Civil order vs. First Amendment
In recent weeks, Congress has taken on a host of issues that could
WASHINGTON — For many, the guarantees contained in the First Amendment to the US Constitution - freedom of religion, speech, and the press - define what it means to be an American.
But establishing what those guarantees look like in practice may never have been harder than it is today.
Suddenly, Washington seems awash in issues that impact First Amendment rights.
From attempts to regulate Internet pornography to the posting of the Ten Commandments in schools, a renewed push to ban flag desecration, and even campaign-finance reform, lawmakers are struggling to balance historic freedoms against protection from hazards inherent in modern society.
The push for laws that would affect First Amendment guarantees comes from both sides of the political aisle. It could reflect a desire to impose a measure of control on a world that seems to spin faster every day.
"Our elected leaders are picking up on an almost desperate wish by many Americans for more civility and order in their lives,"
says Kenneth Paulson, executive director of the First Amendment Center at Vanderbilt University in Nashville, Tenn.
Some believe that regulating offensive speech is a way to obtain that order, says Mr. Paulson. "That's a myth, not to mention unconstitutional," he continues. "It reflects a society under stress."
For Congress, the main source of that stress today is kids and guns. The recent debate in the House over juvenile-justice legislation ventured far afield into First Amendment territory.
Members rejected an attempt to ban the dissemination to youths of violent videos, movies, and other media as an infringement on free speech. But they approved amendments that would allow posting the Ten Commandments in schools, filtering out objectionable Internet material in schools, and the use of religious items in Columbine High School memorials.
Proponents said these moves are meant to show that Congress "stands with parents," in a phrase used by Rep. Henry Hyde (R) of Illinois, in efforts to raise good kids amid media depictions of violence, promiscuity, and hate.
Trouble is, these actions may well violate the First Amendment admonition that Congress "shall make no law respecting an establishment of religion." In 1980, for instance, the US Supreme Court struck down a state law requiring that the Ten Commandments be shown in public schools.
The prospect of a court fight does not daunt some backers. "This is almost a debate with the Supreme Court," Rep. Asa Hutchinson (R) of Arkansas told Freedom Forum's online news service.
Congress is considering some 30 bills with First Amendment implications, according to the Washington-based Freedom Forum. General categories include legislation that would restrict the availability of objectionable material on the Internet; ban unwanted e-mail; control aggressive celebrity photographers; reform campaign-finance laws; and ban desecration of the flag.
Campaign-finance reform might seem an unlikely constitutional issue. But the Supreme Court has ruled that in politics, money is speech, in essence, and that putting limits on contributions can thus run afoul of First Amendment protections.
Meanwhile, a proposed constitutional amendment that would ban burning or otherwise defacing the US flag passed the House this week. It is a perennial congressional issue, but this time there is a chance, though slight, it could go over the top: Backers are within a few votes of winning Senate approval (though on such a contentious issue those few votes can be hard to find), and 49 state legislatures have gone on record as saying they would approve such an amendment.
"It's not a stretch to suggest that we're in the neighborhood of changing the Constitution to prevent an estimated 10 flag burnings a year," says Paul McMasters at Freedom Forum.
Historically, the freedoms conveyed by the First Amendment have been both clarified and altered when the nation feels it is under stress. Prior to the early 20th century, few cases dealing with freedom of speech or the press reached the Supreme Court. Then, during World War I, a series of high court rulings limited antiwar speech. During the push for civil rights in the early 1960s, a series of libel suits by Southern whites against The New York Times were thrown out by high court justices, expanding speech rights. The Vietnam era Pentagon Papers case solidified the media's right to publish in the face of federal objections.
Today courts tend to be supportive of First Amendment rights, particularly free speech. The Supreme Court, for instance, recently struck down limits on gambling advertisements.
But public outrage over depictions of violence so prevalent in today's media culture could redefine the meaning of free speech for the 21st century.
University of Oklahoma law professor Kevin Saunders points out that no First Amendment right is absolute. Providing pornography to minors is prohibited, and it is not such a legal stretch to consider depictions of violence obscene, and thus limitable, he believes.
That does not mean setting such limits would be easy, says Mr. Saunders. Defining obscenity in relation to violence has "about the same difficulty as ... with sexual material."