Struggling to survive, First Amendment faces new century

Monday, October 11, 1999

(Editor's Note: This is the text of the keynote address delivered by Paul McMasters at the National Briefing Conference of the American Civil Liberties Union, delivered last week in Washington, D.C.)

The “state of the First Amendment” is not good. Indeed, after more than two centuries of service to both humanity and democracy, it is locked in a struggle for survival.

Each of the five fundamental freedoms of the First Amendment is in trouble.

In religion, elected officials and dedicated interest groups are demanding that the Ten Commandments and the Lord's Prayer be displayed in schools and other public spaces. Local officials go to court to defend the inclusion of religious symbols in town seals. School boards want our kids taught creationism instead of the theory of evolution. The courts are divided on school prayer at graduation and athletic events.

In speech, not a day goes by that a book, a painting, a lyric, a play, a movie or television program isn't targeted for censorship. Most often, this suppression is done in the name of the children. Ironically, children in schools are being punished for the slightest expressive infraction, forced to recite the Pledge of Allegiance, and ordered to attire themselves according to a dress code, or even better, in uniforms.

The press is in real trouble. Juries are handing out multimillion dollar libel awards. Lawyers are creating and judges are indulging new legal strategies that seek to circumvent the First Amendment. These “trash torts” target journalists and their newsgathering techniques rather than the truth or accuracy of their reporting. State and federal legislators propose and pass veggie libel and anti-paparazzi laws as well as other restrictions on the press.

In assembly, literally hundreds of communities across this nation have imposed curfews on young people. Municipalities go to court to defend their right to round up anyone on city streets fitting a police officer's idea of a gang member.

The right of petition, meanwhile, rests secure in its status as a truly orphan freedom. No one, it seems, wants to defend lobbyists. Developers and corporations muzzle citizen activists with Strategic Lawsuits Against Public Participation. Local officials drive interested citizens away from public meetings with rules on when they can speak, how long they can speak, what they can speak about and the manner in which they address their elected leaders. Those who violate those rules can and do go to jail.

These threats aren't just anecdotal or incremental. They reflect and inspire larger stirrings at the highest levels of our government.

In Congress, there are at least three viable proposals to change the First Amendment itself. They include attempts to amend the Constitution to punish flag desecration, to allow prayer in public schools, and to reform campaign finance.

There are a host of legislative assaults, both state and federal, aimed at regulating speech on the Internet, television, movies, video games, records and CDs, even concerts.

In the courts, there are significant challenges to current jurisprudence. Ten of the 44 cases the Supreme Court has agreed to hear so far raise direct or indirect First Amendment issues. Working their way through the judicial system are a number of other cases directed at movies, television, the Internet, Web sites, video games, etc., that seek to redefine such legal concepts as incitement, threat, intent, negligence, reasonable person and foresight.

Some of the most pernicious assaults on First Amendment rights and values have taken root in the halls of academe. Countless scholars have made their reputations by making freedom of speech just another social construct susceptible to manipulation and diminution. Stanley Fish of Duke University captures the flavor of this attitude in his book, There's No Such Thing as Free Speech: And It's a Good Thing, Too. Fish writes that free speech “is just the name we give to verbal behavior that serves the substantive agendas we wish to advance.”

Others like Catharine MacKinnon, Mari Matsuda and Richard Delgado reject the idea that civil liberties and civil rights can complement one another. Even avowed “friends of the Fist Amendment” in academe lend their talents to members of Congress drafting laws to limit freedom of speech and the press or go to court to reduce First Amendment protection for speech they don't like.

The public both drives and reflects these trends. Ordinary citizens are in deep conflict on these issues, as you can see in the State of the First Amendment national survey that the First Amendment Center conducted. In that poll, Americans overwhelmingly supported the First Amendment in the abstract. But when confronted with specific examples of troublesome speech — whether it was indecency, violence, extremism, rap lyrics, racism, sexism — they lost their First Amendment compass.

There is, it seems, a little bit of the censor in each of us.

The point is that all of this is likely to get worse before it gets better. Why? Because these assaults on First Amendment principles are driven by some very difficult issues, issues that provoke much emotion and an impulse to censor. Those issues include violence in the media, hate speech, indecency, concerns for privacy, and whether new technologies such as the Internet and video games push the bounds of free speech beyond what the framers of the First Amendment intended to protect.

These are the things that the majority in our society are observing and objecting to. It upsets their sense of decency, their sense of civility and their sense of security. Their impulse is to silence such speech and increasingly to punish it.

We see a couple of threads lurking in these impulses.

The first is to equate words, ideas and images with such things as pollution, tobacco and guns, thus equating mental discomfort with physical injury. It is only a matter of time, in my opinion, until a massive class-action suit is filed against movie makers, or video-game makers, or television networks, or the record industry, that parallels the claims made by states or municipalities in suits against the gun and tobacco industries.

The second thread is the increasing tendency of people to assert — vigorously assert — their right not to be offended or threatened or insulted. And they are willing to do so in the courts and the legislatures. They are willing, in fact, to undermine their own right to speak their minds and hold strong opinions if they can keep others from doing so.

One of enduring precepts of the First Amendment is that it should protect speech on the fringe — speech that upset, that inflamed, that insulted — from the power of government or the passions of the moment. In fact, protecting the speech of the radical, the revolutionary and the rascal from what de Tocqueville and Lord Acton called the “tyranny of the majority” and what Thomas Jefferson called the “tyranny of the many” is the First Amendment's primary mandate.

Now comes this focus on the right not to be offended, threatened or insulted — and the speech on the fringe faces a new tyranny — the tyranny of the aggrieved.

