Few will note 207th birthday of our five fundamental freedoms, even though each is under attack

Tuesday, December 15, 1998


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.