Few will note 207th birthday of our five fundamental freedoms, even though each is under attack
Ombudsman
By Paul McMasters
First Amendment Ombudsman
First Amendment Center
12.15.98
A precious few will take note of today's 207th birthday of the First Amendment.
It is our tradition, it seems, to honor the First Amendment in the abstract but in everyday life do our best to ignore its practical mandate.
After two centuries of service to humanity and democracy, each one of the five fundamental freedoms in the First Amendment faces tough challenges today.
In religion, elected officials resolve to display the 10 Commandments in public buildings, citizen groups campaign to have Creationism taught in public schools, and members of Congress debate an amendment to the Constitution that would allow government-sanctioned prayer in our public schools.
In speech, not a day goes by that a book, a painting, a lyric, a play, or a movie isn't targeted for censorship.
The press is constantly under siege, battling $220 million-dollar libel awards, new legal strategies that attack the journalist —or the news-gathering techniques when the accuracy can't be attacked— and state and federal lawmakers using the saga of the Princess and the Paparazzi to pass laws restricting news coverage of public figures.
Assembly certainly isn't sacrosanct, as literally hundreds of communities across this nation dismiss the First Amendment and court rulings to impose curfews on young people, and municipalities defend their right to round up anyone on city streets fitting a policeman's idea of a gang member.
The right of petition is a truly orphan freedom. No one wants to defend lobbyists and public officials, developers and corporations muzzle citizen activists with SLAPP suits (lawsuits with a major purpose of shutting down opposition).
In the midst of all this, we have to ask ourselves: Are such constant attacks on free expression indicators of the First Amendment's poor health? Or are they symptoms of a larger illness in our society? Is democracy itself diseased?
Each day of this nation's life, in meetings of school boards, library boards, city councils, state legislatures, and Congress itself, elected officials rise on behalf of a censor-minded citizenry and proclaim, "I believe in the First Amendment, but ..."
Then follows yet another proposal to regulate our speech in order to elevate our lives.
Thus we have one of the more exquisite ironies of a freedom-loving society: Americans truly believe they believe in free speech. Still, there is that "but ..." — that qualification of their commitment to the rights and values embedded in the 45 words of the First Amendment.
Survey after survey tells us that Americans stand fast in their support of the general notion of free speech—the First Amendment in the abstract.
In the particulars, however, we waver. When asked to countenance the very speech the First Amendment was drawn to protect—radical speech, rude speech, even revolting speech—we become unsure.
Indeed we believe in free speech for ourselves, but for the most part we are not so sure about free speech for others, especially those who use words that might offend our taste, threaten our children, or challenge our convictions.
The First Amendment has served this nation well for more than two centuries but its lesson still has not taken with most Americans, or their leaders. Too many of us do not believe our democracy is strong enough to survive words uttered by those who sometimes cross the line between liberty and license.
In times of chaos or confusion, even the First Amendment's most fervid advocates experience misgivings. There is a little bit of the censor in each of us. Whether it is indecency, violence, extremism, flag-burning, New Age religion, rap lyrics, racism, sexism, or a Ku Klux Klan march, there always seems to be something we just can't abide.
"I believe in the First Amendment, but ? ."
So, First Amendment freedoms endure attacks from the left, the right, and the middle of the political spectrum. They come from all sectors of our society.
In the academic world, Catharine MacKinnon, Stanley Fish, Cass Sunstein, Mari Matsuda, Richard Delgado, and a host of other esteemed scholars articulate a vision of our future where the First Amendment remains important, but not all-important. In their view, civil rights trump civil liberties rather than existing in harmony.
In the religious world, many are not content with merely protesting indecency and immorality in books, in movies, on television, on the Internet. Instead, they want the courts and legislatures to impose an approved and ordered view of the world on everyone.
In the political world, many lawmakers are all too happy to oblige this impulse, up to and including altering the First Amendment itself with constitutional amendments to ban flag-burning, to allow prayer in public schools, and to curb political speech in the name of campaign finance reform.
There is, of course, a popular torrent feeding all these streams.
Among ordinary citizens, there is unease about speech that is too free. There is a feeling that we should protect First Amendment freedoms only when they are put in the service of higher social, political, or religious interests.
Fortunately, the courts generally turn aside the more intemperate attacks on the First Amendment and ameliorate the power of government, the will of the majority, or the whim of the moment to stifle and silence speech.
But the attacks keep coming. And the losses mount.
Assaults on free speech used to come from the occasional individual or small groups. Today those assaults are more likely to come from much larger, well-financed organizations. Where the former tended to test and temper freedom, the latter threatens to subsume it to an agenda or cause.
Today, there also are new voices of uncommon eloquence advancing the idea that not all restrictions on speech are bad.
That eloquence must be matched by those of us who believe that such thinking is a false and flawed notion of good social order.
We must make the case that to insist that some ideas are forbidden, some images are criminal, and some words are taboo is to rob both society and the individual of their vigor and our children of their future.
We must make the case that to exile some ideas, to imprison some images, to banish some words is anathema to the thoughtful individual and the careful society.
We must make the case that to defend First Amendment principles is not to defend pornography, perversity, or perfidy. Instead, it is to defend the tradition that each act of expression will live or die on the strength of its appeal and utility, and that society will be strengthened by the process of debate and consideration.
There are, indeed, some words, images and ideas that are perverse, even evil, but none so much as the idea that government, the majority, or a politically astute elite can impose its list of restrictions on the rest of us.
Those who grab headlines for ripping up books in the marketplace or garner praise for writing learned treatises in defense of censorship run the risk of destroying democracy's dream.
It is up to the rest of us to remind them that the First Amendment is a remarkable compact between a government and its people, and that compact is terribly threatened by those who prefer order and orthodoxy over the democratic din that free speech engenders.
It is up to the rest of us to remind them — and ourselves — that to ignore the First Amendment's practical mandate is to invite a day when we'll be saying, "We believed in freedom, but ..."
May the 208th year of the First Amendment be honored by a nation that does not fear freedom but celebrates it.
Paul McMasters may be reached at pmcmasters@freedomforum.org.