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he Freedom Forum is a nonpartisan, international foundation dedicated to free press, free speech and Tfree spirit for all people. The foundation pursues its priorities through programs including conferences, educational activities, publishing, broadcasting, online services, fellowships, partnerships, training and research. STATE OF THE The Freedom Forum funds only its own programs and related partnerships. Unsolicited funding requests are not accepted. Operating programs are the Media Studies Center in New York City, the First Amendment Center at Vanderbilt University in Nashville, Tenn., and the Newseum at The Freedom Forum World Center headquarters in Arlington, Va. It also has operating offices in San Francisco, Cocoa Beach, Fla., London, Hong Kong, Buenos Aires and Johannesburg.

The Freedom Forum was established in 1991 under the direction of Founder Allen H. Neuharth as successor to the Gannett Foundation. That foundation had been established by Frank E. Gannett in 1935. The Freedom Forum does not solicit or accept financial contributions. Its work is supported by income from an endowment now worth nearly $900 million in diversified assets.

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1101 Wilson Blvd. CHARLES L. OVERBY Donna Demac Arlington, VA 22209 Chairman and Chief Executive Officer FIRST (703) 528-0800 PETER S. PRICHARD President www.freedomforum.org ALLEN H. NEUHARTH Founder A MENDMENT BERNARD B. BRODY, M.D. To order additional copies of this report, call 1-800-830-3733. GEN. HARRY W. BROOKS JR. JOHN E. HESELDEN MADELYN P. JENNINGS MALCOLM R. KIRSCHENBAUM BY DONNA DEMAC BETTE BAO LORD BRIAN MULRONEY JOHN C. QUINN CARL T. ROWAN JOSEFINA A. SALAS-PORRAS JOHN SEIGENTHALER ALAN B. SHEPARD JR. State of The First Amendment

State of The First Amendment

by Donna Demac

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State of the First Amendment By Donna Demac

Project Coordinator: Paul K. McMasters, First Amendment Ombudsman Editor: Brian Buchanan Designer: David Smith

Publication: #98-F01

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Overview xv

Chapter 1 Freedom of Speech 1 Free Speech Roundtable 19

Chapter 2 Freedom of the Press 31

Chapter 3 Freedom of Religion 49 v Religious Liberty Roundtable 61

Chapter 4 Freedom of Assemby and Petition 71 Chapter 5 Education 85 Chapter 6 Attitudes about the First Amendment 93

Appendix A Survey Questions 101 Appendix B Survey Methodology 115 Appendix C A Year in the Life of the First Amendment 117 Appendix D Contributors 125 Appendix E Bibliography 127

About the Author 131

Acknowledgments 133

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Foreword by John Seigenthaler

his study, aptly en- ing, news media criticism or titled State of the First the public display of offen- As we move T Amendment, is a sive art, they are quick to timely and important report defect. They are, to use Tom on the popular standing and Paine’s words, the potential toward a legal status of the values em- “summer soldiers and sun- bodied in the First Amend- shine patriots” of the com- new century, ment. As we move toward a ing millennium. new century, those values— The author of the report, First Amend- embraced 206 years ago by Donna Demac, a lawyer, au- vii an informed and fearful citi- thor and First Amendment ment values zenry—are, as the title sug- advocate, has written a gests, under attack. Scholars, thoughtful narrative that are under lawyers, journalists, ethicists brings into focus all of the and other professionals present challenges and con- close to the struggle to pro- troversies threatening these attack. tect citizen rights against vital citizen rights—reli- government regulation, will gious liberty, freedoms of find this an extremely valu- speech and press and the able resource. rights of peaceable assembly State of the First Amend- and petition. Her text will ment may be even more serve to update and broaden valuable as a learning docu- the perspective of experts ment for those who know and hopefully will also edu- little or nothing of First cate and enlighten those Amendment rights but who who have little or no under- naively assert their support standing of the unfriendly of it. Inevitably, when asked shots repeatedly aimed at if they support the First the amendment. Amendment, they embrace A significant aspect of the 45 words and express the study is the excellent opposition to any changes. poll in Chapter 6. The Then, confronted by the re- thrust of the questions and ality of community conflicts the depth of the sample pro- such as school prayer, anti- vide more than ample back- abortion protests, flag-burn- ground to capture a sense of

Mr. Seigenthaler is founder of the First Amendment Center at Vanderbilt

University.

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the public attitudes about Less than half of them re- •49% would support a First Amendment rights. sponded that freedom of flag-burning amendment; However, activists who are speech was protected; only •38% would ban from involved in the daily battle 21% of them said that reli- school libraries novels that to keep these rights secure gious liberty was one of the include descriptions of ex- will have some difficulty freedoms; only 11% identi- plicit sex acts. reconciling the findings of fied press freedom as a First In light of these re- Professor Ken Dautrich of Amendment right; only one sponses, it is likely that the Roper Center for Survey of ten identified rights of as- those who believe in and Research and Analysis at sembly and petition as part work for protection of First the University of Connecti- of the amendment. Amendment rights would cut with the actual detailed As the alcoholic sees the take more seriously what answers of respondents. brandy glass half-empty, the Demac has to say about Professor Dautrich writes prohibitionist sees it half-full. press freedom and apply it that “… on the whole the There are many other to all First Amendment First Amendment is alive polling responses that will rights: “In the last half of and well—at least from the concern those who support the 1990’s,” she concludes, perspective of the American the amendment. Here is a “freedom of the press re- viii public.” He relies on the fact selective sampling: mains alive but can hardly that 93% of the respondents •47% of those surveyed be said to be thriving.” She assert that they would ratify disagree with the idea that praises the courage of judi- the amendment (which was musicians should be al- cial officers whose orders in read to them) if that were a lowed to sing songs with the face of public opposi- current consideration. He words that others find of- tion have kept the amend- also is persuaded by majori- fensive; ment alive. ties of respondents, some of •29% think newspapers The Freedom Forum has them large, which expressed should not be allowed to been committed, over a support for the several free- criticize political candidates; long period, to monitoring doms when specific ques- •52% are against student and reporting on govern- tions were put to them. newspapers reporting on mental and public attitudes The scholars, lawyers, controversy without ap- on First Amendment rights. journalists and others who proval of school officials; This ambitious project is in wage war routinely against •44% are against the tele- furtherance of that commit- encroaching government ac- vising of courtroom trials; ment. Donna Demac de- tions on many fronts are •75% would not allow serves great thanks for the likely to see it another way. people to utter words that talent, integrity and enter- They will be concerned to might be offensive to racial prise she brought to the en- read that only 2% of the gen- groups; terprise. Paul McMasters, eral public knew all five of the •53% have reservations The Freedom Forum’s cre- freedoms listed in the amend- about allowing art to be ative First Amendment om- ment. It seems fair to ask shown in a public place if its budsman who oversaw and whether those who said content offends others; tracked the progress of State they would ratify the •57% believe that public of the First Amendment over amendment today had any school teachers should be many months, is to be con- real idea what they would allowed to lead school gratulated for his substan-

be supporting. prayer; tive role. And, as stated

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above, the Roper Center’s wide distribution, not only in the next century will de- work deserves commenda- among First Amendment ex- pend upon the knowledge, tion in developing and experts but among the public, understanding and commit- ecuting the poll. especially at every level of ment to freedom by an on- Hopefully, State of the the system of education. In coming generation. • First Amendment will get the final analysis, freedom

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Introduction By Paul McMasters

ach day of this speech for ourselves, but for nation’s life, in meet- the most part we are not so In more E ings of school boards, sure about others, especially library boards, city councils, those whose words offend state legislatures, and Con- our taste, threaten our chil- than two gress itself, figures of respect dren, or challenge our con- and renown rise on behalf victions. centuries, of a supportive public and Since it was ratified as a proclaim, “I believe in the part of the Bill of Rights in the lesson First Amendment, but—” 1791, the First Amendment xi Each such announcement has served this democracy of the First precedes a proposal to regu- and its citizens well. Yet in late our speech in order to more than two centuries, Amend- elevate our lives. the lesson of the First And so we have one of Amendment has not taken the more equisite ironies of with most Americans, or ment has a freedom-loving society: their leaders. Too many of Americans truly believe this democracy’s citizens, it not taken they believe in free speech. seems, do not believe it is Still, there is always that strong enough to survive with most “but,” that qualification of words uttered by those who their commitment to the mistake liberty for license. Americans, rights and values embedded Even the First in those 45 words of the Amendment’s most fervid or their First Amendment. In survey advocates experience mis- after survey, Americans givings in times of crisis or leaders. stand steadfast in support of confusion. There is some the general notion of free speech that troubles each of speech. In the particulars, us. Whether it is indecency, however, we waver. When violence, extremism, flag- asked to countenance the burning, New Age religion, very speech the First rap lyrics, coarseness, rac- Amendment was drawn to ism, sexism, whatever—it is protect—the speech of the for some of us beyond pro- radical, the rascal, even the tection. Surely, the First revolting—we become un- Amendment was not meant sure. We do believe in free for this, we say. So, First

Paul McMasters is First Amendment Ombudsman at The Freedom Forum.

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Amendment freedoms en- the idea of free speech is so ing in this report. In her re- dure attacks from the left, internalized that it is essen- search, Demac focused on the right, and the middle of tially unthreatened. events, issues, and trends in the political spectrum. Others warn, however, scholarly thought and legal In the academic world, that the First Amendment jurisprudence. To comple- Catherine MacKinnon, compact between a government those findings, The Stanley Fish, Cass Sunstein, ment and its people is all the Freedom Forum commis- Mari Matsuda, Richard more threatened as the idea sioned a national public Delgado, and a host of other that free expression is a good opinion survey. Those ele- esteemed scholars are ar- unto itself is subsumed into ments of this report were de- ticulating a vision of our fu- the notion that individual signed to form an instru- ture where the First Amend- rights must bow to the needs ment to help the public, the ment remains important, of the larger society. They press, policy-makers, schol- but not all-important, cer- worry that in a chaotic ars and others to properly tainly not more important world we will prefer order evaluate the state of the First than other rights. Political and orthodoxy to the demo- Amendment. leaders regularly put forth cratic din that free speech The Freedom Forum poll proposals that would amend engenders. They warn that found that the First Amend- xii the First Amendment, or the public is distancing itself ment, at least in the ab- would censor the Internet, from the dictum that no one stract, is alive and well. But or decide what television has free speech unless every- it also found that among programs we should watch. one has it. Americans there is a disturb- There is, of course, a Whose worries and warning willingness to restrict popular torrent feeding all ings come nearer to reality? specific kinds of speech, a these streams. Among ordi- Are these dire days for the distressing polarization nary citizens, there is an un- First Amendment? Or has it among respondents on ease about speech that is too ever been thus? What are some issues, and a disap- free. There is a feeling that the prospects for the First pointing level of education society is best served by pro- Amendment as we approach about constitutional rights. tecting First Amendment the 21st century and a new Demac’s research found sub- freedoms only when they millineum? How dear do stantial evidence of con- are put in the service of scholars, political leaders, stant and continuing at- higher social, political, or and the people hold these tempts to limit First religious interests. rights and values? Have two Amendment freedoms in a To their credit, the courts centuries eroded our confi- wide variety of venues. generally attenuate the dence in and support for The findings resulting more intemperate attacks them? Do we so little trust from this effort are in some on the First Amendment our fellow citizens and the ways not surprising. But they and protect it from the strength of democracy itself document in a useful way power of government, the that we are willing to trade a the current battles in the will of the majority, or the precious piece of freedom for continuing struggle as well whim of the moment. In- a precious peace of mind? as the emergence of new deed, some authorities say Those are vital questions battlefields and new weap- that Supreme Court deci- that evoke vital issues. They ons. The occasional indi- sions have pushed us to- are but a few that Freedom vidual or small group chal- ward a more libertarian out- Forum Fellow Donna Demac lenging expression is joined look on free expression, set out to explore during her in contemporary discourse

that we live in a time where year-long research culminat- by much larger, well-fi-

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nanced organizations. vigor and ultimately their fu- the strength of its appeal Where the former tests and ture. To exile some ideas, to and utility, and that society tempers freedom, the latter imprison some images, to will have been the stronger threatens to subject it to an banish some words is anath- for the process of evaluation agenda or cause. There also ema to the thoughtful indi- and acceptance or rejection. are new voices of uncom- vidual and the careful society. That, perhaps, is the en- mon eloquence that advance There are, indeed, some during promise of the First the idea that not all restric- words, images and ideas that Amendment: A democratic tions on speech are bad. are evil, even perverse, but society is not jeopardized by Equally eloquent are those none so much as the idea evil ideas, save one: That who believe that those who that government, the major- the government or the ma- advocate restrictions on some ity, or a politically astute elite jority should dictate what is speech advance a false and can impose its list of restric- and what is not allowed in flawed notion of good social tions on the rest of us. belief, thought, or expres- order. Indeed, they say, to in- To defend First Amend- sion. Those who garner sist that some ideas are for- ment principles, of course, praise for legal and learned bidden, some images are is not to defend pornogra- treatises to the contrary run criminal, that some words are phy, perversity, or perfidy. the risk of dashing the taboo is to rob both society Instead, it is to defend the dream of democracy before xiii and the individual of their tradition that each act of ex- it is fully realized. •

pression will live or die on

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xiv

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Overview

ne of the pillars of people and their outspoken the United States’ defense of these rights. First O remarkable free- This report seeks to con- dom is the First Amend- tribute to this process by re- ment to the Constitution, viewing the state of each of Amendment with its powerful affirma- the five freedoms and not- tion of freedom of speech, ing areas where they have freedoms the press, religion, petition been threatened. It also and assembly. These five highlights attempts by must be won freedoms are part of the es- people all over the country xv sence of American democ- to push back assaults on over and racy. their First Amendment For the most part, threats rights. over again. to First Amendment rights A project such as this and values have been de- must inevitably describe feated, whether through contradictory impulses. The public criticism or action by story of the First Amend- the courts. Yet those threats ment in recent years is a continue to appear. In the matter both of disturbing summer of 1997, Oklahoma challenges to First Amend- City police rounded up cop- ment freedoms and of ies of the Academy Award- strong affirmations of those winning film The Tin Drum freedoms. from video stores and even In the case of free speech, from the homes of people there has been considerable who had rented a copy, act- excitement about new ing in response to a judge’s online media yet also wide- decision that the work was spread concern about the obscene under state law. transmission of “indecent” That local judge’s action un- material. Thus we’ve seen doubtedly will face tough both pandering to these going before a higher court, fears by Congress and the but the point is that First Clinton administration and Amendment freedoms must resounding rejections of be won over and over again. cyberspace censorship by And not only in the courts. the federal judiciary, includ- The strength of the First ing the U.S. Supreme Court. Amendment also depends In the area of commercial

on the support of the speech, we’ve seen a series

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of contradictory Supreme prohibition of government need for more education Court rulings that parallel a recognition of religion in about the First Amendment. wider ambivalence in soci- any form. Or it can mean The American experiment ety about the First Amend- the freedom of people to ex- in self-government depends ment rights of corporations. ercise their religious beliefs foremost on each person’s On the one hand, Ameri- as they see fit. Some groups participating as a citizen — cans believe businesses want to weaken the separa- and not just periodically in should be able to say what tion of church and state (by a voting booth. To nurture they please, yet when it encouraging prayer in pub- well-informed people, comes to harmful products lic schools or channeling schools must help students such as cigarettes, most public funds to religious understand and exercise people endorse government education) in the name of constitutional freedoms, restrictions on advertising strengthening the free-exer- particularly those in the and marketing. cise principle. Some worry First Amendment. Regarding freedom of the that the intrusion of reli- Unfortunately, there are press, the federal govern- gion in public life will erode troubling indications that ment does not try to shut the rights of those who people of different ages down newspapers that pub- practice minority religions have become detached from xvi lish exposés about high- or none at all. civic matters. Young people level officials. This is not to Concerning the rights of are growing up with less say, however, that all is well petition and assembly, U.S. than an impressive under- with press freedom. Journal- citizens do not usually get standing of the core values ists have had to contend arrested for gathering in of American democracy, and with judges who want to re- peaceful public demonstra- problems have been found strict their coverage of mat- tions, nor do they get pros- among the adult popula- ters before the courts, hos- ecuted for attempting to in- tion, too. Yet there are also tile legislators, and growing fluence government policy. positive trends in this area. criticism from the public. The rights to participate in A significant number of lo- There are also threats — the political process and to cal and national organiza- above all, libel suits — from assemble large groups of tions and public libraries are private parties using the people to make a point are promoting First Amend- courts to intimidate. Other for the most part alive and ment educational efforts in threats stem from the quest well in this country. There the schools and among of private information ven- are, however, some trou- adults. They are making use dors to digitize and exercise bling trends. One comes in of the Internet to build exclusive control over the the form of lawsuits aimed online networks — a signifi- distribution of government at intimidating people from cant step in furthering effec- information. There are also engaging in certain kinds of tive advocacy through regular assaults, often sanc- political activity. Another group association in the era tioned by the courts, on the stems from the over-reach- of electronic information. rights of student journalists. ing anti-terrorism legisla- The conclusion of this re- Freedom of religion is tion passed by Congress at port is that we have many another area of ambiguity. the urging of the Clinton reasons to be concerned Part of the problem is that administration. about the vitality of the religious freedom has two Given the high degree of First Amendment as the distinct, sometimes contra- uncertainty about these five United States approaches dictory, meanings in this freedoms, this report puts the 21st century. Policy-

country. It can mean the special emphasis on the makers too frequently act

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on the basis of political ex- continue to promote their The challenge for the pediency rather than prin- versions of truth and moral- future is to help all Ameri- ciple in such matters as flag ity, even when they trample cans—not simply profes- desecration, the rights of the rights of others with dif- sional civil libertarians and immigrants, public funding ferent views. Too much of Supreme Court justices— of the arts and access by the population simply opts recognize that a strong First young people to online ex- out of civic matters and Amendment is indispens- pression. Private groups public involvement entirely. able to our way of life. •

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xviii

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Freedom of Speech

he right to speak The 20th century saw a one’s mind, whether series of battles over the The current T privately or publicly, free-speech rights of labor without fear of government activists and political dissi- decade has restriction or retribution, is dents. The attack on radical- one of the cornerstones of ism intensified with the ad- seen both a American democracy. The vent of World War I. The quest for freedom of speech Espionage Act of 1917 series of was one of the main desires, criminalized disloyal state- along with religious liberty, ments, and then the Smith attempts to 1 that brought European refu- Act of 1940 paved the way gees from tyranny to the for the prosecution of those turn back the New World in the first place. deemed “un-American.” After the Revolutionary That pattern was played out clock on First War, several states provided again with government at- Amendment for freedom of speech in tacks on radicals in the their constitutions, and the 1960s and the subsequent protections principle was incorporated wave of surveillance of dissi- into the First Amendment dents in the COINTELPRO and some to the national Constitu- program. tion. Yet it was not long be- This century, however, resounding fore the sentiment for free also has experienced a 1speech was sacrificed to po- strengthening of free-speech affirmations litical expedience. The Sedi- rights. In the 1925 case of tion Act of 1798 was used by Gitlow v. New York, the U.S. of the free- President John Adams and Supreme Court ruled that speech his Federalist allies to under- freedom of speech applied to mine their Democratic-Re- the states as well as the fed- tradition. publican opponents. The eral government. In Thornhill unpopular law was allowed v. Alabama (1940), the court to expire during the found that peaceful picket- Jefferson administration, ing, even though it was an and free speech was not so action rather than simply explicitly challenged for the spoken words, was protected remainder of the 19th cen- by the First Amendment. tury, with the exception of Later the court even found various state restrictions on that burning an American criticism of slavery. flag was a protected form of

symbolic speech.

