Balancing our free speech rights away

By June 16, 2005

Americans take a great deal of pride in their right to think, believe and speak as they wish. But that right is neither as broad nor as constant as we would like to think. Even in America, we have to be careful of what we say. You don’t have to be a pornographer, a defamer or an extremist to be charged with a speech crime.

Even so-called “high-value” speech such as political discourse has its limits. For example, the campaign-finance reform law enacted in 2002 criminalizes political advertising. Incredibly, the Supreme Court upheld these provisions. Whether you are the ACLU or the NRA, if your ad mentions a federal candidate’s name 60 days before the general election or 30 days before a party convention or primary, you will be subject to criminal sanctions.

A publisher who promotes a book written by a candidate or a producer who touts a documentary that praises or criticizes a candidate during those periods also invites prosecution.

Speech crimes don’t stop there, of course. In the last year alone, television and radio broadcasters have paid out millions of dollars in fines for words and images that the First Amendment protects if they appear on cable or satellite or the printed page.

There is a wide range of words and thoughts, in fact, that can get you in trouble.

Take for instance the nation’s college campuses, where robust speech and inquiry supposedly claim sanctuary. Nevertheless, students – and faculty – are frequently punished for mistakenly thinking the First Amendment means what it says. The penalties can be swift and harsh.

In a recent column, Greg Lukianoff of the Foundation for Individual Rights in Education catalogued just a few recent punishments at some of our finer institutions of higher learning, which have evicted students from campus housing, suspended them from classes, sentenced them to mandatory psychological counseling, threatened them with expulsion and charged them with crimes ranging from harassment to disorderly conduct – all for engaging in expression that someone found objectionable.

There is more than a trace of irony in the fact that the most freedom-loving people on the planet have decided collectively that some words, in some situations, are just too threatening to good order and comfort to allow.

But there it is. We can and do punish words far beyond that narrow list of unprotected expression that includes obscenity, defamation, fraud and fighting words. Indecency, hate speech, violence in the media, advertising aimed at children – you name it and there’s a group of Americans who believe it shouldn’t have First Amendment protection.

So we lower the value of speech that we do not consider as contributing sufficiently to the marketplace of ideas or that does not help govern or that might inflict injury or give offense. We do this in the name of the children, or morality or civility. This process is called a “balancing” of other rights and interests with the freedoms guaranteed in the First Amendment.

When used rarely and carefully, such balancing can be an instrument of reason. When invoked unwisely, however, it can be a tool of the censor. In the wrong hands, balancing gives comfort to those who would subvert others’ rights. They may well be tempted to ask, “Why censor when you can silence? Why be civil when you carry the biggest stick? Why debate when you can intimidate? Why be tolerant if you’ve got the numbers on your side?”

The First Amendment is a forceful yet fragile declaration of fundamental rights in a truly democratic society. It stands firmly on three substantial pillars of a democratic society: a constitutional guarantee, an independent judiciary and an informed and supportive citizenry. If one pillar wobbles, the First Amendment shudders.

There’s ample evidence that the First Amendment is on shaky footing right now.

The constitutional guarantee is not necessarily secure as prospects for congressional approval of a flag-desecration amendment brightened with changes in the Senate resulting from last fall’s elections. If Congress sends the amendment to the state legislatures, ratification by at least 38 is a distinct possibility. If that happens, the First Amendment would be changed for the first time in the history of our nation.

As for judicial support, the Supreme Court has heard 15 free-expression cases over the past three years and denied the First Amendment claims in all but two. Since 1994, the highest court in the land has taken up 58 such cases and upheld the First Amendment claim in half of them. “The high number of nearly consecutive denials of such claims during the past three terms is unprecedented in the Court’s modern history,” observes First Amendment scholar Ronald K.L. Collins.

Public support also is a worry. Four in 10 Americans believe the First Amendment goes too far in the rights it guarantees, according to the national State of the First Amendment survey. Significant numbers support further regulation of free expression.

All of that combines to heighten concerns about efforts to balance other rights and interests against First Amendment principles.

Balancing, by definition, turns over to those in power and the majority the right to direct and decide what those without power or outside the majority can say. That, of course, is precisely what the First Amendment was written to prevent.