The First Amendment turns 215 years old today. At its birth as it is today, this constitutional guarantee was a breathtakingly beautiful testimony to the value of freedom of conscience and expression.
When it was ratified as part of the Bill of Rights in 1791, the First Amendment secured all other freedoms because it provided protection for a nation of citizens to question their government, to foment change, to fight injustice. It encouraged a democratized conversation in which individuals could freely create and criticize, give voice to passion and pain, give substance to their dreams.
It invited all Americans to proclaim their power as citizens and their worth as human beings.
The promise and wisdom of that compact has been affirmed time and again over the course of two centuries. We have amassed a remarkable treasury of rights and progress, history and scholarship, science and art, all owing their existence to free speech and inquiry.
Today, however, the flow of information at times seems overwhelming. We struggle to separate the good from the bad, reality from fantasy, the safe from the dangerous.
Rather than celebrate, then, many of us have become anxious and fearful about speech that we find to be too free, too coarse or too threatening to our values and our security. Constant and rapid advances in new forms of media provoke new modes of speech — and thus more anxiety.
The more ways we find to communicate with one another, the more reasons we find to silence one another. We don’t openly censor, of course, so much as we try to regulate. We seek comfort in rating speech according to its content or ranking it according to its value. And when we encounter speech that doesn’t square with our view of the world, we prefer punishment to persuasion. We crave serenity yet reject the balm of tolerance.
We toy with the tempting idea that we would be a lot better off if all speech came with a stamp of approval from the government, the majority or the most vocal advocacy groups.
In this environment, every day produces new assaults on First Amendment rights and values.
Polls show significant numbers of Americans uneasy about or ignorant of our free-expression traditions and principles.
Protesters are deterred and muzzled as officials herd them into “free speech zones” and jail cells. Dissent is routinely portrayed as treason.
Radio and TV broadcasters face severe penalties if they fail to sufficiently cleanse the image of our culture they present to their audiences.
Activists from the left call for the suppression of commercials targeting kids. From the right, they demand punishment for over-the-air indecency. In the center, parents yearn for government regulators to monitor the media for them.
Activists challenge libraries and schools for the books they offer.
Legislators propose laws to control Internet excess and rein in video-game violence.
Government prosecutors and lawmakers threaten journalists with prison if they don’t give up their sources and notes and stop exposing embarrassing secrets.
Daily, we enlarge the list and expand the definitions of speech we want to restrict: indecency, violence, hate speech, commercial speech and dissent, to name a few.
And in recent years, the nation’s highest court has taken fewer opportunities to affirm free-speech rights. In its last four terms, the Supreme Court has accepted for review a fraction of the free-expression cases it used to — and it has upheld the First Amendment claims in only a fraction of those.
It is an affront to the vision of those who brought the Bill of Rights into being and those who have defended it throughout our history that we have sent to prison, denied a right or privilege or otherwise punished thousands upon thousands of good Americans who simply believed that the First Amendment meant what it said.
Each incursion into First Amendment freedoms is generally regarded as an isolated and incremental event, essential to national security, law and order, personal privacy, social civility, cultural refinement and protection of children. Cumulatively, these concerns add up to a debilitating fear that the right combination of words, images or ideas will cause calamity.
A similar sort of fear of expression caused Justice Hugo Black to write in a 1961 Supreme Court decision: “This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us.”
“The choice is clear to me,” he continued. “If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free.”
Happy Birthday, Freedom.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, VA. 22209. E-mail: firstname.lastname@example.org.