, and have not voluntarily agreed to broadcast such ratings, then the FCC is empowered to set its own guidelines, based on recommendations of a citizens' advisory commission. It can also do so if it decides that the guidelines of the broadcasters are not acceptable.
At the start of 1997, television industry executives involved in developing these ratings announced a proposed system comprised of six broad, overlapping categories:
Even before formally announced, these categories were denounced by officials and leaders of parents organizations. Representative Edward Markey, a co-author of the underlying legislation, argued that the suggested categories would not give parents clear information. Specifically, the TV-PG rating, in which most programs would fall, Rep. Markey said, was a vast, undifferentiated category which really stood for Parents Give Up. Although meant to be used with the V-chip, which would not be available for at least two years, the early controversy suggested that the FCC might ultimately impose the mandated ratings system, after all.
This complex system raises numerous First Amendment problems. It is not clear that there is a "compelling state interest" to impose this system, nor that there are no "less burdensome" alternatives -- the usual tests that such a law must meet. This is especially so in light of the fact that the stated aim of the law is not to stop television violence but, rather, to empower parents to better control what their children watch. Moreover, this effort by the federal government to influence media content is likely to be challenged as the type of censorship prohibited by the First Amendment.
E. Hate Speech
Calls for hate speech regulation are based on the notion that certain expression denigrates its targets, who are seen as victims in need of protection. Curbs on hate speech are also seen as a means of enhancing the power of the racially oppressed and other less advantaged groups, by putting these groups on an equal footing.
Two federal court decisions addressed speech codes directly. In Michigan in 1989 and in Wisconsin in 1991, courts made clear that the First Amendment renders restrictions on speech -- in these cases restrictions on expression of racist ideas and views -- unconstitutional.
The only Supreme Court ruling to date on this issue reversed a Bias-Motivated Crime Ordinance of St. Paul, Minnesota. The ordinance outlawed placing on public or private property words and nonverbal expression which a person knows "or has reason to know" will arouse anger or resentment related to "race, color, creed, religion or gender."
Lawyers representing teenagers who had been arrested for placing a home-made cross inside the fenced yard of a black family challenged the ordinance as being overly broad and content-based. The Court agreed that the ordinance was unconstitutional. It only targeted expression meant to provoke anger on the basis of "race, color, religion or gender." It did not touch upon hostilities regarding political affiliation, homosexuality and many other views. Moreover, its practical operation, the Court stated, could be used as the basis of content discrimination, for it banned otherwise permissible speech solely on the basis of the subjects addressed in the ordinance. The Court noted that content-based regulations such as this one marked a turning away from the foundations of democratic theory, which regard robust, even nasty, debate as essential to self-government.
F. Persecution of Gays in the Military
Since the early 1990s there has been a growing uproar over the federal government's policy toward homosexuals in the armed forces. In 1992, then-presidential candidate Bill Clinton made a campaign promise to lift the ban on gays in the military. Once elected, however, Clinton bowed to fierce opposition from military and political leaders and backed away from that promise.
At the Administration's urging, Congress in 1993 passed new legislation based on the principle of "don't ask, don't tell, don't pursue." The policy in no way legitimizes homosexual conduct. Instead, military officials are not supposed to ask servicemen and servicewomen about their sexual orientation. If, however, a member of the military makes a statement indicating a homosexual orientation, then that person is subject to sanctions and possible expulsion.
This is a First Amendment issue because people are being punished for a form of speech -- sharing a truth about themselves. The policy sets up a presumption of homosexuality when a statement of homosexual orientation is made by a servicemember. The servicemember must then come forward with evidence to rebut the presumption at an administrative hearing. In March 1994, one day after the Navy put the new policy into effect, Lt. Paul G. Thomasson sent letters to four admirals for whom he worked stating "I am gay." The Navy subsequently convened a board of inquiry; Thomasson refused to present evidence to disprove the statement and was subsequently discharged. His eventual appeal to the Supreme Court framed the issue as "whether the Government may restrict the freedom of an accomplished and dedicated military officer to utter a fundamental statement about who he is." Though Thomasson was not granted review by the Supreme Court, other challenges are forthcoming.
II. FREEDOM OF THE PRESS
At this time, the press is facing a number of serious problems, including legal challenges which are changing the way in which the press goes about gathering and disseminating the news. Big companies such as Philip Morris and Unilever have made aggressive efforts to inhibit information gathering through libel suits and the pursuit of court restrictions preventing the publication or airing of information. The press must also respond to an ongoing succession of gag orders and questions regarding cameras in the courtroom.
