State of the First Amendment:A survey of public attitudes

Friday, July 2, 1999

State of the First Amendment
1999 Survey
  • Overview
  • Foreword
  • Analysis
  • Questionnaire
  • Methodology
  • News advisory

  • Most Americans celebrate the freedoms guaranteed by the First Amendment. Yet they are not entirely comfortable with those freedoms. They are constantly reevaluating their commitment to First Amendment rights and values and rearranging their priorities, asking themselves whether life would be more civil, more orderly, less threatening if the excesses of expression were somehow subdued.

    That clear sense of unease permeates this second State of the First Amendment survey. Americans appreciate, understand and endorse First Amendment principles, but become wary and occasionally even hostile when it comes to the practices.

    Indeed, some of the findings in this survey arrive as a jolt to the constitutional conscience:

  • More than half of the respondents believe the press has too much freedom.
  • Half believe the Constitution should be amended to override the First Amendment's protection of flag-burning as political protest.
  • Nearly one-third believe the First Amendment goes too far in the rights it guarantees.

  • Further, when responses in this survey are compared to the first State of the First Amendment survey — conducted in 1997 — a series of negative shifts in attitudes toward First Amendment freedoms becomes apparent.

    These findings call into question the durability of the First Amendment compact between the government and the citizenry. For more than two centuries, the First Amendment has represented a promise Americans made to themselves, resolving to endure even noxious speech in order to preserve that compact. Americans have invested heavily in the proposition that it is better to be offended than to be silenced. This survey, however, reveals at best an inconstant commitment to that promise and to that proposition.

    The news in this survey was especially bad for the press. When asked whether they think the press has too much freedom, 53% of the respondents said yes. That represents an increase of 15 percentage points from the 38% who said yes to the same question in 1997. [Question 4]

    The bad news keeps coming. In disturbing numbers, Americans said newspapers should not be allowed to publish freely without government approval, that they should not be allowed to endorse or criticize political candidates, that journalists should not be able to use hidden cameras for newsgathering and that the news media should not be able to publish government secrets.

    Generally, survey respondents were more supportive of freedom of speech — at least in principle — than of press freedom. For instance, the percentage of those who believe we have too little freedom of speech went from 18% in the 1997 survey to 26% in 1999. [Q. 5] And those who agree that Internet speech should enjoy the same protection as printed speech went up from 56% to 64%. [Q. 41]

    In fact, freedom of speech transcends the First Amendment as one of the most cherished of all constitutional rights. When respondents in the current survey were asked what they feel are the most important freedoms, they most frequently answered “freedom of speech.” Exactly half of the respondents volunteered that answer, a rate unchanged from the previous State of the First Amendment survey. [Q. 1]

    Most frequently cited after speech was freedom of religion, with 18% saying that it was an important right. The Second Amendment right to bear arms was named by 14% of the respondents, up from 9% in 1997. Freedom of the press and the right to vote were both cited by 6% of those polled. Freedom of assembly was mentioned by 4%. The First Amendment right to petition government for a redress of grievances was mentioned by only 2% of the respondents, trailing the right to a fair trial and the right to privacy, each of which were named by 3%.

    Significantly, even though First Amendment freedoms quickly came to mind when Americans were asked about important liberties, 49% were unable to connect even one of the five freedoms to the amendment. Asked whether they could name any of the specific rights guaranteed by the First Amendment, 44% of the survey respondents listed speech. Religion was cited by 18%, press by 12%, assembly by 8% and petition by 2%. [Q. 2]

    Despite their high regard for the idea of free speech, many Americans have serious concerns about certain kinds of speech. That said, they generally express more support for freedom of speech than for freedom of the press. The disparity may be attributable to a perception that freedom of the press belongs to the press while freedom of speech belongs to every individual. If, indeed, individuals view speech as a very personal freedom, that may explain why some are inconsistent about extending it to others, especially to those they dislike or with whom they disagree.

