First Amendment topicsAbout the First Amendment
print this   Print         E-mail this article  E-mail this article

Analysis: 2004 State of First Amendment survey report

By Paul K. McMasters
First Amendment Ombudsman

One theme persists over the eight years that the First Amendment Center has conducted the State of the First Amendment survey: In the minds of many Americans, there is a troubling disconnect between principle and practice when it comes to First Amendment rights and values.

Americans in significant numbers appear willing to regulate the speech of those they don’t like, don’t agree with or find offensive. Many would too casually breach the wall between church and state. There is, in these surveys, solid evidence of confusion about, if not outright hostility toward, core First Amendment rights and values.

The 2004 State of the First Amendment survey presents yet another variation on the theme.

By a large majority, Americans say parents bear the primary responsibility for protecting their children from sexual material in the entertainment media, yet they are willing to broaden government regulation in that area.

Nearly eight in 10 believe the press has a government watchdog role, but four in 10 believe the press has too much freedom.

A majority believes that speech offensive to religious groups should be allowed, but speech offensive to racial groups should not be allowed.

Most say students do not have enough religious freedom in public schools, but 72% would not allow a student to wear a T-shirt with an offensive message or picture.

This year’s survey directed a number of questions toward the measurement of public attitudes about issues in today’s headlines: the effort to amend the Constitution to ban flag-burning; proposals to expand regulation of so-called indecent material in the media; attempts by government officials and private advocates to lower the “wall of separation between church and state”; and scandals involving made-up stories and facts at major news organizations.

The flag-desecration amendment poses one of the greatest challenges ever to the First Amendment. The Supreme Court has struck down legislative bans on flag burning or desecration each time it has taken up the issue. The House of Representatives has passed the proposed amendment four times in recent years, but Senate votes have fallen just short of the two-thirds majority needed to send it directly to the state legislatures for ratification.

That slim margin may not be there this year, however. The House has sent the amendment to the Senate once again. But during an election year and a time of national distress over the war on terrorism, including fighting in Iraq and Afghanistan, opponents of the amendment may not prevail this time. Ratification would be almost certain, and the First Amendment and the expression that it protects would be radically changed.

Proponents of the amendment cite overwhelming public support for such an amendment in some surveys, but when asked directly in the SOFA survey if they would amend the U.S. Constitution for such a ban, 53% say they would not. When the 45% who supported the amendment were asked as a follow-up whether they would still support the amendment if they knew it would be the first time in our history that the Bill of Rights would be changed, 16% switched to the opposition column.

A series of new questions in this year’s polling produced some fascinating findings about sexual material in the entertainment media. Following the sensational fallout from singer Janet Jackson’s partially exposed breast during the halftime show of the Super Bowl, advocacy groups pressured the Federal Communications Commission and Congress to rein in the media’s perceived excesses by enacting tougher laws, strengthening regulation and dramatically increasing fines for indecent programming.

This survey offers evidence, however, that a large majority of Americans believe that parents, not government, should be shielding children from such material. When asked who should be primarily responsible for keeping inappropriate material away from children, 87% said parents for printed material, 81% for television programming, 77% for radio programming, and 71% for movies.

Media executives were a distant second, ranging from 10% to 24%, and government officials were an even more distant third, with 5% or less in each of the categories.

Despite these findings, 21% of the survey respondents say there is too little regulation of television programming and 18% for radio programming. Further, healthy majorities thought government officials should regulate references to sexual activity in both daytime and nighttime hours for broadcast television and radio programming. More strikingly, 55% think that it would be all right for government to similarly regulate cable programming, something the FCC has not yet attempted to do because of First Amendment concerns.

A final irony in the entertainment indecency findings: While most Americans say parents bear primary responsibility for protecting children from sexual material, many parents are not using the V-chip to help do that. This technology, required in all new television sets beginning four years ago, allows parents to block certain programming. When asked whether TV sets in their homes were equipped with the V-chip, only 35% said yes. Of those, only 24% were using it to block some programs.

Although the issue of whether to remove “one nation under God” from the Pledge of Allegiance has been much in the news the past year, public opinion did not change from the previous year. The Supreme Court accepted a case challenging the phrase but failed to decide the direct issue. Nevertheless, seven in 10 Americans say that the phrase does not violate the constitutional principle of separation between church and state. Interestingly, only 19% feel that it is a religious statement; 71% view it instead as primarily a statement related to the American political tradition.

A 62% majority endorsed the idea of sending students to religious or other private schools using vouchers or credits provided by taxpayers. When asked about using government money to fund drug-abuse prevention programs run by religious institutions or churches, 66% said they would approve. And 68% said that government officials should be allowed to post the Ten Commandments in public buildings.

A number of questions the SOFA survey has posed repeatedly since 1997 indicate how wary some Americans can be about the notion of “too much freedom” —

  • 30% say the First Amendment goes too far in the rights it guarantees; although this is a significant drop from the 49% spike in 2002 (apparently related to fear and concern in the wake of Sept. 11, 2001), three in 10 is still an unsettling number.
  • 42% say the “press in America has too much freedom,” although that number drops to 36% when the question is whether “Americans have too much press freedom.”
  • 41% disagree with the statement that newspapers should be allowed to freely criticize the U.S. military.

When the First Amendment Center began sampling public attitudes toward First Amendment freedoms eight years ago, the goal was to confirm, dispel or elucidate perceptions about the First Amendment and to provide data and track trends for scholars, policy-makers, advocates and others. Another goal was to identify areas where more education was needed.

The schools haven’t been much help, apparently. Two-thirds of Americans give them low grades, saying they have done a “poor” or “fair” job in teaching students about the First Amendment. Only 7% say the schools have done an excellent job.

So the educational challenge is great. Just how great is reflected in how poorly Americans do when asked to name the five fundamental freedoms the First Amendment guarantees. Freedom of speech was the most frequent response, but even then only 58% could cite it. The recognition or recall of First Amendment freedoms slides steeply down hill from there: 17% are able to list religion, 15% press and 10% assembly. Only one in 100 Americans could name petition.


Support of first freedoms back to pre-9/11 levels

But backing for some press-related freedoms a less-hopeful sign in State of the First Amendment 2004 survey. 08.23.04

Commentary on the 2004 report

By Gene Policinski Despite some improvement, Americans surveyed still contradict themselves in some of their attitudes toward First Amendment freedoms. 06.28.04

Freedom takes strong stomachs, but many of us have indigestion

By Charles C. Haynes Survey shows Americans still have trouble endorsing specific First Amendment liberties they claim to support overall. 07.11.04

Celebrity privacy claims trump public justice
By Paul K. McMasters Stars often demand special treatment in court — incredibly, judges often grant it. 08.01.04

Public: low marks for nation's press
By Paul K. McMasters 2004 survey with American Journalism Review finds deep belief in news media bias.


2004 State of the First Amendment


Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

Last system update: Monday, February 8, 2010 | 16:51:14
About this site
About the First Amendment
About the First Amendment Center
How to contribute
First Amendment programs
State of the First Amendment

Religious liberty in public schools
First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links