Cameras in the Courtroom
There is an inherent tension between the freedom of the press granted by the First Amendment and the right to a fair trial granted by the Sixth. Which should get precedence: the public's right to know or the need to limit publicity that could undermine the presumption of innocence?
As the law stands today, there is nothing in the Constitution that inherently prohibits electronic coverage of courtroom proceedings. Nor, however, is there a First Amendment standard that mandates electronic access in the courtroom. The Sixth Amendment assumes the right to a public trial, but this does not mean, according to the Supreme Court, that the press is automatically entitled to camera access. While the law has changed little with regard to electronic media, the technology has changed dramatically, making the physical presence of cameras in the courtroom less obtrusive. The evolution of technology also has spurred suggestions that there be a presumptive right of the electronic media to have access to judicial proceedings.
There is much to say in favor of strengthening this right. One might argue that televised coverage of courtroom proceedings is, in effect, an extension of an individual's right to a fair and public trial. Furthermore, televised courtroom coverage encourages public interest in and understanding of the judicial system. Without cameras, insightful debate between laypersons interested in major cases such as the Simpson trial would be stifled. Limiting television access infringes on the public's right to such information.
III. FREEDOM OF RELIGION
Regulation of Religious Activity
The First Amendment policy on religion has two aspects: it forbids government action that aids or gives preference to one religion over another (known as the Establishment Clause), and it bars the government from interfering with the free exercise of religious belief.
Increasingly, proponents of religious freedom have been arguing that the hands-off aspect of the Establishment Clause ends up undermining religious freedom when it results in policies such as limits placed on prayer in public schools.
Since the Supreme Court ruled in 1962 that a school had violated the Establishment Clause in the First Amendment when it required students to recite a (nondenominational) prayer, there have been continual attempts to bring religion into the public schools. Efforts to comply with the Court's ruling, yet bring back religion, have included prayer at school graduations, after-school religious activities and religious celebrations linked to school holidays. Generally, these attempts have not been allowed, due to judicial concerns that the union of church and state can lead to bitterness and suppression of other's freedom to worship -- or not -- as they choose.
Delaware, Alabama, Tennessee, Georgia, Arkansas and Mississippi have passed laws allowing school prayer at "noncompulsory" school assemblies. In November of this year, the Court refused to hear debate on Mississippi's School Prayer Statute, which permitted student-led prayer at both compulsory and non-compulsory school events. A lower court judge had determined that the law was unconstitutional, as its purpose was the advancement of religion, in violation of the Establishment Clause.
Outside the educational context, religious advocates have taken an assertive stance with regard to court rulings allowing government to place restrictions on religious activity. The flashpoint here was the 1990 ruling by the Supreme Court in Employment Division v. Smith. This case concerned a policy by the state of Oregon to deny unemployment benefits to workers who had been discharged because of their use of peyote, a controlled substance, for religious purposes. The Court held that Oregon had not violated the religious rights of the workers because its policy against illegal drug use was essentially neutral toward religion. A week later, the Court, relying on its decision in Smith, vacated a Minnesota Supreme Court decision concerning an Amish farmer who objected on religious grounds to the requirement that he use a bright orange triangle on the back of his horse-drawn buggy.
Alarmed by the Smith decision and related rulings, proponents of religious freedom prevailed upon Congress to enact the Religious Freedom Restoration Act of 1993 (RFRA). Clearly, the decisions immediately following Smith showed a less protective approach to free exercise claims, and many felt the only way to protect free exercise was through legislation. The purpose of RFRA is to restore the "compelling interest test" and to guarantee its application in all cases where free exercise of religion is substantially burdened.
RFRA accomplishes its goal by requiring that if the government is to substantially burden a person's exercise of religion, it may do so only if such action (a) furthers a compelling governmental interest and (b) is the least restrictive means of furthering that compelling governmental interest RFRA basically overrules the Supreme Court by mandating the burden on the government to prove compelling interest before infringing on freedom of religion. Furthermore, RFRA mandates how it is to be interpreted by the courts, letting courts know that nothing in the Act is to be construed as in violation of the Establishment Clause of the First Amendment.
The enactment of RFRA has led to mixed results. The legislation's passage did not mean an automatic victory for free exercise claims. Pro-life abortion protesters have brought claims under RFRA, but so far all of them have lost. By contrast, a Michigan appellate court following RFRA upheld a Catholic school's policy to hire only teachers that are Catholic.