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The Supreme Court, of cording to this school of citizens have attempted to course, did permit limits on thought, much of modern have certain books and certain kinds of speech. One culture—from books and other materials they consid- of the most significant of magazines to films, TV pro- ered objectionable removed these was obscenity, where grams, record albums and from libraries or barred from the court found that such even new media—is under- classrooms. speech was outside the mining traditional moral Most would-be book-ban- scope of the First Amend- values, particularly those re- ners act with what they con- ment. In the Miller case, the lating to sexuality and pa- sider to be the highest mo- court set certain standards rental authority. Faced with tives—protecting their to apply in deciding what they see as an on- families and communities from perceived evil and preserving the values and ideals they would have the entire Most would-be book-banners act with what society embrace. Yet by attempting to foster their own they consider to be the highest motives— moral principles, they undermine the rights of oth- 2 protecting their families and communities. ers—both the right of students to read a variety of whether to brand any form slaught of licentious and materials and the right of of expression obscene (as permissive material, social teachers to educate students opposed to merely inde- conservatives have been free of outside interference. cent).1 The court also up- campaigning for various It could be said that most held the right to possess ob- kinds of restrictions on free book-banning is not techni- scene materials for private expression. cally a violation of the First viewing in one’s own home Amendment, given that the

in Stanley v. Georgia.2 practice is most often insti-

○○○○○○○○○○○○○○○ This mixed tradition of Banning books gated by private individuals free-speech restrictions and and groups rather than the tolerance needs to be kept One key target has been the government. Yet when in mind when evaluating range of books made avail- book-banners succeed, most the state of freedom of able to children with gov- often it is public school offi- speech in the 1990s. The ernment funds. Public cials who carry out their current decade has seen schools and public-school li- agenda. Consider these epi- both a series of attempts to braries are supposed to be sodes: turn back the clock on First bastions of the values em- • Penny Culliton, a Amendment protections bodied in the First Amend- teacher in Ipswich, N.H., and some resounding ment. They are meant to be was suspended and then affirmations of the free- places where any and all fired in 1995 after she as- speech tradition. ideas can be explored, where signed her 11th- and 12th- Perhaps the most signifi- facts take precedence over grade students three works cant challenge to free doctrine and dogma. Yet it is of literature in which homo- speech in recent years has in these institutions that sexuality was a principal come about in a movement some of the most significant theme: Maurice by E.M. to reverse what is seen by challenges to free expression Forster, The Education of some as a troubling decline are taking place. For more Harriet Hatfield by May

in American morality. Ac- than a decade, groups of Sarton, and The Drowning of

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Steven Jones by Bette Greene. dered him reinstated. said: “Our Nation is deeply A local newspaper had re- • In spring 1997 Dan committed to safeguarding ported that Culliton was Brooks, an eighth-grade academic freedom, which is working with a gay and les- teacher in Peru, Ill., was di- of transcendent value to all bian support group. This rected by the school princi- of us and not merely to the stirred up much local con- pal to stop teaching John teachers concerned.”4 And troversy and caused the Steinbeck’s Of Mice and Men two years later, in a re- school to ban the titles as after three anonymous com- sounding affirmation of “unsuitable,” whereupon plaints. The ban was lifted freedom of expression, the the books were actually when the school began the court nullified the suspen- taken from the hands of stu- process of adopting a formal sion of high school students dents as they were reading book-selection policy. who mounted an anti-war the novels in class. On Aug. Brooks was told that a final protest by wearing black 23, 1996, the State Public determination would be armbands to school, stating Employee Labor Relations made on whether he could that students “do not shed Board upheld an arbitrator’s use the book once the new their constitutional rights to decision recommending im- policy was in place. freedom of speech or expres- mediate reinstatement. But • Cissy Lacks, a high sion at the schoolhouse the school board would not school teacher in St. Louis gate.”5 However, Supreme 3 allow it and barred Culliton with 25 years of experience, Court decisions since then from the first day of teach- was fired by the suburban have limited the First ers’ meetings while it con- school district for allowing Amendment rights of teach- sidered a legal challenge to her 11th-grade students to ers and students by putting the ruling. Meanwhile, write as they speak in an as- them on the same level as Culliton and the teachers signment for her creative- other values and interests. union (which had backed writing class. Lacks took the In one case, the court up- her and supplied her attor- matter to court; a federal held the suspension of a stu- ney) prepared to go to court to force compliance. Then, suddenly, it was over. Culliton was e-mailed a Freedom of expression is not message stating that the other side had given up the dead in the public schools, but fight and she would be able to teach that fall. neither is it thriving. • Alfred Wilder, a high school teacher in Denver, judge eventually ordered dent for giving a speech was suspended for showing the school district to rein- laced with sexual innuendo a portion of Bernardo state her, and she was and poking fun at the effec- Bertolucci’s film 1900 to his awarded $750,000.3 tiveness of a candidate for senior class on logic and de- Such attacks on the school office. It ruled that bate. Wilder was subse- rights of teachers and stu- the school board’s desire to quently fired, despite a dents have been aided by a regulate a student’s manner hearing officer’s opinion change in the legal climate of speech did not violate the that the film was a legiti- over the past 25 years. In First Amendment rights of mate part of his teaching. the 1960s, the trend was in students.6 In February 1997, the Colo- the opposite direction. A Even when a court up-

rado Court of Appeals or- 1967 Supreme Court ruling holds the teacher’s right to

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teach—as happened in Cissy these parents find demean- THE BOOK-BANNERS’ TARGETS Lack’s case—it does not tell ing. Parents who don’t want ❶ the school to back off. children exposed to stories The American Library Goosebumps Series Decisions about the con- about gay men and lesbians Association’s Office for R. L. Stine tent of student publications have insisted that books Intellectual Freedom monitors ❷ and the selection of school such as Heather Has Two book-banning around the Adventures of Huckleberry Finn library books are similarly at Mommies and It’s Perfectly country. Here is its list of the Mark Twain odds with earlier rulings Normal be dropped from the “Most Challenged Books about the transcendence of class reading list. Parents for 1996”: ❸ I Know Why the Caged Bird academic freedom. A 1982 and citizens groups also Sings case held that school ad- have complained about Maya Angelou ministrators may regulate li- books that deal with New ❹ brary content on any ratio- Age religion or witchcraft. It’s Perfectly Normal nal basis as long as they The threat to the First Robie Harris aren’t trying to suppress Amendment is that a sub- ❺ ideas or produce political or- stantial number of Ameri- The Chocolate War thodoxy.7 In 1988, the dele- cans—often in well-orga- Robert Cormier tion of stories in a student nized groups—are willing to 4 ❻ newspaper about teen preg- put aside diversity and The Catcher in the Rye nancy and parental divorce openness in order to protect J.D.Salinger was deemed acceptable by their own notions of moral- ❼ the Court in Hazelwood v. ity or political correctness. Bridge to Terabithia Kuhlmeier, as long as it was Freedom of expression is Katherine Paterson done for legitimate peda- not dead in the public gogical concerns.8 This deci- schools, but neither is it ❽ sion underlined the dra- thriving. Forever Judy Blume matic slide away from the Judith Krug of the Ameri- court’s earlier decisions and can Library Association ❾ said that the power of notes, “The list of most- My Brother Sam is Dead James Lincoln Collier school officials to oversee banned books is changing. & Christopher Collier educational activities took Earlier in the 1990s, titles precedence over the rights focused almost solely on ho- of students. mosexuality, witchcraft, the At one time it was pos- supernatural and related sible to locate the origins of things. [In contrast with the book-banning impulse this], not one title on the among Christian fundamen- list for 1996 deals with ho- talists who feared books that mosexuality. We’re dealing seemed to contradict the lit- with quality literature, eral language of the Bible. which needs to be defended, But book-banning has be- as it says a great deal about come more complicated what is being taught in the than that. Progressive- schools and about our na- minded parents have at- tional culture in general.”9 tempted to bar Adventures of Huckleberry Finn because the book uses the word “nigger”

and portrays blacks in a way

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○○○○○○○○○○○○○○○ Government funding tion of] decency.” cal productions of two of the arts Although the First widely acclaimed plays with Amendment prevailed in gay themes—Angels in The book-banning move- court, the conservative chal- America and La Cage Aux ment generally operates at lenge to the NEA has had a Folles—brought strong ho- the local level, but a similar profound impact on federal mophobic sentiment to the impulse has been seen in the financing of the arts. The surface in Charlotte, N.C., in controversy over certain endowment’s budget has 1997. County commissioners works of art funded through been reduced substantially, passed a resolution to cut off the National Endowment for from $162 million in fiscal $2.5 million of county the Arts. The dispute began year 1995 to $99.5 million money for the Arts & Science in the late 1980s when Sen. the following year—almost Council. According to the Jesse Helms (R-N.C.) and a 40% cut. Under the threat resolution, money is to be other conservative politi- of possible elimination, the denied projects that “pro- cians raised an uproar about NEA has become noticeably mote, advocate or endorse NEA funding of an exhibit of more cautious about what it behaviors and values that photographs by Robert funds. seek to undermine and devi- Mapplethorpe containing Nevertheless, opponents ate from the value and soci- homoerotic elements and a of the NEA still find reasons etal role of the traditional 5 work by Andres Serrano de- to complain. In spring 1997, American family.” picting a crucifix submerged in the artist’s urine. Helms and other members of Con- Many members of Congress remain gress cited these controversial works, which were willing to try to enact constitutionally hardly typical of NEA-funded art, to get Congress in 1990 questionable laws to strip away fundamental to pass legislation requiring the endowment to take into guarantees of free expression in the arts.

account “general standards

○○○○○○○○○○○○○○○ of decency” in making grant Rep. Peter Hoekstra (R- In the name of the awards. Mich.) complained publicly children The law was challenged about an NEA-funded film by four artists—Karen because it included a brief The conservative campaign Finley, Tim Miller, John lesbian love scene. Many against indecency is not lim- Fleck and Hollie Hughes— voices continue to criticize ited to material receiving and ended up in the Ninth government funding of art- government funding. In the Circuit Court of Appeals, ists, and many members of 1980s the Reagan adminis- which finally heard argu- Congress remain willing to tration formed an unlikely ments in the case in 1995 try to enact constitutionally alliance with some feminist and found it unconstitu- questionable laws to strip groups and launched a cru- tional. David Cole, one of away fundamental guaran- sade against pornography the lawyers for the artists, tees of free expression in the under the auspices of the said the ruling meant that arts. Meese Commission, ap- “from now on, the NEA The movement against pointed by then-U.S. Attor- must concern itself with government funding of the ney General Edwin Meese. art, not politics or [with arts also has appeared at the As an official attempt to es-

government funders’ defini- local level. For example, lo- tablish a cause-and-effect re-

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lationship between porno- stitutional law professors Anderson, executive director graphic media and violence, sent a letter to Sen. Orrin of a conservative group the Meese Commission was Hatch (R-Utah), pointing called Oklahomans for Chil- a failure, but it did encour- out that film producers, li- dren and Family, the city age prosecutions of distribu- brarians, publishers and mu- police department took a tors of pornographic mate- seum directors would be copy of the Academy rial, particularly what is forced to self-censor pro- Award-winning film The Tin known as “kiddie porn.” tected expression, for fear Drum to a judge who said a First Amendment propo- that the material would be portion of the movie was nents generally accept the found to “appear” to depict obscene under state law. The ruling was based on a single scene that appeared to de- As an official attempt to establish a pict oral sex between a boy and a girl. Oklahoma City cause-and-effect relationship between police rounded up copies of the film from video stores pornographic media and violence, and even from the homes of people who had rented cop- 6 the Meese Commission was a failure. ies. The action is being challenged in court. legitimacy of government minors. Daniel Katz, legisla- regulation of child pornog- tive counsel for the Ameri- Attempts to criminalize raphy. Efforts to strengthen can Civil Liberties Union in ‘indecent’ speech online laws in this area are ongo- Washington, D.C., said the The crusade against inde- ing. In 1982 the Supreme law expanded the historical cency has used popular sen- Court flatly denied consti- intent of laws against ex- timent for shielding chil- tutional protection to por- ploitation of children, dren from pornography to trayals of sexual acts by which traditionally focused launch what was probably children under the age of on punishing those who the most serious threat to 16. As a result, the produc- lured children into sexual freedom of expression of ers of erotic films have been activity. In place of this, the the past decade: the at- required to document the law shifted emphasis from tempt to ban “indecent” age of the actors they em- the actual abuse of children material from online com- ploy. to concern about images munications. Congress, concerned that and fantasies. This, he said, Purveyors of “adult” ma- pornographers were creating had “extraordinary” ramifi- terial are among the first to child porn without the ac- cations for artists and film- try out new technologies to tual use of minors, passed makers. On Aug. 12, 1997, distribute their wares. Soon the Child Pornography Pre- San Francisco Federal Judge the indecency crusaders vention Act of 1996, which Samuel Conti ruled in Free turn their attention to these banned computer-generated Speech Coalition v. Reno that new media as well. This pro- depictions of children en- the law does not violate the cess has been played out gaging in sexual conduct. First Amendment. dramatically in the case of The law was quickly at- Another example of ex- online communications. tacked by free-speech advo- cessive zeal in combatting Since the beginning of cates who said it under- supposed child pornography the 1990s, millions of mined First Amendment occurred in Oklahoma. At Americans have purchased

protections. A group of con- the instigation of Bob computers with modems in

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order to gain access to the tion doing much of the legal strictions raise the specter Internet and World Wide work and coordination, that the Government may Web. Although these elec- more than 40 groups imme- effectively drive certain tronic networks are touted diately challenged the CDA ideas or viewpoints from the as revolutionizing educa- in court, seeking to have it marketplace.” tion, culture and commerce, overturned as unconstitu- A year later, in June 1997, they also provide a new way tional. The list of challeng- the Supreme Court issued its for people to look at “dirty” ers included print and judgment of the CDA.10 It pictures. The existence of broadcast journalists, book- found the law’s goal of pro- “indecent” material online sellers, writers, students, tecting children from inde- soon came to the attention online service providers, cent material to be legiti- of members of Congress, and many others. mate and important, yet the some of whom decided that A special panel of judges 7-2 majority stated that the this was a threat to the in the federal District Court “wholly unprecedented” moral fiber of the country. for the Eastern District of breadth of the law threat- Pandering to the panic this Pennsylvania in Philadel- ened to suppress speech new medium had generated, phia responded quickly. In even between parents and Congress in 1996 adopted, June 1996, the three-judge children. On this basis, the as part of the Telecommuni- panel, which had spent a CDA was declared unconsti- 7 cations Act, a broad-brush great deal of court time ac- tutional in an historic en- prohibition against the tually learning about how dorsement of freedom of transmission and display of the Internet and World speech in the online world. online speech and other Wide Web operated, re- material that was somehow soundingly rejected the State online “indecent” or “patently of- CDA on constitutional indecency laws fensive.” grounds. This law would Before the Supreme Court’s Although the Communi- have a disastrous impact on CDA ruling, the concern cations Decency Act suppos- the diversity of online com- over sexually explicit online edly was aimed at protecting munication, the judges said. text and images prompted minors, it was written in The resulting decrease in the legislation in more than a such a way that it number of speakers and per- dozen states. In the first criminalized online trans- missible topics would di- such cases to come down, mission of a substantial minish the worldwide dia- two federal courts ruled si- amount of literary, scientific logue that is the strength multaneously in June 1997 and medical material, as and signal achievement of that a New York law resem- well as non-obscene expres- the online medium. “At the bling the CDA and a Geor- sion. Thus the stage was set heart of the First Amend- gia law that criminalized for a landmark court test of ment,” the opinion stated, online anonymous speech whether online speech “lies the principle that each were unconstitutional and should be given the highest person should decide for blocked state officials from level of First Amendment him or herself the ideas and enforcing them. protection, which is ac- beliefs deserving of expres- In the Georgia decision,11 corded print media, or the sion, consideration and ad- Judge Marvin Shoob in At- lesser protection of the herence. Our political sys- lanta agreed with the ACLU, broadcast media. tem and cultural life rest Electronic Frontiers Georgia With the ACLU and the upon this ideal. These re- and other plaintiffs that the American Library Associa- statute violated free-speech

and free-association rights

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EXAMPLES OF STATE ONLINE INDECENCY LAWS