    About the survey
    There have been only a few comprehensive assessments of public attitudes toward freedom of expression, the more notable including the 1954 survey by Samuel Stouffer, Communism, Conformity, and Civil Liberties: A Cross-Section of the Nation Speaks Its Mind; a series of studies in the '70s by Herbert McClosky and Alida Brill, published in 1983 as Dimensions of Tolerance: What Americans Believe About Civil Liberties; and the 1991 survey by Robert O. Wyatt for the American Society of Newspaper Editors, Free Expression and the American Public.

    Generally, such research has shown that education and income are good predictors of support for freedom of expression. That seems to be the case in this survey also. In addition to education and income, though, respondents shared other characteristics that seem to typify those who support First Amendment freedoms. They tended to be white, male, politically but not religiously active, liberal or moderate, and young. In addition, support for First Amendment freedoms seemed to fluctuate depending on the type of expression, the medium of expression, and the identity of the speaker. Obviously, not all of these elements factored into every response.

    As for education about the First Amendment, just over half of the respondents in this survey recall having a class on the First Amendment in grade school, high school or college. [Q. 9] In the 1997 survey, only 4% rated their education about the First Amendment “excellent”; 63% said it was poor or “only fair.”

    It would be unwise to form hard conclusions from the findings in this survey or the differences in responses between the 1997 and 1999 surveys. Two surveys over two years do not establish trends. With error margins of ±3 overall and ±4 in the 30% to 70% range, responses might differ by 6 to 8 points and still not be statistically significant. Even so, it seems prudent to take note of flagging support and sizable shifts in attitudes, whether positive or negative.

    How much support do First Amendment freedoms need? Some would say that the First Amendment is quite secure as long as at least a bare majority supports it. Others would say that fundamental constitutional freedoms warrant substantial public support. Without that support, they would say, the First Amendment is in trouble, given the nature of the pressures and panics confronting Americans today and the apparent willingness of lawmakers to challenge constitutional freedoms.

    Those who follow such things know that the First Amendment is under incredible assault on a daily basis, whether from adverse court decisions, proposed laws, scholarly studies or citizen initiatives. That fact, in conjunction with a survey of attitudes such as this one, offers substantial evidence that the state of the First Amendment is not good. Further, we must be mindful that where attitudes go, action is seldom far behind, and such action inevitably is in the form of further restrictions on First Amendment freedoms, whether through lawsuits, court rulings or new laws.

    To the extent these findings inform the public discourse swirling about these matters, we are compelled to pay them heed.

    Speech: It all depends
    Although those who think we have too much freedom of speech increased in this survey from 10% to 12%, those who think we have too little went from 18% to 26%. Six in 10 Americans think we've got it about right. [Q. 5] An overwhelming majority believes that Americans ought to be able to speak their minds, with 86% saying that people should be allowed to express unpopular opinions. [Q. 16] In actual practice, however, support for free speech rises and falls according to whether the speech is political, religious, artistic, racist, sexual or commercial in nature. Within each category of speech, attitudes also vary substantially, depending on the medium of expression chosen.

    While a majority of respondents, 56%, said that musicians should be able to sing songs with lyrics that some might find offensive [Q. 17], they were not so permissive toward other types of offensive expression. For example, 57% said that the public display of art that some might find offensive should not be allowed. [Q. 22] An even larger majority, 78%, would not allow the public use of words that racial groups might find offensive. [Q. 21]

    Not surprisingly, this survey confirms the 1997 findings that large numbers of Americans support restrictions on speech about sex. An interesting finding is that Americans feel the more accessible the medium is, the less permissible sexually explicit content should be. [Q. 18, 42-46] For example, when asked whether different media should be allowed to convey sexually explicit material, survey respondents were much more willing to allow sexually explicit material on rental videotapes than on the Internet. Here are the various media represented in the survey and the percentages of those who strongly or mildly agreed they should be able to carry sexually explicit material:

    Video stores: 63%

    Premium cable: 59%
    Magazines: 45%
    Basic cable: 26%
    Internet: 24%

    An emotionally charged issue for most Americans is the burning or defacing of the American flag. The Supreme Court has ruled twice that the First Amendment protects flag-burning as symbolic speech. But most Americans don't want flag-burning protected; in this survey, 80% say people should not be allowed to burn or deface the flag as a political statement. [Q. 19]

    Despite their revulsion for flag desecration, however, Americans are evenly divided when it comes to amending the Constitution to prohibit it. When asked whether the Constitution should be amended, 51% said it should, and 48% said it should not. [Q. 25] When asked a follow-up question on whether they would support an amendment, knowing it would be the first time the Bill of Rights was amended, 8% of the 51% in favor of the amendment reversed themselves and said no. [Q.26] These responses are little changed from the 1997 survey.

