Here’s hoping 45 words stand tall in hearts, minds

Friday, April 11, 2008

A version of this op-ed was published in The (Washington, D.C.) Examiner.

Venture down Pennsylvania Avenue toward the Capitol and you will see a 74-foot marble tablet affixed to the Newseum, which opens today. On that stone tablet are the 45 words of the First Amendment. It took more than two centuries to bring that public-service message to our nation’s capital in a bold way. Now, at long last, the message is there for everyone to see and reflect upon the meaning of the five freedoms — freedom of religion, speech, press, assembly and petition.

Today, the First Amendment is, by and large, revered more than in the past. “I am convinced,” writes Anthony Lewis in Freedom for the Thought We Hate, “that the fundamental American commitment to free speech, disturbing speech, is no longer in doubt.” While some may quarrel with the breadth of that claim, it is generally true that our respect for the First Amendment seems firmer than at any time in our history. But that is as much a comment about our “legacy of suppression,” as Leonard Levy puts it, as it is about our current dedication to liberty.

Regrettably, there have been countless abridgements of the First Amendment since the ratification of the Bill of Rights in 1791. A mere seven years later, Congress passed the Alien and Sedition Acts. Much of the same breach of constitutional faith occurred in 1917 and 1918 when Congress enacted the Espionage Act and the Sedition Act. And the Smith Act of 1940, which was used to target communists, won the blessing of a divided Supreme Court in 1951. Fortunately, for all its faults, the Iraq conflict has not produced such patent abuses of lawmaking, so far as free expression is concerned.

In 1996, Congress was so concerned with monitoring the content of the Internet that it passed the Communications Decency Act, key portions of which were declared unconstitutional the following year. But even the Supreme Court has not remained faithful to the First Amendment’s command as evidenced by its 2007 ruling curtailing the already trifling free-speech rights of high school students.

And what of the “freedom of the press”? In 1864 Abraham Lincoln ordered the suppression of the New York Journal of Commerce and the New York World along with the arrest of their editors. And it was not until 140 years after the First Amendment became the law of land that the Supreme Court ruled that prior restraints against the press were unconstitutional. But that did not stop the Nixon administration from trying to prevent the publication of the Pentagon Papers. The Supreme Court restrained this abuse of executive power. But similar abuses today manifest themselves as the government demands that reporters reveal their confidential sources or face jail — this at a time when government is more secretive than ever.

The history of religious freedom in America is a mixed one. For example, Jehovah’s Witnesses suffered the brunt of religious discrimination and prosecution for decades in the 20th century. It took almost 20 Supreme Court rulings between 1940 and 2002 to end such discrimination. While some progress had been made in safeguarding the “free exercise” of religion, in 1990 the Rehnquist Court turned the clocks back when it gave the government wide latitude to trample religious rights. Though Congress reinvigorated the First Amendment and passed the Religious Freedom Restoration Act in 1993, the Supreme Court struck it down four years later. Since then some states have responded by restoring strong protections for free exercise of religion through their own legislation.

Although the First Amendment separated church from state on the national level in 1791, the debate over the meaning of “no establishment” of religion continues to this day. Americans generally agree that the government should not be entangled with religion, but disagree about where to draw the line on such issues as state aid to religious groups, state-sponsored prayers in public school and public places, and religious displays on public property, an issue again before the Court this term.

And while the freedom of petition, which has origins that predate the Magna Carta, is still much valued and safeguarded, its companion right of peaceful assembly has enjoyed varying degrees of respect since the Supreme Court first imposed the guaranty on the states in 1937 and thereafter strengthened it in series of 1960s civil rights cases. But today local, state and federal authorities frequently confine peaceful assemblies to so-called “free speech zones” far removed from those against whom such protects are directed.

At a time when Congress restricts political speech by well-intentioned but misguided campaign-finance laws; and the Federal Communications Commission acts as a National Nanny; and a federal judge issues a draconian order to force a reporter to reveal her sources; and an Alabama judge orders those in his courtroom into a “circle of prayer”; it is painfully clear that James Madison’s message still needs to be conveyed to some who would readily “abridge” our First Amendment rights.

Still, a sun yet rises in America when those wondrous 45 words of liberty stand tall and bold for all to read, remember, and respect. Heed them!

Ronald Collins is a scholar in the Washington office of the First Amendment Center, located in the Newseum.