BILL SPONSOR DESCRIPTION California Assembly Bill 295 Rep. Baldwin Expands obscenity and child pornography enacted 9/96 statutes to prohibit transmission of images by computer and was unconstitutionally Connecticut House Bill 6883 House Committee Creates criminal liability for sending an vague and overly broad be- enacted 6/95 on Judiciary online message "with intent to harass, cause it barred online users annoy or alarm another person" from using pseudonyms or communicating anony- Florida Senate Bill 156 Sen. Burt Amends existing child pornography law to enacted 5/96 hold owners or operators of computer mously over the Internet. online services explicitly liable for permitting Shoob said that such a law subscribers to violate the law afforded prosecutors and police officers substantial room Georgia House Bill 1630 Rep. Parsons Criminalizes the use of pseudonyms on the for selective prosecution of enacted 4/96 Net, and prohibits unauthorized links to Web sites with trade names or logos people who expressed minority viewpoints. Without House Bill 76 Rep. Wall Prohibits online transmission of fighting anonymity, victims of do- enacted 3/95 words, obscene or vulgar speech to minors, mestic violence, persons in and information related to terrorist acts and certain dangerous weapons Alcoholics Anonymous, people with AIDS and many Illinois Senate Bill 747 Sen. Dudycz Prohibits sexual solicitation of a minor by others would fear using the enacted 7/95 computer Internet to seek information 8 and support, the court Kansas House Bill 2223 Expands child pornography statute to stated. enacted 5/95 include computer-generated images In the New York case,12 Judge Loretta Preska of Maryland House Bill 305 Rep. Murphy Amends child pornography law to include Senate Bill 133 online communication Manhattan’s federal district enacted 5/96 court struck down a 1996 law restricting material that Montana House Bill 0161 Expands child pornography statute to might be “harmful to mi- enacted 3/95 prohibit transmission by computer and possession of computer-generated child nors,” ruling that one state pornographic images could not pass laws applying to the entire Internet. New York Senate Bill 210E Sen. Sears Criminalizes the transmission of "indecent" “Only Congress can legislate passed 7/96 Rep. DeStito material to minors in this area,” Preska wrote. She further warned of the North House Bill 207 Rep. Bowie Expands existing law to prohibit sexual Carolina enacted 6/96 solicitation of a minor by computer extreme danger that state regulation would pose to Oklahoma House Bill 1048 Rep. Perry Prohibits online transmission of material the Internet, rejecting the enacted 4/95 deemed "harmful to minors" state’s argument that the statute would be effective in House Concurrent Rep. Paulk Directs all state agencies, including preventing so-called inde- Resolution 1097 educational institutions, to remove all illegal passed 5/96 obscene material from their computer cency from reaching mi- systems nors. The state already could protect children through Virginia House Bill 7 Rep. Marshall Makes it illegal for any government vigorous enforcement of ex- enacted 3/96 employee, including professors at state isting criminal laws, the universities, to use state-owned computer systems to access sexually explicit material judge said. The state laws against Senate Bill 1067 Sen. Calhoun Expands existing statute to criminalize online indecency also have enacted 5/95 electronic transmissions of child been challenged as a threat pornography

to academic freedom. Vir-

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ginia passed a law that should make use of software barred state employees from programs that automatically ORIGINAL TELEVISION RATINGS viewing “sexually explicit” block access to objectionable The TV industry began using these symbols in January of 1997. communications online. sites. The same general ap- TV Suitable for all children The law made it illegal to proach has been adopted use the state’s “information with regard to television. Y infrastructure” to access or Some of those concerned download materials with about sexual and violent TV Designed for children age 7 and above “sexually explicit content.” content on TV have settled In addition, the law prohib- on a scheme called a v- Y7 ited storage of sexually ori- chip—a computer chip in- ented communication on stalled in television sets that TV Suitable for the entire audience; parents state-owned computers, and would make possible a rat- may let children watch this unattended barred employees from us- ings system formulated by G ing e-mail, chat rooms and the private sector yet man- listservs, if the exchange in- dated by the federal govern- TV Parental guidance suggested, as program volved sexually explicit ment—so parents could pro- may contain material that some parents words or images. gram television sets to keep PG may find unsuitable for younger children In a complaint filed on children from viewing cer- 9 behalf of six professors from tain shows. TV Parents strongly cautioned as “program may different schools,13 the A leading advocate of the contain infrequent coarse language, limited violence, ACLU said the law unconsti- device was President 14 some suggestive sexual dialogue and situations” tutionally curbed the free- Clinton, who stressed the speech rights of state uni- idea in his 1996 State of the TV Designed for mature audiences and versity professors and others Union address. Less than a may be unsuitable for children under 17 and could even be the basis month later, Congress MA for punishing a professor for heeded the President’s call accessing a Web site with and included a provision poetry by Algernon Charles titled “Parental Choice in Swinburne. One professor, Television Programming” EXPANDED TELEVISION RATINGS in fact, had been compelled (known as the v-chip law) Five of the six networks began using these symbols in October of 1997. by a school to remove from when it passed the 1996 NBC refused. his Web site sexually explicit Telecommunications Act. Sexual Depictions images he had posted as ex- Interestingly, the bill omit- amples as part of an analysis ted mention of the content S of censorship. to be rated and who was to Violence do the rating. The idea was Regulating television that public pressure would V programming prompt broadcasters to rate Coarse Language One of the key arguments their programs voluntarily. made by some opponents of If broadcasters did not take L the Communications De- that step within a year of Suggestive Dialogue cency Act was that it is the the passage of the law, the responsibility of parents to Federal Communications D monitor material their chil- Commission was empow- Fantasy Violence dren view online. If they ered to establish ratings (Used only with TV-Y7 rating) can’t do so directly, the ar- guidelines based on recom- FV

gument goes, then parents mendations of a citizens’ ad-

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visory commission. Some members of Con- dedicated to sexually ex- Under this pressure, the gress, including Rep. plicit programming. It man- television industry intro- Markey, Sens. John McCain dates that such channels duced its own rating system (R-Ariz.) and Ernest Hollings must be fully scrambled, in early 1997. The system (D-S.C.), have proposed even if a customer has not consisted of six broad cat- more targeted restrictions requested it. Until a cable egories. on television content. At a operator complies, it must For many months, these press conference held the cease transmitting such age-based ratings were de- day the new symbols were channels during hours when nounced as meaningless by introduced, McCain said a a significant number of chil- officials and leaders of a num- letter signed by nine sena- dren are likely to be watch- ber of parents’ organizations. tors promising no other rating, as determined by the Rep. Edward Markey (D- ings legislation for several Federal Communications Mass.), a co-author of the un- years would not apply to Commission. The provision, derlying legislation, argued NBC or other programmers added to the act as a last- that the suggested categories who did not agree to use minute amendment by Sen. would not give parents usable them.15 Such pressure by Diane Feinstein (D-Calif.), information. In July 1997 tele- lawmakers shows that al- was prompted by the fact 10 vision programmers, with though the v-chip law does that in some instances adult NBC refusing to participate, not mandate government programming is only partly succumbed to pressure to add regulation of program con- scrambled, so that, for in- more symbols to the ratings tent, it does raise significant stance, the audio portion is scheme. Beginning in Octo- First Amendment questions. transmitted intact—a phe- ber, cable and broadcast net- As this fear by NBC that nomenon known as “signal works began displaying the Congress will impose fur- bleed.” new symbols at the start of ther content regulation sug- This requirement was programs. (See chart on page 9.) gests, it remains to be seen challenged in court by Play- boy Entertainment Group,16 which operates two adult cable channels. The district Although the v-chip law does not mandate court in Delaware initially issued a temporary restrain- government regulation of program content, it ing order preventing the FCC from enforcing this part of the law, but later re- does raise significant First Amendment questions. fused to grant a preliminary injunction because it de- As explained by Nat whether the v-chip would cided Playboy had not Hentoff in The Washington pass constitutional scrutiny shown it was likely to suc- Post, NBC did not agree to by the courts. ceed on the merits. The Su- add the new ratings because preme Court summarily af- network officials believed Scrambling ‘adult’ firmed this preliminary that “as a matter of prin- programming on TV ruling, and the matter was ciple, there is no place for Section 505 of the Telecom- returned to the district court government involvement in munications Act of 1996 im- for proceedings on a perma- what people watch on tele- poses a scrambling require- nent injunction. The FCC vision.”14 ment on video networks implemented Section 505 in

May 1997.

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In the wake of the Su- years. It was only in a series the deregulatory thrust of preme Court’s decision in of mid-1970s rulings that the Reagan Administration, Reno v. ACLU, which invali- the court extended free- upheld the right of authori- dated the definition of “in- speech protections to com- ties in Puerto Rico to ban decency” in the Communi- mercial advertising. The advertising of legal casino cations Decency Act, most decisive of these was gambling. In the Posadas20 Playboy decided to seek Virginia State Board of Phar- case, the majority argued summary judgment from macy v. Virginia Citizens Con- that government could bar the district court on the sumer Council,18 in which advertising of any activity vagueness of Section 505’s the court struck down a that could itself theoreti- indecency standard, accord- state law barring pharma- cally be barred. The Posadas ing to Robert Corn-Revere, cists from advertising the case was viewed as a disaster Playboy’s attorney in the prices of prescription drugs. by proponents of commer-

case. cial speech.

○○○○○○○○○○○○○○○ Commercial speech The court’s new inclination to reject For the first century and a 11 half of U.S. history, the restrictions on commercial speech posed a question of free-speech rights for commercial enti- serious challenge to the Clinton administration. ties was not much of an issue. Government had no in- In succeeding years the In recent years, however, terest in regulating the Supreme Court—maintain- the Supreme Court has been content of claims made by ing the idea that commer- more favorable to commer- companies, and as a result cial speech was entitled to cial-speech rights. A Cincin- the world of advertising was protection but not to the nati ordinance that selec- a free-for-all. Purveyors of same extent as political and tively banned newsracks patent medicines, for ex- other forms of speech—tried containing marketing pub- ample, were able to promise to balance the rights of ad- lications was struck down in “miracle cures” without vertisers with legitimate 1993.21 Three years later, in worrying that they would be government objectives. In 44 Liquormart Inc. v. Rhode Is- challenged to back up their Central Hudson Gas & Electric land,22 the court repudiated claims. Corp. v. Public Service Com- the Posadas doctrine and The issue of commercial mission,19 for example, the struck down a state law that speech did not come before court affirmed the right of prohibited advertising of li- the Supreme Court until government to regulate quor prices as a way of dis- 1942. In Valentine v. commercial speech that was couraging alcohol consump- Christensen,17 the court ruled misleading. That 1980 rul- tion. that New York City officials ing also established a test The court’s new inclina- could regulate the distribu- for determining when regu- tion to reject restrictions on tion of advertising handbills lation of commercial speech commercial speech23 when (under sanitary laws) be- was permitted, but the Su- alternative means exist for cause advertising was not preme Court itself has not reaching government objec- entitled to First Amendment been entirely consistent in tives posed a serious chal- protection. That principle applying the test. In 1986 lenge to the Clinton

remained in place for 30 the court, moving against administration’s plan for re-

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stricting tobacco advertis- tions on commercial speech. In many of the commer- ing. That issue may have be- There have been signs— cial-speech rulings of the come moot as a result of the such as the court’s refusal in past decade, the court has settlement between the to- April 1997 to hear two Balti- been seriously split—often bacco industry and a num- more cases involving bans into more than two groups. ber of states’ attorneys gen- on alcohol and tobacco bill- This is a reflection of the dif- eral. In that settlement, boards—that the 44 ficulty of resolving the free- which remains tentative be- Liquormart decision, in speech claims of advertisers cause of demands for which commercial speech and owners of the electronic changes posed by the was accorded significant media with the efforts of government to control the harmful side effects of certain consumer products and Society should punish those who ensure wide access to the media by advertisers. Since misuse dangerous information— neither form of absolutism— denying all First Amend- not the source of the information. ment claims of advertisers 12 and the media, or totally Clinton administration, the First Amendment protec- deregulating commercial industry agreed to eliminate tion, may be applied nar- speech—seems to be viable, billboards and outdoor rowly. Also troubling to pro- the Supreme Court is likely signs, to remove cartoon fig- ponents of commercial to continue its high degree ures from ads, and to accept speech was the court’s rul- of vacillation in this area. other restrictions on adver- ing in June 1997 (in

tising and marketing. Glickman v. Wileman Bros. &

○○○○○○○○○○○○○○○ 24 In the meantime, more Elliott Inc. ) rejecting an in- Other recent free- than 50 radio and TV sta- dustry challenge to a gov- speech controversies tions have carried ads for ernment program that distilled spirits since forced California fruit grow- Seagram’s aired a commer- ers to pay for a generic ad- Manuals for murder cial in June 1996. That re- vertising campaign. and mayhem kindled the controversy that The Supreme Court has Another kind of expression prompted the liquor indus- looked favorably upon an- that some people consider try voluntarily to end televi- other form of compelled beyond the pale is published sion advertising of hard li- speech by a commercial en- material that seems to be quor 48 years ago. In July tity: the must-carry rule, un- meant to teach people how 1997, the Federal Commu- der which cable television to commit violent criminal nications Commission de- systems have been required acts. This is the issue in the cided not to take action in to carry the signals of local controversy over the publi- this matter after extensive over-the-air broadcast sta- cations of a company called internal debate, while Con- tions. In March 1997 the Paladin Press, publisher of gress was still considering court rejected the free- such unconventional titles what steps to take. speech claims of the cable as Be Your Own Undertaker: Commercial-speech ad- operators and upheld the ob- How to Dispose of a Dead vocates are not sure how the jective of Congress to main- Body and The Ancient Art of Supreme Court would rule tain a competitive communi- Strangulation.

on this and other restric- cations marketplace.

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In 1995 Paladin Press was 130-page manual a “blue- In August of 1996, U.S. sued by relatives of the vic- print for murder.” Paladin, District Judge Alexander tims in a triple homicide in they argue, should be held Williams Jr. in Greenbelt, Maryland. They claimed responsible for promoting Md., ruled that the free- that the killer was “aided Hit Man as an instruction speech guarantee of the First and abetted” by one of the manual for commission of a Amendment “bars liability publisher’s titles—Hit Man: crime. At first glance, this for dissemination” of mate- A Technical Manual for Inde- claim may not seem to carry rial such as that in the Pala- pendent Contractors. That much force, given that the din book. A three-judge volume offers advice such as First Amendment has been panel in Richmond, Va., re- the following: found to protect such publi- versed Judge Williams’ deci- When using a small caliber cations. But some First sion on Nov. 10, 1997. weapon like the .22, it is Amendment scholars have best to shoot from a dis- argued that Hit Man is not Street art tance of three to six feet. the type of material the First The First Amendment pro- You will not want to be at Amendment was intended tects not only political point blank range to avoid to protect. speech, but also a wide vari- having the victim’s blood Though Paladin pub- ety of other forms of cul- splatter you or your cloth- lishes “fringe” materials, tural and artistic expression. 13 ing. At least three shots mainstream publishers and Nevertheless, the recent past should be fired to insure First Amendment organiza- has seen numerous clashes quick and sure death. Aim tions have joined in its de- between government offi- for the head—preferably fense. These organizations cials and artists. Sometimes the eye sockets if you are a maintain that establishing the tension concerns the lo- sharpshooter. liability for publishing ex- cation where art is dis- plicit details of crimes could played. James Perry, the convicted have a devastating effect on In New York City, a contract killer in the case, “mainstream” literary policy aimed at cleaning up closely followed the instruc- works. They argue that in- the streets enveloped street tions outlined in Hit Man formation, in and of itself, is artists who did not have a when planning and carrying not dangerous. Society vendor’s license (and, in re- out the murders. Perry was should punish those who ality, would not have been hired by former Motown misuse dangerous informa- able to get one if they had Records executive Lawrence tion—not the source of the tried). The policy, part of Horn to murder Horn’s ex- information. Punishing the Giuliani administra- wife, Mildred, his paralyzed Paladin in this case could tion’s campaign against and mentally retarded son, lead courts down a slippery what are said to be “quality Trevor, and Trevor’s nurse, slope of speech-restricting of life” offenses, resulted in Janice Saunders. Horn lawsuits. Entire genres of lit- the arrest of more than 400 planned the murders in or- erature could be subject to artists between 1993 and der to collect a $2 million legal attack based on an ad- 1996 for displaying or sell- medical malpractice settle- verse precedent. As the law- ing original paintings, pho- ment held in trust for yers for Paladin point out in tographs and sculptures on Trevor. Perry was sentenced their briefs, many textual the sidewalk. to death and Horn received similarities exist between Hit Robert Lederman, the a life sentence. Man and other “main- president of a group called The lawyers for the vic- stream” publications, such A.R.T.I.S.T (Artists’ Response

tims’ families call the $10, as a Tom Clancy novel. To Illegal State Tactics), said

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city officials confiscated and In June 1997 the Supreme protection.27 Nonetheless, in- destroyed thousands of Court refused to hear the stitutions such as universities works in the course of the city’s appeal, thus allowing have sought to regulate offen- crackdown on street sales. the earlier appellate decision sive speech. According to In 1994 Lederman’s group confirming the First Amend- Reginald Wilson, senior filed suit in federal court ment rights of street artists scholar with the American challenging the city’s licens- to stand. “The important Council on Education, 147 ing requirements on First question now is what effect public and private colleges Amendment grounds.25 The the New York decision will have implemented rules regu- following year, U.S. District have in other jurisdictions lating student and faculty Judge Miriam Goldman across the country,” says speech. Cedarbaum issued one of Amy Schwartzman, execu- This trend is fueled by the more controversial First tive director of Volunteer the fact that racial tensions Amendment decisions in re- Lawyers for the Arts in New in higher education have in- cent federal court history. York City. creased with the growing She refused to grant the art- presence of minorities on ists a restraining order and Hate speech campus. White students re- ruled that art does not have One of the thorniest First sentful of affirmative-action 14 “core” First Amendment Amendment issues of recent policies have distributed rac- protection.26 years has been the matter of ist materials and in some in- The artists then appealed “hate speech.” What makes stances have physically as- to the Second Circuit Court this matter so difficult is saulted minority students. of Appeals, where the ruling that it involves a conflict be- Along with these crude was overturned in a decision tween free speech and the forms of prejudice have that declared that “visual art protection of the rights of come more “respectable” va- is as wide-ranging in its de- women and minorities. To rieties of racism. All have piction of ideas, concepts what extent is there a con- helped justify attempts to punish “hate speech,” such as speech codes at colleges and universities. One of the thorniest First Amendment Proponents of hate- speech regulation say issues of recent years has been the speech codes are consistent with the values of the First matter of “hate speech.” Amendment. They argue that in order to promote and emotions as any book, stitutional right to say open dialogue—an undis- treatise, pamphlet or other things that are demeaning puted First Amendment writing, and is similarly en- and insulting to certain cat- value—racist or sexist titled to First Amendment egories of people? speech needs to be regulated protection.” The Supreme Court has to ensure that it does not The Giuliani administra- tended to come down on the chase people from the mar- tion sought review by the side of unfettered free speech. ketplace of ideas. As critical Supreme Court with a brief It has ruled, for instance, that race theorist Mari Matsuda arguing that artists’ consti- a display of racist sentiments, states, “Tolerance of hate tutional interest was mini- such as the act of burning a speech is not tolerance mal in comparison with lit- cross on a black family’s lawn, borne by the community at

erature and political speech. is worthy of First Amendment large. Rather it is a psychic

