Testing freedom: a year in the life of the First Amendment

Sunday, December 12, 2004

The First Amendment protects a certain amount (many believe far too much) of exuberance (many would use a stronger word) in this nation’s discourse and entertainment. Americans are surrounded by tension, strife and fear, and in order to bring more calm and order into their lives many would do almost anything — including limiting what the First Amendment protects.

On Dec. 15, the First Amendment will be 213 years old. It is a good time to review First Amendment developments and issues in the news over the past year as one way of measuring the amendment’s vitality after more than two centuries of service to democratic values.

Because the First Amendment protects all other freedoms we enjoy, it is one of the most powerful of our constitutional guarantees. And because it protects beliefs and expression that may offend our deepest convictions, it is one of our most fragile. It should come as no surprise, then, that day-in and day-out in the life of this nation the First Amendment’s five fundamental freedoms of conscience, speech, press, assembly and petition are constantly being tested.

These challenges to First Amendment freedoms visit every community. And no matter who you are, where you live or where your sympathies lie on the religious, political or social spectrum, ultimately you will be affected by these conflicts.

Living in a democracy, Americans are accustomed to the rule of the majority and the preferences of the mainstream. First Amendment freedoms are so often tested because they are a caution to that majoritarian impulse. They ensure that individual voices are not silenced and that unpopular views are not suppressed.

Still we persist in giving in to the impulse in an attempt to make others think like the rest of us, speak like the rest of us and believe like the rest of us — or keep quiet.

Thus, we found ourselves in many pitched battles over freedom of expression during the past year. Some of us wanted to restrict or change the content of textbooks to suit our separate ways of viewing the world. We asked the Federal Communications Commission to cleanse coarseness, indecency, hate speech and violence from radio and television. We tried to control campaign contributions and dilute dissent in political discourse.

Meanwhile, government officials tried to rein in what they considered the excesses of the press. More than a dozen journalists faced huge legal costs and possible jail time as the Justice Department became more aggressive in trying to find their confidential sources. Increasing secrecy became a virtually impenetrable barrier to public and press access to essential information about government policies and actions.

And religious rifts in our society deepened as we tried to find a way to deal with such issues as the teaching of how life on Earth began, reciting the Pledge of Allegiance in public schools and the posting of the Ten Commandments in government buildings.

These are not easy issues. But any fair and enduring resolutions must emerge from within the framework and the perspective of our First Amendment freedoms.

Unsurprisingly, these disputes often wind up in the judicial system. Surprisingly, however, the U.S. Supreme Court has not been as active in this process lately. The nation’s highest court usually accepts five to eight free-expression cases for review each term, but for three terms running, it has accepted only three. More telling, in 11 of its last 12 free-speech rulings, the Supreme Court has rejected the First Amendment claims. All will diminish in some measure, perhaps in ways not anticipated, the right each of us has to raise our voice in freedom’s conversation.

In many ways, 2004 was an unsettling time for the First Amendment. But its stiffest challenge ever may be next year. For years, proponents of a flag-desecration amendment have been stymied in getting the super majority needed for the measure’s passage in the Senate — only by three or four votes. That razor-thin margin may have melted away in this fall’s election.

Now, there is the real possibility that in the coming year Congress will finally pass and send on to the states for certain ratification a constitutional amendment that will amend the First Amendment for the first time in its 213 years of existence.

Under such circumstances, we all need to wish the First Amendment a happy birthday and many happy returns — and mean it.

Here’s hoping that the coming year will bring a better understanding and support of this vital compact between a government and its people, between the majority and the individuals outside it. It is after all the most essential guarantor of our freedom and our future.