The constitutionality of RFRA will ultimately be tested in the Supreme Court when it hears City of Boerne v. Flores. The federal district court in Flores declared RFRA unconstitutional as a violation of the doctrine of separation of powers; however, the Fifth Circuit reversed, holding that RFRA is constitutional. Should the Supreme Court rule RFRA unconstitutional, it could signal a return to the standards set forth in Smith.
IV. & V. RIGHTS OF PETITION AND ASSEMBLY
Strategic Lawsuits Against Public Participation
Americans tend to believe that this is a free country and that there are no restrictions on one's participation in public life. One significant exemption to this principle is the growth of what are known as Strategic Lawsuits Against Public Participation, or SLAPP suits.
These are forms of litigation brought by individuals and institutions to intimidate their critics. In recent years, SLAPP suits have been brought against large numbers of community activists to counteract their protests relating to environmental hazards, zoning policies, rent increases and other issues. Although such litigation, which usually takes the form of libel claims, often ultimately fails in court, the suits frequently discourage activists by getting them embroiled in expensive and time-consuming legal proceedings.
Nine states (California, New York, Washington, Rhode Island, Oklahoma, Nevada, Minnesota, Massachusetts and Delaware) have moved to counteract SLAPP suits by passing laws that provide immunity for citizens exercising their rights of petition or free speech. SLAPP suits, however, continue to be used in other states to chill dissent and undermine Constitutional rights.
Side Effects of Antiterrorism Legislation
A rash of tragic incidents such as the bombing of the World Trade Center in New York City, the destruction of the Alfred P. Murray Federal Building in Oklahoma City, and the planting of an explosive device during the summer Olympics in Atlanta have created a new climate of anxiety about terrorism. In its zeal to deal with the problem, the federal government has enacted legislation that ends up threatening First Amendment freedoms.
The main legislative initiative has been the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The most controversial aspects of the law are the following:
As bad as AEDPA is, the administration was actually pushing for more severe measures, such an extension of the federal government's wiretap powers and the right to order phone companies and other communication providers to produce records in foreign counterintelligence cases. The administration is also pushing for wider powers to fight domestic terrorism to go along with those provided by AEDPA to deal with foreign threats.A provision making it a crime for anyone to provide "material support" to the activities of any foreign group designated by the Secretary of State as "terrorist." The law fails to define what "foreign" means for its purposes, and the ban extends to certain activities that are lawful or humanitarian. Thus, the law, for example, criminalizes contributions to a hospital funded by members of a designated "terrorist" group. Additionally, the designations to be made by the Secretary are not subject to any meaningful judicial review. When faced with a challenge to a "terrorist" designation, the Secretary of State may state that the reasons for the designation were based on a classified record, making review virtually meaningless. A provision denying visas to foreigners on the basis of membership in designated "terrorist" groups, even if the foreigner has never engaged in any terrorist acts. Denial of a visa based on membership in an organization effectively constitutes a bar based on political ideology rather than past acts. Such visa denials amount to a resurrection of the controversial McCarran-Walter Act, which had come to be seen as an infringement of the First Amendment rights of U.S. citizens as well as visitors. A follow-up bill, the Illegal Immigration Reform and Immigration Responsibility Act of 1996, makes it even more difficult to challenge the "terrorist" designation and makes speech with the purpose of inciting violence against the United States grounds for barring the issuance of a visa. AEDPA also sets up a special court to handle deportation proceedings of suspected members of "terrorist" groups. The court may review a secret record of the State Department, but the person in question is only entitled to a summary of the record. The court may deport a foreigner based on the secret record while never charging the foreigner with criminal activity. Another disturbing aspect of the new law is the repeal of the Edwards Amendment, which prohibited the FBI from opening terrorist investigations based solely on activities protected by the First Amendment. For example, persons attending a public speech by a political figure designated as "terrorist" could find themselves the target of FBI investigations.
CONCLUSION
The preliminary conclusion of this overview is that there are many reasons to be concerned about the vitality of the First Amendment as we approach the 21st Century. Government policymakers continue to lose sight of the Five Freedoms in their zeal to find solutions to problems such as terrorism and exposure of children to pornography. At the same time, there is a tendency in public opinion to go along with or to provoke such policies.
One can take solace, however, in the fact that the federal courts -- up to and including the Supreme Court -- continue to show a great deal of respect for the Five Freedoms. Most misguided legislative forays against the First Amendment are overturned.
Yet this does not mean that we can rest easy. Now, as always, eternal vigilance is the price of liberty.
A project of The Freedom Forum
Coordinator: Donna Demac, Fellow
Research Assistant: Maury DeFreitas
Project Overview, January 1997