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tax imposed on those least murdered. Pro-choice forces rights. Legislators and the able to pay.” Scholars like regard such assaults as ter- courts, however, have had Matsuda contend that the rorism. the difficult task of sorting silencing effects of hate The federal government out these conflicting sets of speech result in a net loss has taken steps to ensure rights. In Schenck v. Pro- for the First Amendment. that abortion providers can choice Network of Western Opponents of speech operate without interfer- New York, the Supreme codes point to the nature ence and harassment. In Court seems to have struck and purposes of colleges for 1994 the Supreme Court a reasonable, if uneasy, bal- their arguments. They ruled that abortion clinics ance between the First maintain that no social or- could sue violent anti-abor- Amendment rights of pro- ganization is better suited to fight bigotry than the university. Tolerance can be The Supreme Court seems to have struck encouraged in courses, and perhaps most important, a reasonable, if uneasy, balance between through the way learning institutions operate as a the First Amendment rights of protesters community. and the right of women to obtain abortions. 15 Free speech and protests tion groups under the fed- testers and the right of near abortion clinics eral anti-racketeering law. women to obtain abortions The abortion controversy is That same year, Congress free from harassment and another instance in which passed the Freedom of Ac- intimidation. The decision free speech has ended up in cess to Clinic Entrances Act, leaves demonstrators free to conflict with another which prohibits the use of picket, chant, pray and carry right—the freedom of force, intimidation or signs in full view of people women to decide when to physical interference with entering and leaving the terminate a pregnancy. those seeking to receive or clinics, as long as women Those opposed to abortion provide abortions or repro- seeking abortions are not say their First Amendment ductive health services. blocked from entering clin- rights are violated when The Supreme Court also ics. they are restricted in their has upheld certain regula- The court’s latest decision efforts to protest or speak tions on peaceful protests did not make new law. In- out against what they con- outside clinics. It has en- stead, it reiterated a series of sider to be murder. Passions dorsed the use of a 15-foot well-established constitu- over the issue run high. “fixed buffer” zone between tional principles: Since abortion was legal- protesters and the clinics •People have a right to ized in the 1973 Roe v. Wade but rejected a “floating express their views on the decision,28 more than 2,000 buffer zone” that prohibited public streets. However, the acts of violence against demonstrating within 15 right to demonstrate in sup- abortion clinics have been feet of any person or vehicle port of a cause does not in- documented. These have in- going to or leaving such fa- clude the right to break the cluded everything from the cilities.30 law or to harass others seek- use of chains to block access Anti-abortion groups ing to exercise their rights. to clinic entrances to bomb- have complained that these •Demonstrators who en- ings and arson. A number of laws and regulations im- gage in repeated acts of ha-

abortion doctors have been pinge on their free-speech rassment, intimidation and

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trespass may be required to both sides assume constitu- group of civil liberties and demonstrate outside a rea- tional dimensions. homosexual organizations sonable buffer zone. When a school removes in a fight to have the law •Any restrictions on the lesbian and gay material overturned, and, at the right to demonstrate must from its curriculum, those same time, rallied some reli- be narrowly drawn and re- who favor its inclusion ar- gious and secular groups in strict no more speech than gue that rights of free ex- favor of proscribing homo- necessary. pression have been violated. sexual rights. The law even- If the material is not re- tually was reviewed by the Homosexuals and First moved, those upset about Supreme Court, which Amendment freedoms its inclusion may say their found it unconstitutional, One of the groups in Ameri- First Amendment rights stating: can society most targeted for were infringed by mandated We must conclude that discriminatory treatment in subject matter and that the Amendment 2 classifies recent years has been the school has violated the homosexuals not to further homosexual community. family’s religious beliefs. a proper legislative end, Many social conservatives In 1997, a federal court of but to make them unequal see gay life as an unaccept- appeals struck down an Ala- to everyone else. This 16 able threat to their ideas of bama law banning funding Colorado cannot do. A morality and propriety. for gay and lesbian student State cannot so deem a Most complaints about dis- organizations at public uni- class of persons a stranger crimination against homo- versities. The law, passed in to its laws. sexuals that concern the 1992, denied use of public workplace, denial of hous- facilities and public funding In 1992 then-presidential ing and parental-custody to organizations that “fos- candidate Bill Clinton made disputes involve the 14th ter” or “promote” activities a campaign promise to lift Amendment or the 1964 made illegal by Alabama’s the ban on homosexuals in Civil Rights Act. However, in sodomy and sexual miscon- the military. Once elected, many places, lesbians and duct laws. The court said however, Clinton backed gay men are often prevented that the law reflected “na- away from his promise of an from exercising their First ked viewpoint discrimina- outright lifting of the ban. Amendment rights of free tion” and was “an open ef- Congress passed new legisla- speech and association in a fort by the state legislature tion regarding the treatment variety of institutions and to limit the sexuality discus- of homosexuals that reiter- venues. sion in institutions of ated the military’s ban. A In education, lesbians higher learning to only one Department of Defense di- and gay men are vulnerable viewpoint: that of hetero- rective implementing the to lawsuits by parents who sexual people.” law prohibits the govern- are concerned about homo- In recent years, referen- ment from asking service sexual teachers, coaches and dums have been placed on members about their sexual guidance counselors. Some the ballot in different states orientation but provides for parents have become unin efforts to repeal laws, subsequent discharge of happy when their children regulations and policies anyone found out to be gay. are exposed to information protecting homosexuals In the face of fierce opin the classroom about gay from discrimination. In position from military and and lesbian lives.31 Should 1992 voters in Colorado en- political leaders, the these disputes wind up in acted such a law—Proposi- Clinton administration de-

court, the arguments on tion 2. This galvanized a veloped the “don’t ask,

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don’t tell” policy. Imple- of both the First and Fifth subsequently found Loomis mented by executive order, amendments. The govern- guilty of engaging in unbe- the policy stopped short of ment appealed, and a recon- coming conduct and he was lifting the ban on homo- stituted appellate court discharged, after 20 years of sexuals, but was supposed asked Judge Nickerson to re- honorable service during to make it more difficult for view the policy to deter- which his homosexuality the military to investigate mine if different rules of be- was never an issue. the sexual orientation of havior could be applied to While the utterance of service members. gay and non-gay services three simple words—“I am After the Navy put the members. In July of 1997, gay”—may be grounds for new policy into effect in Judge Nickerson struck discharge, courts have given March 1994, Lt. Paul G. down the entire law as un- First Amendment protec- Thomasson tested the law constitutional.32 tion to other expressions of by sending letters to four There have been other le- a sexual nature in the mili- admirals for whom he gal challenges to the “don’t tary context. A law banning worked stating: “I am gay.” ask, don’t tell” policy. It has the sale or rental of sexy The Navy subsequently con- been denounced by more magazines and videos on vened a board of inquiry. than one federal court but military bases was struck Thomasson refused to has generally been upheld down, even though govern- 17 present evidence to disprove at the appellate level. The ment officials argued that the statement and was sub- U.S. Supreme Court has de- the law promoted “core sequently discharged. He clined challenges to the military values” and im- challenged that action, but ban, most recently on Octo- proved the military’s image the Supreme Court refused ber 5, 1997, when it refused in the public’s eye. Para- to hear his case.31 to revive a lawsuit by Rich- doxically, the same argu- In March of 1994, ard Richenberg Jr., formerly ments unsuccessfully used LAMBDA and the ACLU a captain in the Air Force, to justify a ban on sexual filed the first constitutional who received an honorable magazines and videos are challenge to both the con- discharge in 1995 after he relied on to keep homo- duct and speech sections of had disclosed his homosexuals out of military ser- the law on behalf of six les- sexuality to his command- vice. The “don’t ask, don’t bian and gay service mem- ing officer.33 tell” policy allows homo- bers in the U.S. District According to The Wash- sexuals to stay in the service Court for the Eastern Dis- ington Post, after several as long as they choose not trict of New York. Over the years, the military’s policy to exercise a basic First next three years, the case was causing more expul- Amendment right—the moved ahead haltingly: Fed- sions and intrusive investi- right to say who they are. eral District Judge Eugene gations of those suspected

Nickerson granted the plain- of homosexual behavior.34

○○○○○○○○○○○○○○○ tiffs’ request for a prelimi- One particularly disturbing Conclusion nary injunction; this ruling incident occurred when, af- was upheld by a three-judge ter arson had burned down It is difficult to summarize panel of the U.S. Court of Army officer Steve Loomis’s the condition of free speech Appeals. After a four-day home, a marshal investigat- in the United States. In trial, Judge Nickerson im- ing the ruins discovered a many ways, the recent past posed a final injunction in video of men having sex has been troubling. For March of 1995, striking and reported it to Army offi- many people, belief in the

down the ban as a violation cials. A board of inquiry First Amendment has been

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superseded by a desire to government officials have lar and political pressures regulate morality, to protect been willing to embrace cen- and affirm First Amendment children, to fight racism, to sorship—the most depress- principles. The appellate enforce heterosexual norms ing example being the effort court rejection of “decency” or to reach any number of by Congress to criminalize standards for NEA grants, other goals. Well-organized “indecency” on the the rulings in opposition to groups have pressured gov- Internet. the anti-gay “don’t ask, ernment to ban books or At the same time, it is don’t tell” policy, and most otherwise suppress the ex- difficult not to be exhila- of all, the resounding rejec- pression of those whose rated by the willingness of tion of the Communica- speech is considered unde- the judiciary to resist popu- tions Decency Act provide sirable. In numerous cases, hope that free speech will survive. •

1 Miller v. California, 413 U.S. 15 13The universities involved included: 25Lederman et al v. City of New York, (1973). Virginia Commonwealth, George 95-9089. 2 Stanley v. Georgia, 394 U.S. 557 Mason, Blue Ridge Community 26Bery v. City of New York, 97 F. 3rd (1969). College, Old Dominion and the 689, 2d Cir. 1996; cert. denied, 1997 3 These four examples were reported College of William and Mary. WestLaw 10692, June 2, 1997. in Censorship News, a newsletter of 14“NBC’s Lonely Defense of the First 27R.A.V. v. St. Paul, 112 S. Ct. 2538 the National Coalition Against Cen- Amendment,” Nat Hentoff, The (1992). sorship. Washington Post Op-Ed, July 16, 28Roe v. Wade, 410 U.S. 113 (1973). 4 Keyishian v. Board of Regents, 385 1997. 29Schenck v. Pro-choice Network of U.S. 589 (1967). 15“TV Ratings Agreement Reached,” Western New York, Supreme Court, 5 Tinker v. Des Moines Independent Paul Farhi, The Washington Post, July docket no. 95-1065, February 19 Community School District, 393 10, 1997. 1997. U.S. 503 (1969). 16Playboy Entertainment Group, Inc., 30Robson, Ruthann, Gay Men, Lesbi- 6 Bethel School District v. Fraser, 478 v. United States, 117 S.Ct. 1309, 137 ans and the Law, Chelsea House, U.S. 675 (1986). L.Ed.2d 473 (1997) 1994, p. 51. 7 Board of Education v. Pico, 457 U.S. 17316 U.S. 52, (1942) 31Paul G. Thomasson v. William T. 853, 871 (1982). 18475 U.S. 748 (1976) Perry, Secretary of Defense, 895 F. 8 Hazelwood v. Kuhlmeier, 108 S.Ct. 19447 U.S. 557 (1980) Supp 820 (E.D. Va. 1995); aff’d 80 F 562 (1988). 20Posadas de Puerto Rico Associates v. 3rd 915 (4th Cir. 1996), cert. denied 9 Judith Krug, Office of Intellectual Tourism Co. of Puerto Rico, 478 117 S. Ct. 358, 1996. Freedom, American Library Associa- U.S. 328 (1986) 32Able v. United States, 968 F. Supp. tion, Interview, July 30, 1997. 21City of Cincinatti v. Discovery 850 (E.D.N.Y. June 1997). 10Reno et al v. American Civil Liber- Network Inc., 507 U.S. 410 (1993). 33Richenberg v. Cohen, 96-1648. ties Union, docket no. 96-511, Su- 22116 S. Ct. 1495 (1996) 34“Gay Officer’s Removal Fuels preme Court, June 26, 1997. 23Kaplar, Richard, “Alcohol Advertis- Charges of Bias,” Bradley Graham, 11ACLU v. Miller, Georgia, June 20, ing Revolves Around TV Liquor The Washington Post, July 26, 1997. Ads, Baltimore Billboard Ban,” in 1997. 12ACLU v. Pataki, New York, June 20, The First Amendment and the Media, 1997. The Media Institute, 1997

24117 S.Ct.2130 (1997)

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Free Speech

Roundtable ○○○○○○○ ight of the nation’s On Feb. 28, 1997, they ○○○○○○○○ Participants: leading authorities on gathered at The Freedom E the First Amendment Forum World Center in Ar- Ann Beeson were invited to a roundtable lington, Va., for a two-hour attorney discussion on First Amend- conversation. Here are ex- American Civil Liberties Union ment trends and thought. cerpts. Lee C. Bollinger president ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ University of Michigan PAUL McMASTERS Is the rationale for free speech changing, and if Ronald K.L. Collins so, how? visiting professor of law 19 Seattle University STANLEY FISH The rationale for free speech has changed since the Robert Corn-Revere ’40s and ’50s. Free-speech values were seen as competing with other First Amendment attorney values, and various forms of balancing tests were employed. Since Stanley Fish the ’50s, and especially since The New York Times v. Sullivan, a stron- arts and sciences professor of English ger sense of the First Amendment has emerged and become a pre- Duke University eminent value—and often in a libertarian direction. Now there are Judith F. Krug beginning to be some signs that that movement is being challenged, director and perhaps some of the challenges might be successful. Office for Intellectual Freedom, American Library Association ROBERT PECK Right now we have a Supreme Court that is prob- Robert S. Peck ably more libertarian in its approach to the First Amendment than First Amendment attorney we have had at any time. You certainly find that in the free-speech Arthur Tsuchiya area. As a result of that, you find that those who are concerned Office of Policy Planning and Research about establishment issues and free-exercise issues often try to frame National Endowment for the Arts them as religious-expression issues to take advantage of the free-

speech precedents. You have that happening at the Supreme Court ○○○○○○○ level and filtering down to the lower courts. At the same time, ○○○○○○○○ Moderator among politicians and the public, there is probably less support for the libertarian approach to First Amendment issues. As a result, there Paul K. McMasters is a constant questioning. “Well, that’s not speech,” is the frequent First Amendment Ombudsman The Freedom Forum refrain you hear, or “That’s really not as important as ...” and you can fill in the blank with a number of different things. That’s the direction that a lot of politicians are going, and certainly a lot of public support. There is a lot of legal theory in that direction as well. As a result, you see laws being passed that are easily struck down by the courts, because they have no basis in our First Amendment jurisprudence.

RONALD COLLINS I’m inclined to agree with Stanley and Bob that

we’re getting closer to a libertarian paradigm. I don’t think by any

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stretch of the imagination we are there, but I think Amendment would allow, encourage, maybe even we are moving in that direction. To the extent that demand [regulation] is just out of the picture, it there might be anything labeled as a First Amend- seems to me, at this point. So if you start with ment “rationale,” it might be best summarized in that fundamental rationale—”What does free one word, “overbreadth.” That is, with the advent speech do?”—I think most people still talk in of the electronic medium (the Internet and the terms of democracy. If you look in terms of Web), problems of overbreadth as evidenced by “What does that mean on an affirmative side for ACLU v. Reno and Shea v. Reno become increasingly the First Amendment?” that is gone. It doesn’t gray. As those problems become increasingly gray, appear to be coming back. We live in a time when the ability to regulate becomes increasingly diffi- free speech is so internalized into the culture, and cult. Because of that, it seems we might move so unthreatened, that it is quite easy to accept a closer to some sort of absolute or libertarian para- general, very strong free-speech rationale. I don’t digm. mean to say that I think that will stand up; indeed quite the opposite. I think that it would be a ANN BEESON Has the rationale for regulations on free speech changed? That is definitely the case. mistake to think that the rationale is secure. Of We see that in particular with respect to the ad- course, we can be concerned about the issues at vent of electronic communications. Those who the margin, but my belief is that there is going to would regulate speech have really been worried— be a period of rabid intolerance again. 20 one of the judges in ACLU v. Reno discusses [this]— PECK: When people talked about the rationale because this new technology allows for too much for free speech, particularly the Supreme Court, speech, if you will. The fact is, your average person they used to recite a laundry list of rationales that now will have the ability to communicate to very included that it was a good unto itself. It is that wide audiences in ways that just weren’t possible rationale that seems to have completely disap- before. Is that going to be the rationale for new re- peared from the discussion. Even though it had Ann Beeson strictions in a different way, theoretically, than was very little gravitational pull in the past, it has dis- the case before, when we were talking about much appeared entirely. That, I think, is an interesting larger media being the only ones with that kind of phenomenon. access? FISH: But I would say that in fact that’s the ratio- LEE BOLLINGER: The rationale has not changed, nale that has won. It has disappeared just like or is not changing. People have been talking for something now part of the fabric of everyone’s the past 25 years in terms of the First Amendment life has disappeared. There has been a demise of and democracy. If you just look at “the rationale” an old question: “What is the First Amendment at that level, it is exactly the same. This seems to be for?” If you answer this question in any way, you the dominant approach for thinking about free are logically committed to censorship, because if speech. If you go to what I might call the second the First Amendment is for something, it means level-type of rationale, I would identify one thing that there must be forms of speech that are sub- where there really has been a dramatic change versive of what you think the First Amendment is over the past 10 years. That is with thinking about for. The only way to avoid that is, in fact, to think the First Amendment as allowing the government that the First Amendment is a good in and of it- some affirmative role, or even the First Amend- self. I think that that notion has won the day by ment as demanding an affirmative role, in terms not having to be proclaimed. of equalizing opportunities for participation in ROBERT CORN-REVERE: It may be winning, but democratic decision-making. There, of course, I it remains to be seen whether or not it is actually am particularly struck by the fact that regulation going to win. Once you start defining those lim- of electronic media in the public interest—like the its, what you are left with is imposing some kind Fairness Doctrine and equal-time provisions—that of literacy test for the First Amendment. Do you

all seems to be vanishing. The idea that the First have to rise to a certain level before your speech

