Want Clarity About the First Amendment? Good Luck!

Originally posted: December 28, 2012

The list of great First Amendment thinkers in American history includes constitutional framers such as James Madison and Thomas Jefferson. Supreme Court justices Louis Brandeis and Oliver Wendell Holmes also are included. Not likely to join that list is House Minority Leader Nancy Pelosi, who this year endorsed a plan to amend the Constitution so that only the free speech rights of individuals would be protected. If her plan were enacted, corporations (including media outlets), think tanks, political action committees and virtually any organization would be subject to government interference with their free expression rights.

The proposal has little chance of passing Congress and less chance of ratification by the states. It does demonstrate, however, that some politicians at the highest level of government have warped visions of what the First Amendment entails.

The First Amendment remains one of the most confusing aspects of American society. The year 2012 saw many free expression struggles, but little clarity emerged as courts failed to get a full handle on the meaning of free speech. Maybe that’s what the Framers wanted — an ongoing wrestling match that allows First Amendment principles to be roundly debated by each generation.

A review of some important cases from 2012 shows the difficulty in refereeing the First Amendment:

The Supreme Court ruled last summer on two cases involving broadcast indecency. In both situations, the court canceled penalties against broadcasters for airing indecent content. The court rulings, however, were only on procedural grounds, leaving unanswered the bigger question of whether expletives are allowed under the First Amendment. Federal Communication Commission lawyers are scratching their heads, since they have little guidance on how to deal with more than 9,000 pending indecency cases. So far, the FCC shows no sign of addressing these cases, while broadcasters keep pushing the edges of content limits.

The Supreme Court raised eyebrows this year with a 6-3 ruling against the Stolen Valor Act, a law passed by Congress in 2006 that made it illegal for a person to lie about receiving military honors that were not really earned. The majority said lying about military awards is protected as free expression. Interestingly, as Justice Samuel Alito wrote in his strong dissent, it is still a crime to actually wear a military medal one did not earn. In a rare gesture, Justice Anthony Kennedy, writing for the majority, gave instructions to Congress about how to rewrite the law so that it would pass constitutional muster — so maybe he really doesn’t want people lying about military honors.

The Food and Drug Administration tried to get in the business of forced speech when it ordered tobacco companies to put large, graphic, anti-smoking messages on cigarette packs. The District of Columbia Court of Appeals stopped that initiative.

Congress has done nothing to address violent content in media, but it did enact the CALM Act, a law requiring broadcasters to keep the volume of commercials at the same as the surrounding program. The law won’t withstand a legal challenge, once a broadcaster is sanctioned, but Congress feels better in the meantime.

The Seattle Public Library has rules against sleeping in the library and talking too loudly, but it did nothing this year to stop patrons from watching porn on computers that are in view of children. The American Library Association, you see, has a policy against censorship. Porn is OK; sleeping is banned.

A 6-year-old girl in North Carolina was prevented from reading a poem at a school Veterans Day ceremony because it had the word “God” in it. Superintendent Gerri Martin of the McDowell County Schools said she wanted to uphold “separation of church and state.” Martin should read the Supreme Court’s Tinker v. Des Moines decision in 1969 that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Then there was Sean Hannity at a broadcasters meeting complaining that an advertiser boycott of fellow talker Rush Limbaugh somehow disrupted Limbaugh’s free speech. Well, Limbaugh can still say whatever he wants on the radio, but advertisers have free expression to not buy ads on his show.

Chief Justice John Roberts leads a Supreme Court that is developing a reputation for robust support of the First Amendment. Look for this court to further expand free expression rights, continuing the national dialogue on this perplexing amendment. Just don’t expect easy or precise answers.

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