So what do we do?

I have a couple of proposals. Some might consider them self-evident, but in the current environment, we sometimes lose sight of even the obvious.

The strategies I suggest we must pursue more vigorously include litigation, legislation, education and organization.

Taking those who would suppress or restrict speech to court is absolutely necessary. Attempts to violate the First Amendment rights of ordinary citizens must be met with uncompromising force and passion. Beyond that, litigation has a visceral appeal for the champions of the First Amendment, especially when successful.

Nevertheless, it is expensive, time-consuming and in the larger scheme of things no more than a holding action. In many ways, the same cases keep getting tried over and over. More important, you can't try them all and you can't win all of the ones you try.

It's not enough by itself. Which brings us to legislation.

Wouldn't if be nice if lawmakers honored their oath to uphold the Constitution? Wouldn't it be nice if there were a First Amendment Caucus among the dozens and dozens of other interest groups in Congress? Wouldn't it be nice if there were even one or two members of Congress who could be counted on to stand up for First Amendment principles no matter what the challenge? Wouldn't it be nice if we could name even one bill that has been introduced in the last 100 years that proposed to expand a First Amendment freedom?

It's a dismal picture, isn't it? There seems to be no incentive at all for an elected official to champion First Amendment values. Last week's contretemps over the “Sensations” exhibit at the Brooklyn Museum of Art is a good example. Both the United States Senate and House offered up resolutions in support of Mayor Giuliani's attempts to censor that artwork.

We must find ways to convince our leaders in Congress not to overreact to calls for restricting expressive activities. To do so results in policies that are not just unconstitutional, they waste time and resources and often worsen the situation — or at least delay appropriate solutions while the situation worsens on its own.

It is incumbent on the First Amendment community to encourage friends of the First Amendment to stand for office and to support them when they win. It is also necessary to find ways to encourage pro-First Amendment laws to be introduced. Certainly, that is a less stressful endeavor than trying to fight anti-First Amendment proposals.

Now, I know you're shaking your heads in bemusement at the ingenuousness of that suggestion. And I'll admit it's a little far-fetched in the present environment. But it does not need to be that way, forever.

Which brings us to education.

Education means that we have to turn our attention and devote our resources to expanding understanding of the traditions and values that are fundamental to how we work as a society and as a government.

It has to include adults and leaders as well as children, which means approaches on a number of fronts.

It means setting the agenda rather than reacting to someone else's.

A good example of this is the way those who blame violence in media for violence in the street have set the nature and tone of the public discourse on this important issue. As a result, erroneous information is disseminated, the wrong questions are asked, and the proposals for remedy go seriously awry.

More important, we must find ways to make First Amendment issues and developments more of a presence in the nation's classrooms. We must teach the teachers to teach our children about their First Amendment rights and responsibilities — their heritage.

Education forms the foundation for understanding the efforts to promote and preserve First Amendment principles. It paves the way for the success of other strategies such as litigation and legislation. It increases support for the individuals and organizations that advocate for the First Amendment. More important, if successful, it assures that the number of battles will be reduced over time.

But it requires a massive effort. Which brings us to organization.

Part of the problem for the First Amendment community is the number and diversity of the players: schools, foundations, civil liberties groups; lawyers, judges, journalists, scholars, legislators.

It is a tremendous challenge to persuade these groups and individuals to form alliances, or present a united front, or speak with one voice. That challenge is complicated by the fact that there are significant disagreements about First Amendment rights among these organizations and within the individual organizations themselves.

Thus, First Amendment groups too often are in disagreement or disarray, distracted by too many battles and too few resources. They are vulnerable to the divide-and-conquer tactics of groups out to suppress and restrict freedom of speech.

Each of those groups inevitably is focused on a single purpose, well-organized and well-funded. Each goes after its target with passion and perseverance. Its cause is specific and laden with emotional appeal.

The champions of the First Amendment, on the other hand, must argue the abstract and often appear to be casting their lot with the worst of human impulses and activities.

One of the reasons we find ourselves in the quandary we're in today is that all the sides contending for a voice in the democratic din don't share a common language or a common understanding of our heritage. Until we find a way to change that, we will be fighting the same battles over and over, shouting past one another into the winds of change.

That is why is it so important that we find ways to open the minds of young people, especially, to the fact that First Amendment freedoms are not abstract or theoretical but work in myriad ways to secure their place in society and to secure the future of our democracy.

Throughout this process, we must not assign roles or stereotypes. It is too easy, and often too wrong, to dismiss those who want to silence or restrict some speech as ignorant or evil people. Most of the time they are sincere individuals who fear the impact of some speech on their children and their lives. They have been so thoroughly persuaded that our system works best from an authoritarian or majoritarian perspective that they do not see why they must tolerate speech that offends, threatens or insults.

Such views cannot be changed quickly. It is only in an educational setting over a long period that they will be changed.

That takes courage and vision and patience on our part to invest in that approach.

How will this struggle for survival turn out? It's an honest question, and an essential one.

The answer, of course, depends on whether the current situation persists. If it does, it will worsen. If it worsens, the First Amendment will not survive in its present form and strength.

People in every walk of life today — whether in government, in education, in religion — are questioning whether we need the First Amendment anymore. They seem to be willing to cut out huge hunks of good speech in order to eliminate the bad.

And the people who hold these views have become a multitude of voices of uncommon eloquence and passion advancing the idea that there is some speech that we will just not abide.

If the First Amendment is to survive, their eloquence and passion 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 merits of its appeal and utility, and that society will be strengthened by the process of debate and consideration.

Finally, we must bring our fellow citizens around to the idea that 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.

Paul McMasters may be contacted at