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has sufficient dignity that it will be recognized by fact is we have an unprecedented level of freedom the Constitution? I would agree actually with Lee of expression, from the Internet to our clothing, that we really aren’t seeing a repeat of the issues that is reflected in the culture itself. The culture that happened and were present in the ’40s and has moved very close, or much closer, to some ab- ’50s. We are seeing a repeat of the issues that were solute paradigm than legal doctrine has. In several around in 1910 and 1920 during the [Anthony] respects, legal doctrine has become almost irrel- Comstock era—or actually shortly after he died, evant. When is the last time we saw any signifi- but his legacy lived on; it still does. That’s what we cant prosecutions for print pornography? see in the Communications Decency Act. That is BEESON: I have to disagree with that, because what we see on a whole range of issues like TV rat- again, returning to the real world, the fact is we re- ings and tobacco advertising regulation that are ally do see these efforts every day. They are out haunting us now. While they might not be the there in the real world. They are not in Washing- same issues, it’s still the same question of whether ton. They are not in New York. They are in places or not the government can exert control over like Metairie, La., outside of New Orleans, where speech. It is sort of a cultural McCarthyism, where the sheriff walks into a Barnes & Noble bookstore you are not debating whether or not we have a and says that he is going to shut down the book- Red under every bed, but whether or not the gov- store if they do not put up huge signs that say that ernment ought to act as our parents. The outcome minors are not allowed anywhere near the gay of that remains to be seen. 21 and lesbian section of the bookstore—not the JUDITH KRUG: I have to agree with you. The First sexual section, the gay and lesbian section. There Amendment reached the pinnacle—at least one is one book in that section that even has pictures pinnacle—about 20 years ago, and we have been in it. The rest of it is pure text. going the other way since then. We are finding PECK: Certain issues have replaced sexuality as the more and more in the real world that people are concern of those censors. Gay and lesbian litera- saying the First Amendment is not The Good. ture clearly rises to the top of that list. That’s why There are higher goods. When you start pushing schools face more issues over school libraries that them and saying, “What are the higher goods?” happen to have materials like that. So there has it’s, “Well, we have to protect our children.” This is just been a refocus. That also points out, because a all that we have been hearing recently in educa- lot of it takes place at the public-school level, that tion or in libraries: “We have to protect the chil- one of the great rationales that has always been dren.” They want the government to step in. You present but seems to be resurgent is: “We have to say, “Well, it is the responsibility of parents to protect the children.” So that becomes a justifica- guide their children in what they read.” Then they tion across the board for a wide variety of things. say, “We can’t guide them when it’s print. How are It is when those kinds of issues come up, it be- we going to deal with the Internet?” So they are comes easier to think about either changing the Ronald K.L. Collins pushing the government to get involved in an First Amendment or giving it less weight. area that the government had really begun to COLLINS: move substantially away from. I don’t find this at If I can just qualify my point. I didn’t all heartening as we move into the 21st century. want to suggest that we don’t have all types of government censorship going on. I don’t doubt COLLINS: There is a free-speech culture out there. that we will always have renegade sheriffs in Loui- It’s what people do with it. In many respects the siana or elsewhere. Generally speaking, my point is culture of the First Amendment is far broader than that the mood has moved away from print to im- the narrow doctrine, particularly the commercial age, away from image to the electronic. culture and the entertainment culture. Whatever PECK: we may say, and whatever objections we might What I’m trying to suggest is that there is a make (and appropriately so against various at- duality in the public mind. The same duality that

tempts by the states and Congress to regulate), the we have seen in poll-taking that goes back 90

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years, that shows that the public generally believes the Internet. That’s why the First Amendment in free speech. They believe in freedom of religion. must exist. They believe in separation of church and state. But FISH: Someone is always in control of the First when you give them specifics, they say, “Oh, well, Amendment. To me, the First Amendment is a that’s where I draw the line.” bunch of words, either wonderfully or lamentably FISH: Right. Now I see I’ve fallen in, not among vague, which are then filled with a substantive thieves, but among First Amendment ideologues; content of whatever group manages to get its pre- perhaps Lee Bollinger might be excepted. He will ferred vocabulary into the First Amendment. That let me know. Of course, there is a duality here. It is is why I never recommend jettisoning the First a duality that was nicely captured in the title of Amendment, although I write about its incoher- Nat Hentoff’s second book on free speech, Free ences all the time. My advice is always get a hold Speech for Me—But Not for Thee. That seems to me of it and rewrite it so that it will generate the agen- to be absolutely right, and not only because it is das, inclusions and exclusions you desire, rather my position, but because it is everyone’s position. than the ones that are now being generated by One of the standard tropes, especially in introduc- your enemies. tions to First Amendment books, is to rehearse the CORN-REVERE: Once you are talking about the Robert Corn-Revere argument of Milton’s great oration in favor of free First Amendment as an affirmative obligation, as is press, the Areopagitica, and to link it with [John 22 happening at the FCC now, then I agree with you. Stuart] Mill’s On Liberty. Of course, three-quarters If you read the First Amendment that way, that of the way through the Areopagitica, Milton says, makes the problem much more conceptually diffi- you must understand that when I speak of tolera- cult, which is why the First Amendment is a nega- tion, I don’t mean Catholics—them we burn, or, as tive right, and not a positive right. As a negative he said, them we extirpate, that is, destroy, pull up right, it is rather easy to understand. It is a separa- by the roots. Everyone has a point at which you tion of press and state. The state can’t inhibit nor will say, “Of course, I didn’t mean X.” The duality can it promote particular viewpoints. is a reflection of the fact that First Amendment FISH: principles are affirmed and embraced at a level of It’s not a question of press and state; it is a generality which has no contact with the way in separation of procedure and substance, and since which people actually live and think. Once that, that is an impossible separation, it will never work in fact, is abandoned, as it will be the first time a as its adherents claim it does. real issue is involved, you are going to get a BOLLINGER: One of the most intolerant commu- Milton-like qualification every time, because it has nities within the United States sometimes is the been there all the while, hiding up the sleeve of free-speech community. That is, the least willing to even the purest First Amendment proponent. engage with arguments on the other side that want to restrict speech and so on. We live in an era CORN-REVERE: You have just encapsulated why the First Amendment must exist. Everybody has or a decade in which the strong free-speech side got a pet thing they would love to censor. All you has won out, at the constitutional level, the legal have to do is look at the statements of Reed Hundt level, and at the cultural level as well. So yes, those at the FCC about what he describes as his wish list of you who do day-to-day engagement with for policies he would impose, and compare that people who want to censor feel there is a lot to be with Cathy Cleaver of the Family Research Coun- done. From a scholarly perspective as you look cil, who also has a wish list, and describes the cur- back over the century, you have to say there really is something that is fundamentally different about Arthur Tsuchiya rent situation in almost identical words as Reed Hundt. But they have totally different political the situation we are in now. agendas. They both describe this as a once-in-a- ARTHUR TSUCHIYA: I need to say first, I’m a lay- generation opportunity to get control of this me- person when it comes to legal matters, and I do

dium, and in this case they are both talking about not represent the agency that employs me. That

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said, I am very, very happy to hear that so many of all, it may be the crack in the armor that causes it you feel that the First Amendment is so strong all to fall apart. We see that if you can attack some- right now, because from my perspective I have thing as simple as the depiction or description of seen Congress eliminate the ability of the arts en- violence, which right now is regarded as perfectly dowment to support individual artists at all. I have protected speech. (In fact, you are allowed to ad- seen them fire half of my colleagues, and reduce vocate violence consistent with the First Amend- our budget by 40%, largely tied to controversies ment.) If that falls away, it is hard to see how the that have arisen over the content of various works damage to something so well protected, so much a of art, which allegedly have been supported in part part of speech for so long, does not infect all other by my agency. It is difficult for me to reconcile kinds of speech that you think are also fully pro- those facts with some of the more theoretical com- tected. ments that I have heard, although I appreciate McMASTERS: Does violence deserve First Amend- things have been worse. ment protection, or should it be treated as obscen- McMASTERS: We have been speaking generally in ity—beyond the pale? terms of political speech. Arthur, you’re speaking FISH: In a way, the free-speech lobby has brought of artistic speech. That raises the question: Do this upon itself, because one of the strongest of some kinds of speech deserve more protection free-speech arguments, and in fact the entire basis than others? for there being a First Amendment at all, is the dis- 23 TSUCHIYA: That sounds similar to a question that tinction between speech and action. Therefore, a senator asked of the National Endowment for the assumption that when you are advocating the Arts chairman last year during her testimony something, either in a philosophy seminar or in a in front of an appropriations subcommittee. He political forum, advocacy is not action. In a sense, asked her whether the fact that the endowment is therefore, advocacy takes on some aspects of what using public funds to support various projects, and has always been attributed to art, which is a cer- given that some members of the public disapprove tain disinterestedness. of certain kinds of art works, shouldn’t that mean COLLINS: In many attempts to protect the First that the criterion for giving federal grants to artists Amendment, a number of fine First Amendment should be at a higher threshhold than other types defenders have defanged it, or attempted to of speech that are protected by the First Amend- defang it. They’ve said, “No, this speech is really ment? Her response was that we make our grants not dangerous. It’s safe; we really should allow it.” on the basis of artistic quality, and that it is up to I disagree. I want to protect it precisely because it is the courts and it’s up to people like you to decide dangerous. It seems to me that if it weren’t danger- Judith Krug the other issues. I guess I have to echo that. ous, why would it need to be protected? Tom PECK: Certainly the arts endowment issue turns Paine did pose a clear and present danger. This that controversy on its head if those who propose isn’t to say that his words should not have been that political speech should receive the apex of protected. It seems to me if the First Amendment is constitutional protection prevail. It is the most po- to have any real viable force, then sometimes we litical of art that receives the attacks. Thus, the will have to just bite our lips and say: “This is dan- same people who often say that political speech is gerous. This really is risky. This really is an experi- the only speech to be protected are attacking the ment. This experiment really can fail, but none- arts endowment over precisely that kind of speech. theless we commit ourselves to this experiment for It makes for an interesting juxtaposition of their better or worse.” And the reality is, it may be for views. Every conflict we have now has seeds in the worse. past. That is one thing that causes those of us who CORN-REVERE: It depends entirely on what you work in the First Amendment vineyards to think mean by danger and danger to whom. Free speech that it has great fragility. If you lose one of these has always been dangerous to people in authority.

debates, which may not seem terribly crucial over-

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KRUG: All ideas are dangerous. might be dangerous. The point I’m trying to make is that free speech must not become its own cliche. CORN-REVERE: That’s why printing presses were licensed. That’s exactly why the Internet is under It must not become banal. siege, because people in authority see this as a way COLLINS: More and more of public expression to- of getting around them, of challenging their posi- day is being regulated by the “private sector.” By tions of power. That is true culturally as well, far the greatest restraints on freedom of the press which is why there is a culture war going on that are imposed by advertisers in terms of either direct is manifesting itself in legislation. The current dictates or indirect self-censorship. Moreover, trend isn’t really to look at whether or not images what we are seeing with the Web and the Internet of violence are inciting anything. They are simply is almost the demise of the state-action doctrine, saying that images of violence are bad in them- the idea that public expression is somehow related selves, and that the policymakers who would make to state action. Finally, in light of the Internet and those decisions have a very clear idea in their own the Web, and in light in some of the brilliant briefs minds of which violence is permissible, and which that Ann has written in this area, state constitu- violence isn’t. Sure, all ideas and all speech is dan- tions, so far as their free speech provisions are con- gerous to somebody, but whether or not it is dan- cerned, are virtually dead when it comes to any- gerous in a way that justifies some kind of social thing having to do with the interstate commerce control is a totally different question. of online communication. So to come back to the 24 question full circle, if we do have any sort of value, KRUG: The other question that always comes up is who is going to make the determination as to to the extent there are any values, it is the technol- what is dangerous to whom? Then you come into ogy that is really dictating or directing or moving the distinction between words and actions. If you us into new paradigms about state constitutions, take action on that basis, then you are liable for about federalism, and how we come to accept pri- prosecution according to the act that you commit. vate censorship. That’s where we are: Private cen- You keep going back through history and even sorship is entitled to First Amendment protection. more recently, [you find] the same question about It’s ironic. the difference between words and action. Then, of CORN-REVERE: There are all kinds of censorship course, the overriding question is who is going to that are perfectly legitimate. As a parent, I censor decide what is violent and what is bad? my kids all the time; that’s my job, but it’s not unconstitutional censorship, because we are talking BOLLINGER: The problem as I see it is that there will be so much effort within the First Amendment about something entirely different. In the context community in its broadest terms to get this perim- in which you describe censorship, what we are re- eter really secure. There is a focus on this as if it is ally talking about is editing. So what the First somehow really the touchstone of what free Amendment is about is whether or not the gov- speech means in the country. More importantly, ernment has the power—the relationship of gov- the First Amendment will lose over time a deeper ernment to speakers, and not to others. Now as a set of values about what it is that is trying to be ac- cultural phenomenon is it true that certain people complished through free speech. By that, I’m re- have more say about what their facilities are used Lee C. Bollinger ally referring to the era of the ’60s and ’70s in for than others? Yes, that’s true. But by the same which this affirmative side of the First Amend- token we also have an evolution of a society and a ment seemed to me to be much more promising system in which individuals are empowered more for a free speech that would have some integrity to and more to engage in speech. That’s what the it, as striving for equalization of opportunities of Internet is all about. In fact, rather than concern speech, democratic participation, values like that, about corporate censorship, the Communications which seem to me to be more consistent with the Decency Act is motivated by a concern that indi- goals of the society, rather than a determination viduals are too free to engage in speech. This no-

not to let any regulation occur on anything that tion of affirmative rights being the core principles

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that we need to get back to is really where all this other things that we value, and again, we would began, the whole notion that you could take a me- submit that the First Amendment, first and fore- dium and treat it as one in which you could use most, has protected those rights. whatever political judgments you use to fashion KRUG: It allows for those other debates to take socially useful policies. place. BEESON: The better example is the hot topic on PECK: More fundamentally, it is not just instru- the Internet right now about blocking software mental, but it has this function where it enables and how pervasive it is going to become. If you our creativity. have networks like America Online and McMASTERS: CompuServe and Prodigy, who together provide There is a considerable and very services to over 12 million Internet subscribers in strong body of thought within the academic com- the U.S., and if they as a policy matter decide to munity that free-speech rights should not prevail impose some sort of mandatory blocking, so that in all situations, that there should be, in fact, no the default is always that the block is on, then you protection for speech that is hateful or harmful to turn on your computer, and all sorts of speech is individuals or groups—especially on the college blocked. The value obviously behind the First campus. Have I mischaracterized that thinking, Amendment is to promote some sort of true diver- Stanley? sity, some sort of true marketplace of ideas. The FISH: Not at all, although that body of thought, 25 point that Ron is making is why is that situation given the court decisions that have come down in any less problematic than one in which the gov- that area, is unlikely to be successful. Notions like ernment is involved? diversity and creativity and information are not simple notions, although they are simplemindedly BOLLINGER: It is interesting that the ACLU all invoked. through the ’50s, ’60s, ’70s was on the side of pub- Stanley Fish lic regulation of broadcasting and cable for public COLLINS: I will name an old-fashioned value. access purposes. That’s the distinction that one That is the idea that one value—not the sole would like to aim for: That is, the discussion about value—of the free-speech principle is to protect what types of government regulations—or in- the powerless against the powerful. That principle volvement with media, in particular—help to ad- is echoed time and time and time again through- vance the kinds of goals we would like to see ad- out history. If we have reached the point at which, vanced. We’ve got to talk about what those goals in the name of First Amendment freedoms, we are, as well as what regulations would advance protect the powerful almost categorically against them; but those goals would have a lot to do with the powerless, then there is the question: “Is this equalization of opportunities for speech and so First Amendment still worth protecting?” One of on. That is a huge debate. the big differences here is that the First Amend- ment allows the courts to cure the problem you PECK:One of the things that I think has gone on here, Paul, is that we have refocused your ques- have identified, at least in theory. But with private tion. Your question originally seemed to act as if censorship, court action is not possible precisely there were conflicts between the First Amendment because the First Amendment protects private cen- and other fundamental values. I would submit sorship. That is a radical difference. that those of us who work in the First Amendment PECK: What you have done is you have restated a community would say that that is a false di- problem that one of my old professors, Thomas chotomy—that there is nothing inconsistent be- Emerson, used to talk about as a flaw in the First tween the First Amendment and many of the Amendment. What he used to say is that the prob- other values we most hold dear. The First Amend- lem with freedom of the press is that not everyone ment has been the most important civil rights act can own a press. ever passed. It has been the most important politi-

