First Amendment: Surviving Year 2000 challenges

Monday, January 3, 2000

Since the World War I era, First Amendment freedoms have been firmly internalized by our social, political and legal systems. But the eternal urge to censor speech has not been tamed. Thus, Americans pay lip service to free speech but don’t trust it any further than the tips of their own tongues.

So the First Amendment begins a new era with no guarantee that its guarantees of freedom will remain intact.

Just about every type of speech one can think of is under attack: sexual speech, violent speech, hate speech, unpatriotic speech, “coarse” speech, uncivil speech. Hardly any medium of expression or communication is safe from the savaging: art, literature, music, television, movies, the Internet.

Inevitably, the remedy demanded by those offended by words, images and ideas — or their medium of expression — is a redefinition or reconstruction of traditional First Amendment protections.

Members of Congress routinely take up proposals to amend the Constitution in order to punish flag-burning, to allow prayer in school, or to regulate campaign contributions. They regularly endorse bills that would regulate speech on the Internet, even though the courts regularly find such laws constitutionally infirm.

In state legislatures, the story is similar. Hundreds of measures to regulate the Internet, libraries, music concerts, negative comments about agricultural products, adult businesses and other expressive activities will be introduced and voted on this year.

At the city and county levels, more and more elected officials are shutting down or moving adult businesses, video stores, movie houses, and even comic-book stores. They are trying to regulate newspaper vending machines, to ban advertising of alcohol and tobacco on billboards, and to restrict the activities of street vendors.

Even the political speech of citizens is under attack. Local government officials are restricting the speech of citizens who come before them by imposing time limits, subject limits, and frequency of appearances. Some citizens are being arrested or forcefully ejected from meetings for such offenses as making a personally disparaging remark about an elected official.

This means, of course, that court dockets across the nation are replete with cases having to do with important First Amendment issues. For the current term, the Supreme Court accepted more First Amendment-related cases than at any time in recent memory.

There are many rationales put forth for these challenges to freedom of expression, but they boil down to this:

  • To crack down on indecent, violent or hateful speech.
  • To create a safer, calmer, more comfortable society.
  • And, most often, to protect the children.

The attacks on speech come from all directions: religious conservatives, secular liberals, political opportunists, scholars, even erstwhile “friends of the First Amendment.”

Shoring up this activism is the thinking and writing that issued from academe in the final decades of the previous century. This thinking is remarkable because of its power and persuasiveness — and the fact that it has gotten itself accepted by policy-makers, the press, and the public without much real or sustained debate or challenge.

Generally, what started as leftist philosophy in the Paris of the Sixties migrated into the law and philosophy divisions of a number of major universities. There it merged with various progressive theories, identity politics, critical race theory, postmodernism and what-have-you to create an intellectual environment where traditions and principles have been turned on their heads and language has acquired rather novel meanings.

For example, censorship is redefined as an act of private parties rather than of government entities. Government, in fact, is no longer the censor but the referee, entrusted with the mission of giving the powerless more speech by taking some speech from the powerful.

We see this notion at work when Catharine MacKinnon invokes the power of the state, not as a censor but as a “parliamentarian,” to expand the speech of the powerless by contracting the speech of the powerful. Or when Frederick Schauer argues that the “establishment” speaker engaged in the very activity the First Amendment seeks to protect is himself a censor, a silencer. All of this finds expression in such books as Stanley Fish’s There’s No Such Thing as Free Speech: And It’s a Good Thing, Too and Cass Sunstein’s Democracy and the Problem of Free Speech.

This way of thinking has gained such a foothold that Ronald K.L. Collins and David Skover proclaimed in The Death of Discourse: “To save itself, the traditional First Amendment must destroy itself.”

There is seemingly no end to the populations or communities whose speech is considered unequal to the speech of the majority or the politically powerful.

Children are treated as sort-of citizens whose First Amendment rights — whether it’s their speech, their dress, their friends, their symbols, their Web pages, or their student newspaper — are forfeited in the name of their protection.

Any group on the fringe — artists, panhandlers, radicals, entertainers — must earn its First Amendment rights by conforming to the lowest common denominator of acceptability.

Adult businesses dealing in sexual material are zoned into First Amendment ghettoes or hauled into court at the whim of ambitious prosecutors.

Scientists and educators are criticized for resisting the inclusion of creationism in textbooks and class lectures.

Even public librarians are labeled pornographers and pedophiles for defending the First Amendment rights of their patrons.

Typically, these groups don’t have the resources or the standing to fight back effectively as elected officials and politically astute groups chip away at their rights.

And the small band of First Amendment advocates lack the organization and resources to intercede on their behalf. Or they are suffering litigation fatigue from fighting the same battles over and over in community after community. They wait in vain for the likes of Steven Spielberg, Oprah Winfrey or Bill Gates — whose reputations and fortunes are based on First Amendment activity — to join them in defending and promoting freedom of expression.

In fact, there is no one — not in the law-making bodies, not in the courts, not in academe, not in public life — who is championing the idea of expanding freedom of expression, despite the fact that the majority of Americans consistently rate freedom of speech as the right they consider the most valuable. The only voices being heard are those calling for constriction of that freedom.

If the First Amendment is to survive the new era intact, however, other voices must make themselves heard. The threats to the First Amendment are clear. The challenge to First Amendment champions is equally clear.

They must find ways to remind the censors among us that censorship is always imposed for the best of reasons with the worst of results.

They must find ways to show that the five freedoms in the First Amendment are inseparable; that to restrict one is to restrict all; that to get rid of speech that offends, one must also damage speech that informs, that entertains and that inspires.

No matter what technologies we may concoct to communicate our speech, or what new era we may find ourselves in, the nature of speech itself never changes: It must be free to be meaningful.

Paul McMasters may be contacted at