One of the challenges of having the great freedoms provided under the First Amendment — to speak and write freely, to worship as we choose, to gather and petition the government for change — is the question of exactly what to do with those freedoms.
The 45 words of the First Amendment don’t say a word about being fair or arbitrary, responsible or reckless, tasteful or rude, considerate or self-focused, wise or foolish.
And it’s precisely in those gaps that disputes and misunderstandings, as well as historic moments and majestic advances, have occurred under the banner of free expression.
Civil rights workers voicing their strident cries of “freedom now” could have been silenced more often by racists who controlled government forums at all levels at various times in our nation’s history, but for the protections of the First Amendment.
At one time or another, what some called “fringe” or minority religions — which, lest we forget, is how some would have described Judaism and Catholicism earlier in U.S. history — might have been banned or marginalized by the intolerant in our society, but for the protections of the First Amendment.
The same goes for a free press — which at its best often offends some in the process of informing many. And we can all think of moments when we would rather not see groups with messages we deplore gathering in the public square to make noise about their particular views and values.
But for the protections of the First Amendment, what is this nation’s “marketplace of ideas” likely would be a great deal smaller — and a lot less interesting and valuable.
Which brings us to a challenge confronting newspaper editors and network news executives in the United States: how they should report the global violent reaction stemming from a Danish newspaper’s publication last October of cartoons showing the Prophet Muhammad — publication done in direct defiance of an Islamic religious tenet that forbids such images in any form, negative or positive.
There is little question that the U.S. news media have the right to publish those images. Though a computer search shows laws prohibiting or punishing “blasphemy” in various forms remain on the books in several states — Massachusetts, Michigan, Oklahoma, South Carolina and Wyoming among them — it’s doubtful those laws would survive constitutional scrutiny. That circumstance was set in 1952, when the Supreme Court — in a notable ruling, Burstyn, Inc. v. Wilson — decided that the New York Board of Regents could not ban Roberto Rossellini’s film “The Miracle” under regulations barring “sacrilegious” films.
A few U.S. newspapers have published one of the images shown here, and some news broadcasts have shown glimpses of the cartoons. But most U.S. news organizations have not, though some provided Web links to where the images were posted.
Overshadowed is a contretemps in recent days over an editorial cartoon of a wounded U.S. soldier that sparked a complaint from the Pentagon to The Washington Post.
In this instance, the cartoon soldier, who has lost his arms and legs, is being attended to by “Dr. Rumsfeld.” The caption makes ironic use of recent remarks by Defense Secretary Donald Rumsfeld that included a reference to American troops in Iraq as “battle hardened.” The letter from the military’s top brass, the Joint Chiefs of Staff, said the cartoon was “beyond tasteless.”
While mobs attack embassies over one set of cartoons, the most powerful military establishment on the planet finds a letter its most effective means of protest — at least to date. Is there a better demonstration of the “shield” of the First Amendment?
That’s not to say we don’t use U.S. law to prohibit some images and voices.
Pornography using children is illegal, but the illegality rests in laws protecting children from being harmed by sexual exploitation, not in the majority’s distaste for the subject matter. The U.S. Supreme Court recognized a few narrowly defined “fighting words” that lie outside the realm of protected speech. But as a congressional spouse showed recently in a flap over T-shirt slogans in the House visitor’s gallery before the State of the Union speech, citizens can make even “colorful” remarks criticizing police and not be hauled off to jail. And although “time-place-manner” restrictions can restrain a speaker, that restraint has legal traction depending on whether the speech was delivered in a public park at noon vs. a residential area at 3 a.m., not because of the content of the speech.
Freedom of the press and free speech protects a wide, diverse and potentially offensive range of expression — in art, images, speech, music and expressive actions. Here’s where the issues of “could” and “should” comes into play.
The Danish newspaper Jyllands-Posten and a variety of other European newspapers said they published the Muhammad cartoons to show their freedom of press and to criticize violent Islamic extremism. (It’s important to note the First Amendment’s protections are not mirrored in other nations.)
In the U.S., the “heckler’s veto” — shouting down an unpopular speaker — finds little favor, either in law or society. But there may well be some sentiment, caused by a genuine fear of domestic or international reaction, against speech or publications in the U.S. that will likely result in extreme acts of violence.
On their own, without government directive, most U.S. newspaper editors have decided that the immediate risks of provoking violence or of being offensive outweigh the need to publish the images. The decision will be ever-more troublesome if this one-time policy decision appears to be solidifying as permanent self-censorship. How far to be bound by the tenets of one faith in a nation that respects all faiths?
My colleague and First Amendment Center Founder John Seigenthaler observes that much of the imagery of Muslims and Islam in the United States — by government and as reported by media — is connected to violence and terrorism. If American newspapers cultivate a genuine history of engaging Muslims in America and elsewhere about their concerns, a single controversial decision might be easier to understand and discuss, if not accept.
The First Amendment has been a traditional shield for the protection of religious views from government interference. In that spirit, the situation now confronting American editors – and in effect all Americans — is how to exercise basic freedoms in the face of a “sword” of a call for religious sensitivity that is backed to the hilt by the threat of global violence.
But for a free press that both protects and is protected by the First Amendment, the question is “how” — not “whether.”
Gene Policinski is executive director the First Amendment Center. Letters can be addressed to either: 1101 Wilson Blvd., Arlington, VA 22209; or 1207 18th Ave. South, Nashville, TN 37212. E-mail: firstname.lastname@example.org.