cal reform ever passed. You can go down the list of

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COLLINS: With the Internet, that’s no longer true, free speech and in giving equal access to speech as of course. it now has in disciplining its power to intervene in that speech that manages to get expressed. This PECK: Right. The Net, to some extent, addresses that. The fact is that what really concerns people would be, in some sense, expansive and more affir- who are very much in the First Amendment camp mative. But as someone will immediately point is this fear of government action; the authoritative out to her—and they would be correct—this approach that they would take to speech. That would be at the expense of something. fear translates into a fear of how they would deal PECK: Let me disagree. The problem that I have with private censorship if they had that power. with essentially replacing one set of speakers with Clearly we know that a government that is con- another is that it assumes that there is a finite cerned about exercising power and maintaining amount of speech out there, and the fact is that power is going to exercise it in a way that is good there is not. We can all be speaking at the same for its friends, and not so good for its enemies. time. We might not hear each other at that mo- Clearly, since the First Amendment paradigm has ment, but there is nothing to stop us from doing always been that it is the dissenter, the minority so. There is no limit to the avenues, sentiments, who needs the speech, I would assume that any range of ideas that can be spoken. government that had the power to deal with pri- COLLINS: To defend the equality principle is to at- vate censorship would do it in a way that favored 26 tack, in many respects, the libertarian First exactly the interests that you are most concerned Amendment principle. It seems that a lot of the about, and that one of the reasons why we are discussion that we are having is a collision of these concerned about that is that there are other ap- two principles. You have the egalitarians on the proaches. one hand—maybe represented by Professor BOLLINGER: It elides the problem to say that MacKinnon and Richard Delgado and others— there is no conflict between different values. If and then your First Amendment absolutists. So it Catherine MacKinnon were here, she could make seems that the question is, Will that continue? the case very powerfully that there are free-speech McMASTERS: Many of the speech issues you have issues at stake in the allowance of pornography. been raising already are playing out on the There are a lot of people in the hate-speech regula- Internet and the World Wide Web. Does online Robert Peck tion community who would make exactly the speech deserve the highest First Amendment pro- same arguments. That is something we have to tection? recognize is on the table and has to be sorted COLLINS: through. It is a mistake to think just in terms of, If online speech is entitled to the high- “We can’t trust the government to draw any est level of protection, why not the same for all lines.” It is a risk. But there are also lots of risks in other types of expression? Can we really have dif- not doing anything about it. The other point is ferent standards? that there is a set of issues ... about a broader no- CORN-REVERE: But as a matter of history, it has tion of democracy and free speech than simply always operated in precisely the opposite way. stopping the government from being able to cen- Censorship is reverse engineered. Once you allow sor. That debate is largely gone today, and I think it for a more advanced medium, it tends to end up that is a real pity. bleeding over and affecting more traditional media to the extent that they start using electronic FISH: In Catherine MacKinnon’s views of the First Amendment, principle will be defined in terms of tools in their production. There were people seri- specific experiences and the particularity of his- ously advocating applying the Fairness Doctrine, tory substantively, rather than abstractly. This new for example, to entities like The Wall Street Journal model will notice who is being hurt, and never and USA TODAY because they used satellite deliv- forget who they are. The state will have as great a ery. They were using airwaves, so there was a juris- role in providing relief from injury to equality of dictional hook for the exertion of federal author-

ity. You see that as well with the Internet, even

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though it has none of the attributes of broadcast, community in part has not dealt with the access except it is electronic, but there is no government- issue strongly. I don’t know what it is about the created scarcity, as there is in the case of broadcast current state of the community that is making it media. There is no unique accessibility by chil- harder for us to advocate that way. It is somewhat dren. To whatever extent it exists, it is more con- of the chicken-or-the-egg proposition. I don’t trollable in that form than any other. Yet the gov- think it should be. In other words, we should be ernment is justifying its regulation both on its fighting both those battles. The point being that if historic ability to treat different media differently we have a victory that seemingly keeps the govern- and its ability to exert special protections for chil- ment out of regulating the Internet, it is a totally dren in the case of the electronic media. That cre- hollow victory if your average person has no ac- ates anomalous situations when you start treating cess to the technology, thus is privately censored, identical speech in different ways based on its me- etc. dium, such as in the encryption area, where you KRUG: That’s why universal service is going to be- have a book with a cryptographic source code become very important, because the schools are going allowed for export, but the disk with identical ing to be hooked up to the Internet. Access is go- information being suppressed. So once you allow ing to be through the libraries of this country. It is the regulation in one medium, it tends to end- going to be made available across the board, and it lessly expand. is going to cover all forms of electronic communi- 27 BEESON: I wanted to get back to Lee’s suggestion cation. about how we are arguing at the peripheries. It is BOLLINGER: There is still commercial TV. There is Paul McMasters that precise fact that makes it so important that still cable. We still have a mass media. I think what we do make these arguments. In other words, I heard Ann saying is that if we prevent this intru- there are real slips that are occurring. That’s why it sion by the government in the Internet, it doesn’t is important that we always make the argument matter so much if only the top 30% economically both at the periphery and at the center. I share have access to this medium.

everyone’s concern that the First Amendment

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○○○○○○○○○○○○○○○ Biographies named the 12th president of the ROBERT CORN-REVERE University of Michigan in November Robert Corn-Revere is a partner in 1996. Two of his acclaimed schol- the Washington, D.C., office of ANN BEESON arly works on First Amendment lit- Hogan & Hartson, specializing in As an attorney for the American erature include Images of a Free First Amendment and communica- Civil Liberties Union, Ann Beeson is Press (University of Chicago Press, tions law. Before joining Hogan & a primary architect of the landmark 1991) and Freedom of Speech and Hartson in 1994, Corn-Revere ACLU v. Reno case in which a fed- Extremist Speech in America (Ox- served as legal adviser to Commis- eral court declared the federal ford University Press, 1986). sioner James H. Quello of the Fed- Communications Decency Act eral Communications Commission. (CDA) unconstitutional. She is staff RONALD K.L. COLLINS In 1993, he was named chief coun- counsel at the ACLU National Ronald K.L. Collins is a visiting pro- sel during Quello’s tenure as chair- Headquarters in New York City, fessor of law at Seattle University. man of the FCC. In 1995, he was where she works as a litigator and He is the co-founder and president named adjunct scholar to the Cato online activist to promote and proof the Center for the Study of Institute in Washington, D.C., and tect civil liberties in cyberspace. In Commercialism, a nonprofit public- became a member of the board of addition to her work on the federal interest group in Washington, D.C. trustees of the Media Institute, as level, Beeson has monitored and A former judicial fellow serving un- well as chairman of the Media 28 opposed state efforts to censor der the Chief Justice of the United Institute’s First Amendment Advi- online speech. In September 1996, States, Collins also clerked for Jus- sory Council. In addition, Corn-Re- she filed the first constitutional tice Hans Linde of the Oregon Su- vere is a prolific writer on First challenge to a state Internet cen- preme Court. In 1992, he wrote a Amendment issues, teaches a semi- sorship law in ACLU v. Miller, which report called Dictating Content: nar in First Amendment law at seeks to overturn a Georgia statute How Advertising Pressure Can Cor- Catholic University’s Columbus that bans anonymous speech in rupt a Free Press. Last year, Collins School of Law, and is faculty ad- cyberspace. In January 1997, she published Death of Discourse viser to Commlaw Conspectus, a filed American Library Association (Westview/Harper Collins), co- journal of communications law and v. Pataki, a First Amendment chal- authored with Professor David policy. lenge to New York’s online inde- Skover. He will soon complete his cency statute. next book, Seeds in the Soil: Free STANLEY FISH Speech Aphorisms (1997). In addi- Stanley Fish is an Arts and Sciences LEE C. BOLLINGER tion, he has written 40 scholarly ar- Professor of English and a Professor Lee C. Bollinger is president of the ticles in various journals, including of Law at Duke University and is University of Michigan and a mem- the Harvard Law Review, Stanford the executive director of the Duke ber of the faculty of law. After serv- Law Review and Michigan Law Re- University Press. In 1994, he pub- ing as a law clerk to Judge Wilfred view and has written for the Nation lished There’s No Such Thing as Feinberg on the United States and the Columbia Journalism Re- Free Speech, and It’s a Good Thing, Court of Appeals for the Second view. Recently, he published an ar- To o (Oxford University Press). He Circuit and for Chief Justice Warren ticle on the free-speech rights of has taught First Amendment law, Burger on the United States Su- the online press appearing in Intel- Liberalism and Legal Theory, The preme Court, he joined the faculty lectual Capital.com, an online Critical Legal Studies Movement, of the University of Michigan Law magazine. and Literary and Legal Interpreta- School in 1973. In 1987, he was tion, among others. His works in named the dean of the University progress include Milton’s Aesthetic of Michigan Law School, a position of Testimony, or It Takes One to he held for seven years. He was Know One, a study of John Milton’s

political, religious, and aesthetic

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views, and Self and Community in torial director of USA TODAY. On ties Union. In addition, he is the au- Early Seventeenth Century Lyric. November 1, 1995, he assumed his thor of numerous books, including Over the past two decades, 75 ar- current role as First Amendment The Bill of Rights and the Politics of ticles, parts of books, dissertations, Ombudsman at The Freedom Interpretation (West Publishing, and reviews have been devoted to Forum’s headquarters in Arlington, 1992) and We the People: The Con- his work. Translations of his writ- Va. As Ombudsman, he works to stitution in American Life (Harry ings have been made into French, educate and inform about First Abrams, 1987). German, Italian, Japanese, Chinese, Amendment issues that arise in Spanish, Portuguese and Hebrew. Congress, the courts, the media, ARTHUR TSUCHIYA and other areas of public life. Arthur Tsuchiya is the senior policy JUDITH F. KRUG McMasters speaks and writes fre- adviser in the office of Policy, Re- Judith F. Krug is a noted speaker quently on all aspects of First search and Technology at the Na- and author in the area of intellec- Amendment rights and values, in tional Endowment for the Arts, tual freedom; her articles on this particular free speech, free press, where he focuses on the National subject have appeared in national censorship, and access to govern- Information Infrastructure and library and education journals. She ment information. McMasters is ac- other technology issues as they re- has been the director of the Office tive in a number of press groups late to the arts. In these areas, for Intellectual Freedom of the and is the former national president Tsuchiya is the agency’s primary liai- American Library Association since of the Society of Professional Jour- son with the arts community, other 29 1967 and executive director of the nalists. His most recent publication federal agencies, foundations, and Freedom to Read Foundation since is “A First Amendment Perspective the private sector. He was instru- 1969. She has been the editor of on Public Journalism” in Mixed mental in the creation and develop- the Newsletter on Intellectual Free- News: The Public/Civic/ ment of the endowment’s World dom since 1970. In addition, Krug is Communitarian Journalism Debate. Wide Web site and a primary archi- the immediate past president of Phi tect of Open Studio, a national Beta Kappa of the Chicago Area, ROBERT S. PECK Internet public access and Web and also serves on the board of di- Robert S. Peck serves as director of mentoring project. Tsuchiya has rectors of the Fund for Free Expres- Legal Affairs and Policy Research been an administrator and educa- sion and the Council of Literary for the Association of Trial Lawyers tor in the media arts for more than Magazines and Presses. She served of America, a voluntary association 20 years. As an adviser to numer- on the board of directors of the Illi- of 60,000 trial lawyers dedicated to ous state, regional, national, and nois Division of the American Civil preserving the right to a jury trial public broadcasting funders, he Liberties Union, and has just com- and an effective civil justice system. was an arts program analyst in the pleted a six-year term as a member He is also a member of the adjunct Media Program of the New York of the American Bar Association’s faculty of American University’s law State Council on the Arts from Commission on Public Understand- school, where he teaches legal eth- 1981-1989. As an educator, he has ing About the Law. ics and a constitutional-law semi- taught a variety of arts and media nar. A noted First Amendment law- subjects at the Minneapolis College PAUL K. McMASTERS yer, Peck serves as vice president of Art and Design, the Visual Stud- Paul K. McMasters is a 31-year vet- (and is past president) of the Free- ies Workshop in Rochester, N.Y., eran of journalism who came to dom to Read Foundation, serves on and Middlebury College in Ver- The Freedom Forum in 1992 to the Emergency Committee to Pro- mont. Previously, Tsuchiya produced serve as executive director of The tect the First Amendment, and and exhibited photography, audio Freedom Forum First Amendment chairs the national Lawyers for Li- art, video, mixed-media installa- Center at Vanderbilt University. braries project. Previously, Peck tions and digital media works at Prior to that, he was associate edi- served as the First Amendment venues in this country and abroad. counsel in the Washington national

office of the American Civil Liber-

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Freedom of the Press

reedom of the press is Alexander Hamilton, per- one of the grand suaded a jury to set him F themes of American free. When the First Many of liberty. The ability to report Amendment to the Consti- on government behavior tution was ratified in 1791, the bars to and contemporary events it seemed to bar the concept without fear of official cen- of seditious libel; neverthe- a free press sorship or retribution is in- less, the Sedition Act of dispensable to democratic 1798 was enacted as an at- that arose self-government. As Thomas tempt by the Federalist 31 Jefferson put it, “The basis Party to suppress opposition of our government being to its programs. The law in the ’80s the opinion of the people, made it a crime to publish the very first object should “false, scandalous, and mali- are still be to keep that right; and cious writing or writings were it left to me to decide against the United States, or with us. whether we should have a either house of the Congress government without news- ...or the President.”1 The papers or newspapers with- law was used by the admin- out government, I should istration of John Adams to not hesitate a moment to jail editors who supported prefer the latter.” Democratic-Republican 2 Jefferson was drawing on Party positions. It expired an American tradition that after several years, but op- predated the Revolution. It position to government was in 1735 that John Peter policies remained punish- Zenger, publisher of the able under a succession of New York Weekly Journal, congressional statutes, presi- faced trial for criticizing dential orders and court de- New York’s governor, Will- cisions. iam Cosby. Zenger was tried Even Jefferson turned out under the law of the day to be inconsistent on this that treated press criticism score. He criticized the law of the government as a against seditious libel but crime called “seditious li- voiced no objections when bel,” a law carrying a pos- it was used against those sible penalty of death. Even who criticized him during though truth was no de- his presidency. A similar

fense, Zenger’s lawyer, ambivalence was exhibited

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a century later by Justice to discourage press coverage court resoundingly rejected Oliver Wendell Holmes, of the struggle against segre- the federal government’s at- who wrote stirring opinions gation. In a landmark deci- tempt to block the publica- on First Amendment free- sion, the Supreme Court tion of confidential docu- doms but rationalized the overturned the Alabama ments in the name of use of the Sedition Act of courts and invalidated the national security. 1918—which remains in ef- state’s libel law. The court With such strong fect—to imprison socialist ruled that Sullivan could affirmations of press free- Eugene Debs for his not prevail against the dom from the nation’s speeches advocating resis- newspaper even if the ad highest court, the hope was tance to military conscrip- contained inaccuracies that the media could report tion during World War I. (which it apparently did), the news without being Thus, for nearly two centu- unless the newspaper itself concerned about lawsuits ries after the founding of was shown to have had and government interfer- the country, state and fed- “reckless disregard” for the ence. Indeed, that seemed eral libel laws discouraged accuracy of the statements it to be the case during the blunt criticism of elected of- published and thereby had 1970s, when major news outlets such as The Washing- 32 ton Post and The New York Times took an aggressive posture in investigating the The Watergate glamour days of Watergate scandal—and thereby helped to bring about the resignation of the media were short-lived. President Richard Nixon. The Watergate glamour days of the media were ficials. The Supreme Court acted with “actual malice.” short-lived, however. The sanctioned these laws, rul- A free and robust press, the shift of the country to the ing as late as 1942 that li- court said, needed to oper- right brought with it a back- belous statements, along ate without fear of being lash against Post Watergate with obscenity and “fight- prosecuted and incurring reporters Woodward and ing words,” fell outside the heavy legal fees each time Bernstein and their breth- protection of the First an error was made. The ren. The reaction was appar- Amendment. Sullivan case was an enor- ent in the courts as well as All this changed in 1964, mous boost to press free- in public opinion. During when the court ruled on a dom; subsequently, the Su- the 1980s there was a dra- libel complaint brought preme Court extended the matic rise in libel litigation against The New York Times “reckless disregard” stan- across the country. The by L.B. Sullivan, the police dard to public figures as Philadelphia Inquirer, an ar- commissioner in Montgom- well as public officials. dent practitioner of investi- ery, Ala. Sullivan claimed to The media’s protection gative reporting, found it- have been defamed by an against government inter- self at one point responding advertisement that civil ference was greatly to 15 different libel suits. rights leaders had placed in strengthened by the Su- Retired Gen. William the newspaper. His lawsuit, preme Court’s 1971 ruling Westmoreland brought suit which was successful in the in the Pentagon Papers con- against CBS in response to a

Alabama courts, was meant troversy. In that case the documentary that charged

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that he had falsified reports when they were revived by to his superiors during the the Bush administration LARGEST DEFAMATION VERDICTS Vietnam War. Israeli Gen. during the Persian Gulf War. Ariel Sharon sued Time Where, then, does free- Case Amount Decision magazine for the way it dom of the press stand in characterized his connec- the 1990s? The truth is that MMAR Group Inc. v. Dow Jones & Co. $222,700,000 Appeal pending after tion to a massacre of Pales- many of the bars to a free (D. Texas 1997) court eliminated $200 million in punitive tinian civilians. and robust press that arose damages It was also during the during the 1980s, indeed Feazell v. A.H. Belo Corp. $58,000,000 Settled 1980s that the press was from the very beginning of (Texas 1991) subjected to an all-out effort the republic, are still with Guccione v. Hustler Magazine $40,300,000 Reversed by the Reagan administra- us, along with an assort- (Ohio 1980) tion to manipulate the way ment of new threats. Lerman v. Flynt Distributing Co. $40,000,000 Reversed in which events were cov- (2d Cir. 1983)

