ACLU chief to news media: Don’t let our freedoms erode

Wednesday, October 27, 1999

Nadine Strossen...
Nadine Strossen

NEW YORK — Of all the freedoms protected by the First Amendment, the ones that journalists must protect from attack the most are, well, all of them, Nadine Strossen, president of the American Civil Liberties Union, said last night at Columbia University.

“There are six major freedoms protected in the First Amendment,” Strossen said, “and every single one of them is under assault.” (Strossen considers the law against establishing and restricting religion to be two freedoms.) Focusing on freedom of speech and expression in her address for the Poliak Lecture Series, Strossen examined a range of recent cases involving cyberspace and public schools.

The First Amendment “is often dishonored simply out of ignorance,” Strossen said. “I can’t stress that enough to those of you who will wield the power of the pen to try to dispel that ignorance.”

School administrators and local government officials need the most enlightenment, she added, as many First Amendment cases now in the courts are there because these leaders lack a strong understanding of the amendment.

“[Our First Amendment rights are] under assault not only in places like Alabama, to pick an example,” Strossen said, but “we also have First Amendment problems right here in New York City — I’m sure this will come as a big surprise.”

Strossen cited New York Mayor Rudolph Giuliani’s recent threats against the Brooklyn Museum of Art and his efforts to block a gathering by the Ku Klux Klan.

“I think the government is the greatest threat to our freedoms … . A big part of what it means to defend the First Amendment is making it a reality at the local level of government all over the country,” Strossen said. “We have these challenges not only all over the country, every level of government, every possible form of government, whether the executive branch or the legislative branch, [but also in] the court of public opinion,” she said.

“The First Amendment is only going to be as strong as public understanding and support for it are, and they’re not in a very strong state right now,” she said. “[Journalists] have a tremendous opportunity and a tremendous responsibility to inform people about their rights and therefore to help us make those rights into a reality.”

Focusing on freedom in cyberspace, Strossen highlighted the Communications Decency Act and COPA, the Child Online Protection Act, through both of which the federal government has tried to regulate cyberspace.

“[We're] thrilled that the Supreme Court agreed with the ACLU that this brave new medium should receive the same high degree of First Amendment protection as the print media traditionally have enjoyed,” Strossen said. But she called it an ongoing struggle to keep cyberspace free, especially since “Congress dares not vote against these cyberspace laws for fear of being seen as soft on crime or worse, soft on porn.”

Which is why the First Amendment is so dependent on the independent judiciary, Strossen said. The “politicization” of the process has made it all the more important to support and maintain an independent judiciary.

“The single greatest challenge and problem we face, not only on the First Amendment front but on all civil liberties horizons, is maintaining the independence of the judiciary. It is the ultimate safety net that we need against the majoritarian tides and lack of political courage that we see on the part of too many elected government officials,” Strossen said.

She said the slew of recent cases involving breaches of the First Amendment in the public schools was not only a result of ignorance of the First Amendment, but also a direct reaction to the Littleton, Colo., school shooting in April.

“In the wake of Littleton, things in our public schools are really, really grim,” Strossen said. “[After] Littleton, schools are really cracking down even more than ever on students’ free-speech rights. We’ve got a fortress America or prison mentality in these schools — kids are being suspended, expelled, even jailed for engaging in the most innocuous expression.”

In some of these cases against school administrations, the ACLU is losing; ACLU lawyers are often encouraged to settle out of court, she said, since such cases can be opportunities for judges to create bad law.

“I like to joke the ACLU never loses a case, it’s just sometimes judges make incorrect decisions. They are making incorrect decisions [now],” she said. “These stories (in the public schools) have not gotten as much coverage as I would like … . [Journalists] have to be informed and you have to use your power of informing other people — we cannot exercise our rights if we don’t know what they are.”

Strossen said the news media had not paid enough attention to the threats to freedom in cyberspace, either. She said COPA, if it survives, would limit young people’s access to legitimate forms of sexual information along with the pornography and “smut” Congress is focusing on. “I wish the mainstream media would be more combative in stepping to the plate” to oppose such laws, she said.

“What’s at stake is very serious and very valuable expression that can have particular value for young people in an era where we see a tragic spread of HIV and other sexually transmitted diseases among teenagers … . There isn’t enough sexual expression online, or elsewhere, for young people. Journalism has not been attentive enough to that kind of pressure (from Congress).”

Another challenge of cyberspace will be to balance freedom and privacy. “There are real conflicts between freedom of speech, First Amendment-type values, and privacy values,” Strossen said, “and it has put the ACLU on the other side of cases from our friends in the media. The ACLU defends both freedom of speech and privacy,” she said, and “we do our best to try and balance the two without automatically privileging one over the other. But I think as we’re seeing more technology that can acquire and disseminate information … we’re going to see more and more of these painful conflicts.”

The numerous cases involving freedom of speech issues in cyberspace and in our public schools reveals how important and how vulnerable freedom of speech is, Strossen said. “The power of the press can be enormous — use your power,” she said.

She closed with a quote from E.B. White: “I am inordinately proud these days of the quill, for it has shown itself historically to be the hypodermic which inoculates men and keeps the germ of freedom always in circulation so that there are individuals in every land who are the carriers, the Typhoid Marys, capable of infecting others by mere contact and example.”

“We hear so much today about infectious diseases but rarely the infectious disease of freedom,” Strossen said, “so I urge all of you journalists now and in the future to use your pens and your faxes and your modems to keep the germ of freedom alive.”