We have nothing to fear except a fearful government

Wednesday, March 8, 2000

From Seattle to Annapolis, recent events have reminded us that fear — pure, unadulterated fear — is one of the most significant threats to First Amendment freedoms.

In countless instances over the last two centuries, we have seen frightened officials at every level of government punish speech. In some cases, they feared the speaker. In others, they feared the message. In still others, they worried about public reaction. Whatever their anxieties, these officials believed they could calm their fears by repressing the offending speech.

Unfortunately, government’s fear of speech shows no sign of subsiding. In Seattle, for example, jittery school officials suspended a high school student for creating a Web site that included “obituaries” of classmates. While such a Web site should raise concerns in this post-Columbine era, the “obituaries” in this case were prepared with the classmates’ consent and, in some cases, at their request. Even teachers had praised the site, which the student created at home.

Although no student or parent had complained, although no student was threatened and although the student who created the site hadn’t exhibited any violent or anti-social tendencies, school administrators suspended him when a television news report suggested the site contained a “hit list.” The officials acted even though the student voluntarily shut down the site after the television broadcast.

The student challenged the suspension in federal court. U.S. District Judge John Coughenour quickly struck it down, holding that school administrators lacked the authority to punish the student for exercising free-speech rights outside of school. Coughenour also criticized the administrators for acting without any evidence of threats or harm.

First Amendment rights are also under attack from fearful government officials in Annapolis, Md., where the city has passed an anti-loitering statute that limits the ability of residents to meet on the street and converse with neighbors. By allowing police to shoo people from the streets, these officials hope to curb drug activity in a predominantly black housing development.

Just last year, however, the U.S. Supreme Court held in Chicago v. Morales that a similar Chicago ordinance unconstitutionally violated residents’ First Amendment right to assemble. Annapolis officials nevertheless continue to enforce their ordinance, claiming it passes First Amendment muster because it doesn’t prohibit speech.

This cramped notion of the First Amendment, however, is no defense, as the Chicago ordinance wasn’t directed at speech either. The First Amendment right to assemble, while perhaps less celebrated than the right to free speech, is equally important and vital to a democratic society. Asserting the importance of this right, the American Civil Liberties Union recently filed suit attacking the constitutionality of the Annapolis law.

Escaping legal action — at least so far — is the Denver Police Department, which recently broke up a peaceful protest on public property. As members of the Justice for Mena Committee handed out leaflets in a downtown Denver pedestrian mall, police approached and threatened to arrest any protester who refused to leave. The group was protesting the Sept. 29 killing of Ismael Mena, who was shot to death by police in a no-knock raid at the wrong house.

The police claimed they broke up the demonstration because a security guard at the nearby World Trade Center complained about the group’s use of a bullhorn. In what undoubtedly will be one of most ignorant statements any police officer will make this year, Denver police detective Mary Thomas defended the police action, saying, “If there’s a complaint, the First Amendment doesn’t apply.”

If the First Amendment were that simple, of course, governing would be easy. Someone doesn’t like a Web site? Shut it down, lock up the creator. Having a hard time with street crime? Get everyone off the streets. That group too loud, too controversial, too unpopular? Send its members home. Government officials then would have little to fear.

The rest of us, however, would be scared to death. And, unfortunately, we wouldn’t be able to tell anyone.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.