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○○○○○○○○ Sprague v. Philadelphia Newspapers $34,000,000 Settled following merely aggressive public-re- Libel awards (Pa. 1990) reduction to $24 million lations management, espe- against the press Srivastava v. Hart Hanks $29,000,000 Settled cially the sophisticated stag- (Texas 1990) ing of presidential The rising tide of libel judg- 33 appearances. Yet the Reagan ments against the press Pring v. Penthouse International $26,535,000 Reversed (10th Cir. 1981) administration also resorted peaked at the beginning of to stronger measures to try the 1990s and then declined Newton v. NBC $19,200,000 Reversed to control coverage. Secrecy a bit for a couple of years. (D. Nevada. 1986) policies were greatly intensi- Since the middle of the de- Prozeralik v. Capital Cities/ABC $18,487,000 Remanded; $11.5 million fied, and agency coopera- cade, however, the trend (New York 1991) award at second trial; tion with the press was un- has been moving up sharply subsequently settled after appellate court dermined by rules that again. On March 20, 1997, reversed punitive but established criminal penal- in a case that threatened to affirmed compensatory ties for federal employees “wholly rewrite libel law,” damages, reducing who disclosed information according to First Amend- award to $11 million 2 without authorization. The ment lawyer Floyd Abrams, Nguyen v. Nguyen $16,080,000 $5.08 million judgment administration went a step a federal jury in Houston (California 1991) neither appealed nor further during the U.S. in- awarded the highest libel satisfied by bankrupt vasion of Grenada in 1983. verdict in American his- defendant Reporters were barred from tory—a whopping $222.7 Newcomb v. Plain Dealer $13,500,000 Settled the island for several days million—against The Wall (Ohio 1990) and were later subjected to Street Journal and its parent, other restrictions on their Dow Jones & Co. In this Source: Libel Defense Resource Center activities. The Reagan White case, a Houston jury found House also initiated the five statements made in an practice of using press pools Oct. 21, 1993, article to be to control the flow of infor- false and defamatory. mation and restrict the The magnitude of The number of reporters en- Wall Street Journal verdict re- gaged in direct information- flected the uneasy relation- gathering. The insidious ef- ship between journalists fects of such policies and the public. The verdict

became apparent once again was nearly four times

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higher than the previous against defendants in prod- gained access to the super- record for a libel verdict, uct liability and medical markets. This move allowed $58 million in a 1991 case malpractice suits.3 Food Lion to sidestep First against a Dallas television Amendment considerations

station. Not surprisingly, and the issue of whether the

○○○○○○○○○○○○○○○ when The Wall Street Journal The roar of reporting was accurate. In- appealed the amount of the Food Lion stead, the company made verdict two months later, ABC’s reporting practices Judge Ewing Werlein in While the judgment in The the issue. A jury in Greens- New York eliminated the Wall Street Journal case is boro, N.C., was persuaded $200 million in punitive troubling to the press in that the network had acted damages, letting stand the quantitative terms, a verdict improperly, and awarded almost $23 million in actual in a case brought by the punitive damages of $5.5 damages. Dow Jones ap- Food Lion supermarket million to Food Lion in pealed, but on Nov. 6, 1997, chain represents a serious January 1997. In arguing a federal judge in Houston qualitative threat. Food ABC’s appeal of the judg- upheld the $22.7 million Lion Inc. sued ABC News in ment before U.S. District award. response to a 1992 Judge Carlton Tilley on June 34 The Wall Street Journal “PrimeTime Live” story on 24, attorney Nat Lewin said award is part of a trend: Pu- allegedly unsanitary prac- that they were unconstitu- nitive damages are playing a tices in the meat depart- tional and were justified larger role in libel verdicts. ments of the nation’s fast- only if bodily harm were in- Punitive awards against the est-growing supermarket volved. “This opens the press in 1996 averaged $2.8 chain. The story was based door to permit these kind of million, a dramatic increase on hidden-camera docu- lawsuits and threatens fu- over the average of $1.6 mentation gathered by ABC ture investigative reports million for the 1994-95 pe- producers who got them- like this,” said Lewin.4 The award was reduced later to $315,000 Jane Kirtley, executive di- Punitive awards against the press rector of the Reporters Committe for Freedom of in 1996 averaged $2.8 million, a the Press, maintains that the Food Lion case “is not dramatic increase over the average the poster child of what’s wrong with journalism today.” Surely, the public had of $1.6 million for the 1994-95 period. seen it before: a hard-hit- riod, according to a study selves hired at Food Lion by ting, hidden-camera investi- by the Libel Defense Re- falsifying their résumés and gation by journalists, reveal- source Center, although without disclosing their ing the dangerous practices there were fewer libel trials journalistic affiliations. of an industry leader. in 1996 than during the Food Lion did not bring The Food Lion case, 1980s. The LDRC data also a libel suit against ABC. In- along with other high-pro- suggested that juries levied stead, the company charged file legal attacks on the me- significantly higher dam- the television network with dia, signaled the advent of a ages against defendants in trespass and fraud for the new type of litigation tech-

libel cases than they did way in which the producers nique aimed at avoiding tra-

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ditional free-press jurispru- • “60 Minutes” decided Rather than dismissing dence. These lawsuits, not to air a story on prac- these cases as misguided or dubbed “trash torts” by Chi- tices of the tobacco indus- mean-spirited, the journal- cago Tribune lawyer Dale try, demonstrating the chill- ism world appears to be tak- Cohen, include such claims ing effect of outside pressure ing quite seriously public as invasion of privacy, intru- combined with in-house complaints about deceptive sion upon seclusion, inflic- fear of expensive legal ac- practices, hidden cameras, tion of emotional distress, tion. CBS had interviewed and attempts to lift televi- tortious interference, tres- on tape Jeffrey S. Wigand, a sion ratings through mis- pass, fraud and others. former executive of Brown leading coverage. Some Other incidents involv- & Williamson, the nation’s worry that overreaction will ing controversial journalism third largest tobacco com- defang the public’s watch- practices over the last de- pany. While still investigat- dog. Even though aggressive cade include: ing Wigand’s allegations, a reporting has been respon- • In its quest to expose producer of “60 Minutes” sible for many of the key allegedly faulty gas tanks on was advised by CBS to drop achievements of modern General Motors pickup the story. The reason: CBS U.S. journalism, the fear of trucks, NBC’s “Dateline” in- lawyers were concerned legal entanglements tends vestigators rigged an explo- that, in pursuing Wigand’s to make reporters and edi- 35 sion. GM filed suit and interview, producers may tors seek refuge in safer sto- forced the network to settle have interfered with a con- ries. Bruce Sanford, a vet- and reveal its deceptive fidentiality agreement eran First Amendment practices. Ironically, months signed by Wigand before he lawyer, is concerned that in after the program, then- left Brown & Williamson. that sort of atmosphere the Transportation Secretary Interestingly enough, not media “will give us more Federico Pena declared the all of the public shares the stories about Dennis Rod- trucks unsafe and likely re- Food Lion jury’s disdain for man and Madonna instead sponsible for 150 deaths. deception in news-gather- of more stories that are im- GM agreed to spend $51 ing. According to a Media portant to us.”5 million on safety and re- Studies Center/Roper Cen-

search programs rather than ter survey released Feb. 12,

○○○○○○○○○○○○○○○ pursue a legal battle with 1997, by The Freedom Fo- Judges and the government. rum, 59% of those aware of journalists in conflict • To produce a segment the Food Lion case thought on sanitation practices at a the $5.5 million penalty In our democratic system, meat-packing plant in Rapid against ABC News was too one of the key roles of the City, S.D., CBS’s “48 Hours” severe. Even so, some print media is to serve as court re- staff persuaded an employee journalists and columnists porter to the public. We rely at the plant to wear a hid- took ABC to task for its re- on the press to report about den camera during his shift. porting techniques. Colum- the justice system—both be- In an unsuccessful effort to nist A.M. Rosenthal of The cause of the vital informa- prevent the video from air- New York Times said that by tion that often is revealed ing, the meat-packing com- going undercover at Food during trials and because pany filed suit alleging tres- Lion, ABC investigators had the public nature of court- pass, invasion of privacy, done what they would room proceedings is sup- breach of duty of loyalty, “never willingly allow done posed to promote fairness to and violation of the Uni- to themselves.” the parties in them. Those

form Trade Secrets Act. two goals, however, are not

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always in harmony. All too ing an unbiased jury be- Supreme Court held that often there is a conflict because of newspaper accounts under such circumstances tween the First Amendment in the highly publicized the defendant’s Sixth guarantee of freedom of the trial of Aaron Burr for trea- Amendment rights had press and the Sixth Amend- son. In 1935, after the “cir- been violated, and his con- ment right to a fair trial. In cus atmosphere” at the trial viction was reversed. In the past, courts have been of Bruno Hauptmann in the agreeing with the majority, circumspect in their rulings, Lindbergh baby kidnapping however, Justice Harlan cautioned that the decision in Estes should not become the bright-line rule for cameras Public debate over press coverage in the courtroom. Televised coverage of of court proceedings reached an courtroom proceedings has changed dramatically since all-time high during the 1995 the chaotic Estes case. Tech- nology has made camera double-murder trial of O.J. Simpson. coverage less intrusive, 36 enough so that little physi- but recently they have case, the American Bar Asso- cal distinction remains be- leaned more toward fair- ciation adopted guidelines tween televised coverage trial interests. The results against the use of cameras in and other forms of press are restraints—often of an the courtroom. coverage. Today, 48 states undue nature—on media Thirty years after the allow camera coverage of coverage. Lindbergh trial, the Su- court proceedings, subject Limitations on media preme Court faced its first to restrictions. In 1996, after coverage of court proceed- evaluation of the effects of abandoning a three-year ings have taken several televised courtroom pro- tryout of cameras in se- forms. Courts have banned ceedings in the 1965 case of lected federal courtrooms, cameras and other elec- Estes v. Texas.6 The defen- the Judicial Conference of tronic coverage from the dant, Billie Sol Estes, was an the United States lifted a courtroom, restricted press associate of President ban on camera coverage of access to courtroom pro- Lyndon Johnson and was appellate cases, leaving the ceedings, forced journalists charged with swindling. Ac- decision to the individual to reveal confidential cording to those who par- circuit courts of appeals. sources of information, ticipated in the Estes trial, Public debate over press sealed records and placed the media’s presence in the coverage of court proceed- gag orders on trial partici- courtroom created a “cha- ings reached an all-time pants. otic” scene. At least 12 cam- high during the 1995 eramen were set up in the double-murder trial of O.J. Allowing cameras courtroom to record the Simpson. For months, the in the courtroom trial. Cables and wires for country watched the The right of the accused to a camera equipment snaked Simpson trial through a public trial dates to English across the courtroom floor, single, stationary camera in- common law. In the United while microphone booms side the courtroom and States, as far back as 1807, loomed over the jury box, viewed proceedings even the Supreme Court dealt judge’s bench and counsel the jury did not see. Some

with the problem of select- tables. In a 5-4 decision, the argued that the outcome of

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the case was unfairly influ- quired by a special law covery materials to prevent enced by the obvious pres- passed by Congress to “annoyance, embarrass- ence of the media, while loosen up on his restrictions ment, oppression or undue others praised the public on access to the trial for the burden or expense” but nature of the trial and the bombing victims and their only after a finding of public discussion of the is- families. “good cause.” Most states sues it raised. Columnist Moreover, the highest have similar or identical Nat Hentoff, for instance, court in the land, the U.S. rules of civil procedure. wrote: “For weeks, I was as- Supreme Court, continues Only three states—Texas, tonished—and pleased—to to forbid camera access at its Florida and North Caro- listen to arguments about oral arguments. Perhaps Jus- lina—have adopted rules the constitutional limits to tice Souter best summed up more protective of the search and seizure in bars, the majority of his col- public’s interest in discovery on stoops of buildings on leagues’ attitude about cam- material filed in civil cases. my street and in my house. eras in the Supreme Court: A significant test of these Many of those involved in “The day you see a camera rules is taking place with re- the discussions knew noth- coming into our courtroom, gard to the current legal ing about the Fourth it’s going to roll over my maneuvers involving the to- Amendment beforehand.”7 dead body.”9 bacco industry and its ad- 37 In terms of press free- versaries. In March 1997 dom, however, the most sig- Press access to one of the smaller cigarette nificant consequence of the civil-court proceedings manufacturers, Liggett Simpson case was that it Although the press and pub- Group Inc., reached a settle- made many judges increas- lic are more attracted to sen- ment with the attorneys ingly inclined to close their sational criminal trials, the general of 22 states that had courtrooms to television public is more likely to be sued tobacco companies to coverage. Because no abso- directly affected by civil- seek compensation for bil- lute First Amendment right court cases. This makes re- lions of dollars in annual exists with regard to tele- strictions on press access to costs for treatment of Med- vised courtroom proceed- civil proceedings particu- icaid recipients with smok- ings, television coverage larly troubling. The Su- ing-related diseases. As part usually remains up to the preme Court has never de- of the settlement, Liggett discretion of the presiding cided whether the public agreed to turn over thou- judge. Not all judges value has a First Amendment sands of pages of internal the benefits of a televised right of access to civil pro- papers that dated back to trial to the same extent. In ceedings, yet many federal the 1950s and reportedly Simpson’s subsequent and state courts have held showed that the tobacco in- wrongful-death civil trial, that civil court cases are as- dustry had obscured poten- for instance, Judge Hiroshi sumed to be public. tially damaging informa- Fujisaki issued an order for- The rules concerning tion. Lawyers for the other bidding cameras and other civil-court documents and cigarette makers immedi- electronic recording devices; discovery materials are ately went to court in he also imposed a broad gag much less clear. Civil-proce- Florida to try to block the order on trial participants.8 dure rules allow parties to release of those documents A federal judge in Denver get an order to place docu- to the public. However, in presiding over the trial of ments under seal and per- April, Judge Harold J. Oklahoma City bomber mit federal courts to issue Cohen of the Palm Beach

Timothy McVeigh was re- protective orders sealing dis- County District Court said

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that the documents would paragraphs could not be Defective gas tanks. be sealed for just one week, disclosed.12 More than 500 people died to give tobacco industry after Ford Pintos caught fire lawyers time to appeal his Out-of-court settlements because of defective gas decision.10 Subsequently, in- often inaccessible tanks. It was subsequently dustry attempts to resist dis- In criminal cases, the terms revealed that the company closure pressed on, in the of a sentence or plea are was settling death claims face of requests for informa- routinely available to the under secrecy agreements in tion from state attorneys public. By contrast, when order to conceal the general and Congress.11 civil cases settle out of court, vehicle’s defect. Similarly, Access to court docu- few people witness the re- General Motors kept records ments also can be an issue sults. Although these settle- of unsafe fuel tanks secret in criminal cases. In 1996 ments are often between for years by entering into Mike Donoghue, a reporter private parties, they take confidential settlements, re- for The Burlington (Vt.) Free place in a public-supported questing protective orders, Press, was denied access to venue and their outcomes or keeping entire lawsuits affidavits filed by the U.S. often affect the public more filed under seal. Agriculture Department to than we realize. In civil Silicone breast im- 38 support raids of a meat- cases involving defective plants. Dangers of silicone packing plant in Middle- products and medical mal- breast implants were hidden bury, Vt., suspected of vio- practice, defense attorneys for eight years by a protec- lating federal rules covering have used the out-of-court tive order that kept litiga- meat inspection. Dono- settlement as a means of tion documents confiden- ghue’s request for access to shielding their clients from tial. The existence of this information was first negative publicity. As Arthur company records that raised serious doubts about the safety of Dow Corning’s implants was first discovered The trend in many courts is to in late 1983 by a lawyer for Maria Stern, who sued Dow encourage secret negotiations and Corning for immune system disorders allegedly caused settlements in the interest of by her silicone implants. Be- cause of the court’s protec- efficiency and privacy tive order, the press could not report to the public the denied, at the urging of the Bryant, executive director of dangers of silicone implants U.S. attorney, who feared Trial Lawyers for Public Jus- until December 1991, when release of the information tice, observes, “Few people the FDA first began its in- would interfere with the realize the incredible impact vestigation into the dangers government’s criminal in- that secret settlements have of implants. Had the public vestigation. Donoghue on the public welfare.” Out- been informed of the dan- then petitioned the court of-court settlements, for ex- gers of breast implants at for release of the docu- ample, can involve defective the time of Stern’s lawsuit, ments. In February 1997, products that have caused silicone breast implants after reviewing the re- injury or death to hundreds might have been regulated quested material, the judge of people. A few high-pro- in 1985 or 1986.

decided that only a few file examples include:

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Exploding cigarette Gag orders and the press ganization from publishing lighters. In 1982, a New Press coverage of courtroom material it had obtained York City nurse was the vic- proceedings is often limited through legal methods. The tim of an allegedly defective by other court-imposed re- case concerned taped con- Bic cigarette lighter that ex- strictions. Judges frequently versations between deposed ploded in her face, causing issue gag orders in both Panamanian dictator permanent disfigurement. criminal and civil proceed- Manuel Noriega and several Bic had settled numerous ings to prevent publicity people, including his attor- similar claims prior to this accident and routinely required the return of all discovery documents as a con- Direct judicial suppression of the dition of settlement. Defective televisions. press remains infrequent, but courts Three children died in 1983 in a fire blamed on a defec- have found different ways to limit the tive Zenith television set. During subsequent litiga- media’s reporting to the public. tion, it was discovered that 39 more than 100 cases had from interfering with the neys, while Noriega was in been secretly settled involv- Sixth Amendment right to a prison awaiting trial. Prison ing fires caused by Zenith fair trial. Through the years, officials had taped the con- sets. two forms of gag orders versations, and Cable News have been used by the Network obtained them le- These are just a small por- courts: orders restricting gally. Noriega’s attorneys re- tion of countless instances what the media can print quested a temporary re- of civil-case information be- and orders restricting com- straining order barring CNN ing shielded from public munication between trial from broadcasting excerpts scrutiny. Although there is participants and the media. from the tapes, and the Su- ample evidence of the po- In 1976 the Supreme preme Court subsequently tential harm to the public Court affirmed the media’s refused to void that order. caused by secret settlements, right to publish information While awaiting the results little is being done to cor- concerning judicial proceed- of an appeal of the gag or- rect this problem. The trend ings. In Nebraska Press Asso- der, CNN aired the tapes. in many courts is to encour- ciation v. Stuart,13 the court The network’s decision to age secret negotiations and effectively prohibited direct broadcast the tapes resulted settlements in the interest judicial suppression of main a criminal contempt con- of efficiency and privacy. terial that the press may viction against CNN four However, doing so erects publish concerning a trial. years later. As part of CNN’s barriers to the press and Although the court said the penalty, the network was thereby keeps the people in press has a presumptive forced to broadcast a court- the dark about cases that right to report events of a approved apology to the could ultimately affect their trial, its ruling did not open trial judge and reimburse health, their safety and the courthouse doors com- the government $85,000 in their lives. pletely for the press. legal fees. In another case, the Su- Notwithstanding the preme Court refused to lift a CNN decision, direct judi-

gag order barring a news or- cial suppression of the press

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remains infrequent, because amendment rights. Too of- Branzburg established a orders preventing the publi- ten, however, the scales are three-part balancing test for cation of court proceedings tipped against the press, determining when a jour- are usually found unconsti- and, consequently, the nalist could be required to tutional on appeal. But public’s right to know. testify. These three parts are: courts have found different (1) whether a journalist ways to limit the media’s re- Court subpoenas knows the source of the in- porting to the public about of press information formation being sought by a court proceedings. Court-initiated restrictions party; (2) whether there is Judges also respond to on freedom of the press can no other source of the infor- trial publicity by issuing gag sometimes reach directly mation; and (3) whether orders directed at the extra- into the newsroom. In nu- there is a compelling need judicial speech of trial par- merous cases, courts have for the material. Additional ticipants: defendants, de- compelled journalists to re- protection for journalists fense attorneys, prosecutors, veal confidential sources of has come from shield laws jurors, witnesses and police information and have is- enacted in more than two officers. A typical trial-par- sued subpoenas allowing dozen states. ticipant gag order will re- police to search newsrooms Despite the presence of 40 strict the right of partici- for evidence related to the these theoretical protec- pants to communicate with investigation or prosecution tions, a study by the Report- the press about the trial. of a criminal offense. ers Committee for Freedom Parties to a proceeding usu- The Supreme Court, in of the Press found that ally request such an order, the 1972 landmark case of 52.1% of all news organiza- but judges may also issue a Branzburg v. Hayes,14 ruled tions surveyed had been trial-participant gag order that reporters have no First subpoenaed during 1993. In on their own initiative. Amendment right to refuse addition, newsrooms con- Gagging the speech of to testify and answer all tinue to be searched for evi- trial participants affects First questions posed by a grand dence of crimes. The power Amendment rights in two jury. A reporter, therefore, of police to conduct such ways. First, and most obvi- may be compelled to testify searches was enhanced by a ous, the silencing of trial by a court through the use 1996 amendment to the participants is a prior re- of a subpoena. Following Privacy Protection Act that straint on the right of free Branzburg, the Supreme allowed government offi- speech. But these gag orders Court held that a warrant cials to search newsrooms if also frustrate the media’s may be issued to search the search was related to al- ability to gather informa- newsrooms if evidence of a leged child pornography tion about a trial. Through crime is likely to be found. and child-exploitation of- such an indirect order, a Recognizing the damag- fenses.15 court may infringe on the ing effects that these rulings Often, in important rights of a free press. Be- could have on freedom of criminal proceedings, courts cause press coverage of a the press, Congress passed will find that the public in- highly publicized trial is po- the Privacy Protection Act terest is served by compel- tentially prejudicial to par- of 1980, which prevented ling a reporter to testify. Re- ticipants, determining the government officials from porters are likely to receive level of communication be- searching newsrooms for qualified constitutional tween participants and the “work product” or “docu- privilege in cases where media requires a delicate mentary materials.” More- they are not a party, but in

balancing of First and Sixth over, court rulings following libel cases, reporters often

