Speaking Freely: The Future Of The First Amendment

Dec 6, 2018

The Newseum is hosting a live discussion on the First Amendment featuring Joshua Johnson and Eli Pariser Friday. You can watch it here at 2:30.

“The First Amendment has become much more than a legal doctrine,” Columbia University President Lee Bollinger wrote in the Columbia Journalism Review. “It is a core part of the American identity.”

“As much as it is about ‘rights’—the right of dissent, of sovereignty residing in the citizenry and not in the government, and so on—it is also about the character of the society,” Bollinger continues.

And that’s why questions, criticisms, or threats to the First Amendment can cause such a visceral reaction among Americans.

But how did we make it to this interpretation? Several court cases, dating back a century, made it so.

In 1919, the Supreme Court ruled in Schenck v. United States that speech could be limited if it presented a “clear and present danger” to the country. Those words remained inexorably linked to interpretations of the First Amendment for decades.

From The Constitution Center:

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.

It was only a year later that [Supreme Court Justice Oliver Wendell] Holmes [Jr.] attempted to redefine the standard. In the 1919 case of Abrams v. United States, the Justice reversed his position and dissented, questioning the government’s ability to limit free speech. Holmes did not believe that the Court was applying the “clear and present danger” standard appropriately in the case, and changed its phrasing. He wrote that a stricter standard should apply, saying that the state could restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

But the “clear and present danger” standard would last for another 50 years. In Brandenburg v. Ohio, a 1969 case dealing with free speech, the Court finally replaced it with the “imminent lawless action” test. This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.

On similar grounds the same year, the court upheld a conviction under the Espionage Act against politician Eugene V. Debs, who had given a speech protesting U.S. involvement in World War I and allegedly encouraged his audience to obstruct the recruitment of soldiers.

When Congress repealed the Espionage Act, President Warren G. Harding commuted Debs’s sentence. And in subsequent years, the legal interpretations of the First Amendment evolved. Some of this was driven by cases involving political activists or the country’s newspapers.

More from Bollinger (the following contains a quoted curse word):

The Court in New York Times Co. v. Sullivan (1964) declared that the central purpose of the First Amendment was to ensure a political system in which discussion of public issues could be “uninhibited, robust, and wide-open.” Over the next decade, the Court further entrenched this interpretation in a series of landmark decisions—from protecting the hateful and inflammatory speeches by participants in a Ku Klux Klan rally (Brandenburg v. Ohio, 1969), to denying the government’s attempt to use “prior restraint” to prevent newspapers from publishing the classified information in the Pentagon Papers (New York Times Co. v. United States, 1971), to safeguarding offensive speech in public places, like that of the young man who walked through a Los Angeles courthouse wearing a jacket that said “Fuck the Draft” (Cohen v. California, 1971). Taken together, this jurisprudence pushed protections of speech and the press far beyond where any nation, then or now, has been willing to venture.

Today, many debates about the First Amendment relate to college campuses, Facebook, and the White House.

The debate even extends to the high schools. In Arkansas, the Har-Ber Herald, a student newspaper, was suspended and its faculty advisor was threatened with termination after they published a months-long investigation into student transfers and football. The article was later put back online. “They are like, ‘Well, you raised an uproar, we’re going to try and silence you,’” editor-in-chief Halle Roberts, 17, told BuzzFeed News.

What does the future of the First Amendment look like? Where do its biggest challenges come from? And how can we protect it?

GUESTS

Lee C. Bollinger, President, Columbia University; first amendment scholar; co-editor of “The Free Speech Century” with University of Chicago Law Professor Geoffrey Stone

Eli Pariser, Fellow, New America; author, “The Filter Bubble”;

former executive director, MoveOn.org; co-founder, Upworthy;

@elipariser

For more, visit https://the1a.org.

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