    Americans seem particularly strict about what they will allow on television, apparently considering it such a presence in their lives that programming must be held to a different standard than expression in other media. This feeling is so strong that significant numbers of people are prepared to accept the federal government's help in determining what they see on television. The implementation in 1997 of the TV program rating system-to be combined with V-chip technology in new televisions starting this summer-may explain an increasing acceptance of the government's involvement in helping parents guide the viewing choices of their children.

    In the 1997 survey, respondents were asked whether government has a role to play in developing a system to rate television programs; 44% said it did. In the current survey, 57% agreed when asked if the federal government should or should not be involved, either directly or indirectly, in requiring the ratings of entertainment television programs. [Q. 47] Even though most approve of this government role, there is some question as to whether they consider it regulation. When asked directly whether the government should regulate what appears on television, 53% either strongly or mildly disagreed. [Q. 39]

    Support for Internet-speech freedom increased over the two years between the 1997 survey and the present study. Those who mildly or strongly agree that Internet speech should enjoy the same protection as printed speech went up from 56% to 64%. [Q. 41] That increase possibly could be explained by a growing familiarity with the new technology as well as by several court decisions extending more protection to Internet speech.

    Americans remain wary, however. Only 24% thought that sexually explicit material should be allowed on the Internet. [Q. 18] A 58% majority said that public libraries should block access to certain Internet sites that might offend some people. [Q. 40] By the same majority, 58% said that the government should have a role in developing a rating system for Internet content. [Q. 49]

    There is substantial public support for the general notion of advertising of products considered harmful, but support for this type of commercial speech, too, seems to be medium-specific. For example, 71% agreed with the statement that companies should be allowed to advertise tobacco [Q. 10], and 63% agreed that companies should be allowed to advertise liquor and alcohol products. [Q. 13] When asked whether such advertising should be allowed on billboards, however, the respondents were not quite as supportive: 63% said yes for tobacco [Q. 12] and 60% for liquor [Q. 14]. That support dropped further when respondents were asked if companies should be allowed to advertise these products on television: 51% said yes for tobacco [Q. 10] and 53% for liquor. [Q. 15]

    Interestingly, most Americans believe that within a particular type of communication there should be no disparity between the rights of tabloid or sensationalist media compared to mainstream media. Thus, 71% say the Star and the National Enquirer tabloid newspapers should have the same freedom to publish as The New York Times and The Wall Street Journal. [Q. 50] The same percentage believes that Playboy and Hustler magazines should have the same publishing freedom as Time and Newsweek. [Q. 51] And 60% say that Jerry Springer and Jenny Jones should have the same freedom as ABC News to air what they wish on television. [Q. 52]

    Press: It's in deep trouble
    Two of every three Americans believe that news organizations should be allowed to report or publish what they think is appropriate. [Q. 27] But that endorsement of the idea of press freedom loses some of its force in the context of wobbly support for specific press activities.

    In the 1997 survey, 80% said that newspapers should be able to publish freely without government approval of a story; that figure dropped to 65% in the current survey. [Q. 28] In the previous survey, 38% said the press had too much freedom; that figure grew to 53% in the current survey. [Q. 4] In 1997, 85% said the press should be able to keep sources confidential; that figure fell to 79%. [Q. 29] In 1997, 69% said the press should be able to endorse or criticize political candidates; that is 63% now. [Q. 31] Those who believe journalists should not be able to use hidden cameras went from 65% to 72%. [Q. 35] And those supporting the reporting of government secrets dropped from 61% to 48%. [Q. 32]

    There's more. Nearly six in 10 Americans (59%) think the ratings system now in use for entertainment programming on television should be extended to TV news. [Q. 48] A majority agrees that government should be allowed to regulate the activities of celebrity photographers known as “paparazzi.” [Q. 57] Even student journalists suffer in the fallout. Support for high school newspapers being able to print controversial material went from 45% in 1997 to 37% in the current poll. [Q. 34]

    These findings indicate that the news media are in deep trouble with the American public. A variety of studies, surveys, and focus groups document a real resentment of the press and its practices among Americans, who characterize the news media as arrogant, inaccurate, superficial, sensational, biased and bent. Worse, they apparently believe that the press is part of the problem, rather than part of the solution.

    In a study conducted earlier this year by the Pew Research Center for The People & The Press, 32% of those surveyed said they thought the media were declining in influence, compared to 17% in 1985. The number of those saying the media protects democracy dropped from 54% in 1985 to 45%. Conversely, 38% said that the media hurt democracy; only 23% said that in 1985. (1)

    The reasons for the news media's decline in public esteem are no doubt varied and complex. It must be acknowledged that there is a cyclical nature to this; for example, the 1947 Hutchins Commission report complained of the same sort of things the news media is targeted for today. Also generating significant criticism of the media in recent years were coverage of the O.J. Simpson trials, the death of Princess Diana, several incidents of plagiarism and embarrassing retractions of major stories by CNN and The Cincinnati Enquirer. But the coverage of the Clinton-Lewinsky affair seemed to crystallize the public's acute dissatisfaction with the press.

    There are other factors at play in public attitudes toward the news media. The proliferation of news outlets-including 24-hour radio and cable channels-ratchets up a general perception of saturation on major new stories, as well as conflating punditry with actual reporting in the minds of news consumers. It also increases the competition among media, leading to a certain amount of speculation, rumor and incremental reporting. No doubt, the fact that there is a general decline in public satisfaction with most major institutions in our society is of little comfort to the news media.

    There is evidence in this survey that the public appreciates the vital functions that the press can perform in a democracy. For example, 67% said that courtroom trials should be televised; that's up from 51% in the 1997 survey. [Q. 30] An even larger number, 73%, said they think proceedings of the Supreme Court should be televised. [Q. 36]

    Few Supreme Court justices would align themselves with that majority, however. Justice David Souter once told a House subcommittee, “The day you see a camera coming into our courtroom, it's going to roll over my dead body.” Nevertheless, these findings are consistent with an American Bar Association poll released earlier this year that found that 61% of the people polled wanted to know more about the justice system. (2)

    The results of questions about the press and privacy are intriguing. Six in 10 of those polled said journalists should not be allowed to investigate the private lives of public figures. [Q. 37] But when asked whether the press should be allowed to publish factual information about a public official's private life that may be embarrassing or sensitive, 48% said it should. [Q. 53] The response was similar in regard to celebrities such as actors: 44% said the press should be allowed to publish factual information that may be embarrassing or sensitive. [Q. 54] However, the public is more protective of private citizens. Only 37% agreed that the press should be allowed to publish embarrassing or sensitive information about them. [Q. 55]

    Religion: A call for school prayer
    When asked about rights they consider most important, a total of 18% of all respondents mentioned religion. [Q. 1] Of that total, 13% responded with “freedom to practice religion” and 5% with “freedom not to practice religion.” It should be noted that on some surveys, when respondents are given a list of freedoms rather than an open-ended question, the number of respondents who list religion is higher.

    Of significance in this survey is the fact that more than one in four respondents (26%) said that Americans have too little religious freedom; only 8% said there is too much. [Q. 6]

    A clear majority of the respondents appeared to disagree with Supreme Court rulings that say prayer in public schools must be initiated by students, not teachers and administrators. When asked whether teachers or other public school officials should be allowed to lead prayers in school, 65% said they should. That figure was 57% in the 1997 survey. [Q. 56]

    The passion and conviction many Americans evince concerning religion in public life is no doubt a significant factor in congressional efforts to pass a religious liberties amendment to the Constitution, in federal and state legislative proposals to permit the posting of the Ten Commandments in public buildings, and in other initiatives aimed at elevating the role of religion in public life.

    In support of protest
    The First Amendment freedoms of peaceful assembly and petitioning government for a redress of grievances usually do not command the time and attention devoted to issues involving religion, speech or the press. But Americans seem to understand that protests, demonstrations, rallies, marches and boycotts deserve constitutional protection. When asked whether a group should be allowed to hold a rally for a cause or issue that may be offensive to others, 62% agreed-although that figure represents a 10-point drop from the 1997 survey. [Q.38]

    The 62% figure held when respondents were asked whether pro-abortion or anti-abortion groups should be allowed to hold a protest or demonstration in their communities. Two-thirds of those polled said they should be able to. [Q. 23] But when asked if militia groups, white supremacists, skinheads or Nazis should be allowed to protest in their communities, 52% said they should not. [Q. 24]

    As for teen curfews: court rulings have not been conclusive on whether these violate the First Amendment assembly and association rights of young people. Nevertheless, a sizable majority of Americans apparently have made up their minds: 78% said curfews do not violate young people's rights. [Q. 7]

    An adjustment in priorities
    Americans are not averse to weighing their First Amendment rights against other rights and desires from time to time. This survey indicates that such a process may be under way right now. It does not indicate whether this process is part of a trend, a cycle, or an overall re-evaluation of Americans' commitment to First Amendment traditions and principles. At the least, a substantial number-often a majority-of the respondents in this survey seem to be saying that curbs on First Amendment freedoms must be part of the mix in the search for answers to the problems plaguing this society. It is clear that most people just can't abide some types of expression in some situations. It is also clear that the desire for civility and security is so deep that significant numbers of people would consider trading some expressive freedoms for them.

    This apparent willingness by some Americans to consider restrictions on speech offers a glimpse of the American psyche's majoritarian/authoritarian streak, i.e. the tendency of some to believe that speech not approved of by the majority does not qualify for full First Amendment protection. This raises the question of whether government officials acting on behalf of the majority can restrict and punish some speech. To the extent that these findings reflect support for such a concept, the issue becomes not where we draw the line on certain kinds of speech, but who gets to draw it.

    The negative attitudes toward First Amendment freedoms expressed in this survey indicate that Americans are debating whether constitutional tradition or public opinion should determine just how much freedom of expression we as a society will abide. Key issues in that debate:

  • Are we moving toward a time when some speech must, in effect, be put to a vote and those speakers who fail to gain majority endorsement forced to forfeit a portion of their First Amendment franchise?
  • Are we experiencing a loss of faith in the ability of our government and social institutions to withstand offensive, even insidious, speech?
  • If we lack the will to protect speech on the fringe, how secure is acceptable speech? How do we measure its validity if it cannot be challenged?

  • There may be something else at work in these findings, too. It may well be that Americans are reexamining their attitudes toward some forms of expression because modes of communication have changed dramatically. This fact provokes another set of questions:

  • Has technology made the communicative transaction so impersonal and diffuse that information is now of less value?
  • Has knowledge itself devolved into data, thereby becoming a commodity which requires less protection?
  • Is it possible in this environment that some speech has become so detached from the goals of public discourse and so offensive to private sensibilities that we no longer see a vital need for its protection by the First Amendment?

  • Certainly, there are varied reasons behind efforts to restrict speech: the inclination of individuals to censor others in order to validate their own thinking, the inclination of groups to silence others in order to elevate their own agenda, the predisposition of legislators to regulate speech so as to appear to be addressing intractable problems, and the tendency of those whose speech is targeted to be unorganized, unpopular individuals and groups lacking political power.

    To their credit, Americans have for the most part been able to resist such forces. Rather than turning to legislation when confronted with offensive or unsettling speech, they have more often resorted to more speech and more tolerance.

    Surveys such as this one, with findings both heartening and troubling, are primarily valuable as reminders of the First Amendment's importance as a check on our natural impulse to censor and silence. Were offensive speech and controversial press practices not protected, we might have a society that is calmer, safer, even more civil. But without the First Amendment, our society-and our lives-would be considerably less free.


    (1) “Waning Influence?” Presstime (June 1999), p. 26.
    (2) “ABA Announces Campaign for Cameras in Courts,” The News Media and The Law (Spring 1999), p. 30.