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JOURNALISTS IN JAIL A list of reporters jailed or fined during the 1990s for refusing to testify; compiled by the Reporters Committee for Freedom of the Press: 1996, David Kidwell, Palm Beach County, Fla., Miami Herald 1990, Brian Karem, San Antonio, Texas reporter Subpoenaed by defense and prosecution; refused to reveal names of Found in criminal contempt, sentenced to 70 days for refusing to testify individuals who arranged jailhouse interview. Jailed for 13 days. Released for prosecution about jailhouse interview. Kidwell served 14 days before when sources came forward. being released on own recognizance after filing federal habeas corpus petition. 1990, Libby Avery, Corpus Christi, Texas, newspaper Subpoenaed for information about jailhouse interview. Jailed over Some lengthy imprisonments of previous years in- weekend; released when judge was convinced she would never reveal her cluded: source. 1978, Myron Farber, New York City 1990, Tim Roche, Stuart, Fla., newspaper Served 40 days in jail when he refused to reveal sources in criminal trial. Subpoenaed to reveal source for leaked court order that was supposed to have been sealed. Jailed briefly, released pending appeal. Later sentenced 1972, William Farr, Los Angeles to 30 days for criminal contempt. Served 18 days in 1993 and was released. Jailed for 46 days, for refusing to reveal sources in criminal proceedings. 41 1991, Four reporters in South Carolina Fines imposed since 1990 on journalists found in Jailed for eight hours; released for appeal, which they lost, but trial was contempt for protecting sources or unpublished infor- over. Court sought unpublished conversations with state senator on trial for mation: corruption.

1991, Felix Sanchez and James Campbell, Houston, newspaper 1991—$500 (each) against James Campbell of Houston Chronicle and Locked in judge’s chambers for several hours; had refused to stand in back Felix Sanchez of Houston Post for refusing to identify sources who might of courtroom and identify possible eyewitnesses to crime. Appeal successful attend criminal trial; federal district judge reversed. through habeas corpus petition. 1992—$2,000 per day, plus $4,000 in government’s legal fees, against 1994, Lisa Abraham, Warren, Ohio, newspaper Susan Smallheer and Rutland (Vt.) Herald. Sought interview with prison Jailed from Jan. 19 to Feb. 10, for refusing to testify before a state grand escapee. State high court ruled prospective contempt fines and attorney jury about jailhouse interview. fees were improper.

1996, Bruce Anderson, editor of California newspaper 1996—$500 ($250 per day for 2 days) against Minnesota Daily, a Found in civil contempt, jailed for more than a week for refusing to turn university newspaper, for refusing to turn over photos. over original letter to editor received from prisoner. After a week, he tried to turn over letter, but judge refused to believe it was original because it 1996—$500 against David Kidwell of Miami Herald for criminal was typed. After another week, judge finally accepted the typewritten letter contempt, with 70-day sentence for failing to testify for prosecution

as the original. about jailhouse interview.

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are compelled to reveal part of a community is an- ment is that journalists sources in order to prove nounced in the first word of should be more connected that their reporting was ac- the Declaration of Indepen- to their communities and curate. The Reporters Com- dence: “We hold these need to do a better job of re- mittee for Freedom of the truths to be self-evident.” sponding to the public’s Press publishes a growing The nature of this commu- concerns and interests in reporting on public life. Among the questions raised by the advocates of Efforts by people within the news the new public/civic/community journalism is the industry to address simple questions role of money, especially from non-news sources outside the community, in how about changes in the relationship fully the local press (print or electronic) takes on its task between journalism and the public of informing the public. J. Herbert Altschull, a veteran 42 are timely and important newsman who has worked in the U.S. and Western Eu- list of reporters recently nity has become clearer rope, writes: “Community jailed for refusing to testify through journalism practice journalism demands put- in court. and jurisprudence involving ting the public interest Some lawyers have found the First Amendment over ahead of the maximization ways to do an end-run the last 200 years. The print of profit.”16 Merritt laments around these legislative pro- press generally has had great what he terms journalists’ tection, as well. For in- latitude to write, publish “congenital defensive stance, instead of requesting and distribute what it crouch,” which limits their pictures of evidence of a pleased. Assembling, speak- ability to see their role in crime from photojournal- ing and writing are activities public life and to respond to ists, lawyers will compel on which the press and citi- serious criticism.17 them to testify about what zen participation are based. Many journalists and they saw. This method can In the late 1980s, some journalism groups also have be used to invoke an eye- journalists and academics launched initiatives to in- witness exemption to state concluded that the press crease public trust in the shield laws and federal legis- was contributing to media by improving the lation. democracy’s failing health. media’s accountability and They took the lead in devel- responsibility. Some, like

oping what is called public Mike Wallace of CBS’s “60

○○○○○○○○○○○○○○○ Public journalism: journalism, also referred to Minutes,” have called for a Press heeds critics as civic journalism or com- resurrection of a national munity journalism. Pio- news council to monitor the Since the early days of the neers in this movement in- press. nation, journalism has cluded Jay Rosen of New Such efforts by people helped shape the way York University and Davis within the news industry to Americans think about com- “Buzz” Merritt, editor of The address simple questions munity and public life. A Wichita (Kan.) Eagle. A pri- about changes in the rela-

sense of Americans’ being mary tenet of this move- tionship between journal-

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ism and the public are gathering in Cuba. Section action and continue, as we timely and important to 14 of the law establishes have been doing for several preserving the central role conditions for an exchange years, to press the Cubans of the press. In addition to of news bureaus between for their approval.”19 the widespread public criti- the two countries, but it When interviewed for cisms being heard about the stipulates that the exchange this report, Clara David, an industry, the press is con- be “fully reciprocal” and official in the licensing divi- tending with expanding that only “fully accredited sion of the Office of Foreign competition from a variety journalists regularly em- Assets Control at the Trea- of sources, including the ployed by news gathering sury Department, said that Internet, and shrinking organizations” can travel to the federal government was numbers of readers and Cuba under this subsection. not licensing journalists. viewers. In other words, the law cre- “We are licensing the right ated a system under which to do business transactions

the federal government on Cuban soil.”20 This dis-

○○○○○○○○○○○○○○○ Press activities in could decide which news tinction is not reassuring to ‘enemy’ countries organizations would be au- press advocates. The mere thorized to open bureaus in fact that Helms-Burton re- In 1961 the U.S. and Cuba Cuba. quires news organizations to 43 severed relations. Since Early in 1997, the apply to the government to 1969, when The Associated Clinton administration carry out an aspect of their Press was expelled, until granted one-year licenses to work sets a disturbing prece- 1997, no U.S. press outlet 10 news organizations to dent—especially for the had a permanent base in open such bureaus. These print media, which have Cuba. Moreover, because of included: CNN, ABC, CBS, traditionally been entirely the U.S. economic embargo, Univision, The Miami Her- free from any kind of gov- U.S. journalists who wanted to cover stories in Cuba had to do so by visiting the country briefly and then re- The mere fact that Helms-Burton turning to their bases in Mi- ami, Mexico City or else- requires news organizations to apply to where. This policy enabled the U.S. government to the government to carry out an aspect claim that it was not interfering with press freedom, of their work sets a disturbing precedent. while at the same time pre- ald, Dow Jones News Ser- ernment regulation. Grant- venting news organizations vices, Cuba Info, the Chi- ing licenses for only one from contributing to the cago Tribune and the Fort year raises the possibility Cuban economy by operat- Lauderdale (Fla.) Sun-Senti- that government officials ing a permanent office in a nel. So far, only CNN has would link license-renewal country that the U.S. gov- been allowed by the Cuban decisions to an evaluation ernment wished to sanc- government to open an of- of how news organizations tion. fice and begin reporting. did their reporting from In 1996 Congress passed Significantly, Louis Cuba. the Helms-Burton Act,18 Boccardi, AP president and In his landmark book, which adopted an entirely chief executive officer, said, Technologies of Freedom, the

different approach to news- “We welcome the American late Ithiel de Sola Pool

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warned: “Having print as an limited access to military known for years about island of freedom might be operations and information chemical weapons in Iraq, assurance enough against that they were supposed to raised criticisms and accusa- total conformity to author- share with their colleagues, tions of a cover-up. ity. But the situation is not who were kept even further The possibility of real- stable.”21 The Helms-Burton from the action. time reporting in the future Act increases that instability During the Gulf War, had made the military rec- by introducing a new form pool members were re- ognize that it would have to of press regulation linked to quired to remain with es- issue new press-pool guide- ideological and foreign- cort officers at all times. Ad- lines for future military con- policy considerations. ditional ground rules listed flicts. However, it was un- 10 categories of information clear how either the press or

designated “not releas- the public would react. In

○○○○○○○○○○○○○○○ Military press pools able”—a list that included 1991 nine news organiza- clearly sensitive informa- tions and four journalists During the Vietnam War, re- tion, such as the number of filed a lawsuit demanding porters had virtually unre- troops and aircraft and fu- an injunction to prevent stricted access to military ture operations, as well as the military from enforcing 44 operations and were thus less-sensitive material such its ground rules, and Agence able to provide the U.S. as the names and home- France-Presse—a French public with a candid ac- towns of personnel inter- news service with an office count of a war that ended viewed, except for the unit in New York—filed another. with America’s first defeat in commander.22 Reports sub- The two suits maintained a major foreign conflict. In ject to review by military of- that the press had a right to the wake of Vietnam, mili- ficials and relayed by pool unlimited access to an arena tary and government offi- journalists were the primary of American military con- cials took steps to ensure news accounts of the inva- flict. The Pentagon argued that this public relations de- sion available to the public. that the First Amendment bacle—from their point of Shortly after the war does not bar the govern- view—was not repeated. ended, some of the infor- ment from restricting access The determination to avoid mation that had been pro- to combat. The issue could a repetition of the Vietnam vided was found to be inac- not be settled before the press problem was demon- curate or misleading by war ended. Federal Judge strated most clearly during omission. By 1997, the cred- Leonard Sands, who re- the Reagan and Bush ad- ibility of the Department of leased a decision in the case ministrations. Strict regula- Defense could hardly have in April 1991, concluded tions covering news-media been more suspect. After that because the war was activities were put into ef- two years of denying the ex- over and the press restric- fect during the invasion of posure of American soldiers tions were no longer active, Grenada in 1983, the to Iraqi chemical weaponry, “prudence dictates that a fi- Panama military operations the Pentagon admitted nal determination of the in 1989, and the Persian there had been exposure of important Constitutional is- Gulf War, beginning in the soldiers to small quantities sues at stake be left for an- summer of 1990. Coverage of chemical agents. The loss other day when the contro- was controlled most effec- of files and delay in the re- versy is more sharply tively through the use of lease of information by the focused.”23 press pools—small numbers Pentagon, as well as disclo- To a great extent, it will

of reporters who were given sures by the CIA that it had be up to the public to de-

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mand more complete cover- litical demonstrations and age the next time American student media. CENSORSHIP OF STUDENT MEDIA: soldiers engage in military The most significant of ONE HIGH SCHOOL’S STORY conflict. Much of the public these was the 1988 Hazel- seemed satisfied with con- wood ruling, in which the n the fall of 1996, a group of students at Montgomery Blair trolled news during the Per- Supreme Court upheld an High School in Silver Spring, Md., produced a television sian Gulf War, yet dissatis- action by a Missouri high Ishow called “Shades of Grey.” A taped debate about same- faction with what was not school principal who deleted sex marriage, the program consisted of a four-guest panel, disclosed during the war has articles about teen-age preg- equally divided according to point of view. Ordinarily, the pro- increased since then. Ac- nancy and divorce from a gram would have aired live on a local government education cording to Jane Kirtley of student newspaper. This rul- channel, but a last-minute decision was made by school admin- the Reporters Committee ing encompassed all “school- istrators to drop the live broadcast, reasoning that this topic for Freedom of the Press, sponsored non-forum stu- had no place on a cable channel devoted primarily to broad- “The military has become dent activity that involves casting school board meetings. inexorably committed to a student expression” and, in censorship scheme.” The essence, put a cap on the The students were advised, nevertheless, to continue with the clash between the military’s First Amendment rights of taping of the show. They did so and submitted the tape to penchant for secrecy and students.25 Censorship by school authorities, who refused to air it because of what they the demands of a free press, the principal was found to considered its controversial content. The student producers of 45 which is essential to Ameri- be acceptable, so long as it the show then appealed the school system’s action to the can democracy, was ana- was done in a reasonable Board of Education and argued that they had been censored lyzed in depth in America’s manner and served legiti- in violation of state and federal laws governing student ex- Team: The Odd Couple, a Re- mate pedagogical objectives. pression. port on the Relationship be- Mark Goodman, execu- tween the Media and the Mili- tive director of the Student After the students met with a hearing officer in December, the tary (published by The Press Law Center, believes officer issued a report citing reasons why the show should not Freedom Forum in 1995). that there is a “trickle up” air. Oddly, the content of the program was not the main focus effect of Hazelwood. Politi- of his report. Instead, the officer called the programs’ techni-

cal officials who used to cal qualities into question.

○○○○○○○○○○○○○○○ Student journalism handle complaints about unpopular actions by point- In April of 1997, the Montgomery County Board of Education There has long been tension ing to the Constitution as a voted to allow the production to air. School officials denied between school officials and guarantor of free expression that censorship had occurred, but they had already formed a students over open and free now find it necessary to committee headed by Superintendent Paul Vance to recom- expression. In 1969, the Su- concern themselves with mend new guidelines for programming that appeared on the preme Court said students popular sentiment concern- channel. have First Amendment ing school publications. rights everywhere, includ- Schools that never had a ing in the public schools. problem with a student They “may not be confined press organization have an effect on how they view to the expression of senti- moved to assert editorial the role of the First Amend- ments that are officially ap- control. Even worse, accord- ment should they later be- proved.”24 However, a series ing to Goodman, “Students come journalists for com- of court rulings since have develop their idea of how mercial publications.” favored school restrictions government may interfere Students have found, in on disruptive and “inde- with their First Amendment some situations, that state cent” student remarks, cam- rights while in high school. freedom of information and

pus campaign literature, po- This may ultimately have open-records laws can be re-

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○○○○○○○○○○○○○○○ lied on in their journalism Conclusion First Amendment, which projects. In 1997 the Ohio has reached alarming lev- Supreme Court ordered Mi- In the second half of the els.” Recent surveys have ami University to release 1990s, freedom of the press shown flagging support for copies of records from its remains alive in the United press freedoms. A national University Disciplinary States, but it can hardly be survey conducted for this Board to the student news- said to be thriving. Huge li- report found that only 5% paper, The Miami Student,26 bel awards and other forms of Americans put freedom of the press on their list of rights important to society. Only 11 percent could Huge libel awards and other name freedom of the press as one of the five rights forms of litigation are weakening guaranteed by the First Amendment. Nearly four in the inclination of the press to 10 believe that the press has too much freedom. (See carry out its watchdog function. Chapter 6.) 46 Certainly, the press itself after the university had re- of litigation are weakening bears some responsibility fused, saying that a federal the inclination of the press for these attitudes. A ten- law27 created an exception to carry out its watchdog dency toward sensational- to the Ohio Public Records function. Courts often con- ism, a rush to report unsub- Act. The court disagreed, sider press coverage to be in- stantiated statements and emphasizing the impor- imical to the goal of fair tri- other forms of sloppy re- tance of campus crime in- als. The federal government porting continue to weaken formation to students and and the Pentagon want to the relationship between their families and noting control what journalists re- the press and the public. that the purpose of the port during military con- The media should be—and Ohio Public Records law is flicts. The country’s young- in fact routinely are—taken “to encourage the free flow est journalists—those still in to task for their shortcom- of information where it is school—often are denied ings and lack of account- not prohibited by law.”28 the very rights they are ability. Yet it should be kept Six states—Arkansas, taught about in civics in mind that freedom of the California, Colorado, Iowa, classes. press does not require that Kansas and Massachusetts— To make matters worse, the press carry out its duties have enacted laws that pro- the American public seems flawlessly. Intimidating re- tect the free-expression to have developed a suspi- porters and editors with rights of students in differ- cion of the press that breeds lawsuits and government re- ent ways. The discrepancies tolerance of disturbing de- strictions will not improve that exist among states velopments such as the the quality of journalism. point to a need for a federal Food Lion case. According Such actions will serve only law protecting the rights of to Ed Fouhy, who has 30 to make the press more the student press. years of experience in timid—which in the end broadcast journalism, “The will work to the detriment deepest wound is the ero- of everyone in a democratic

sion of public support of the society. •

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1 Alien and Sedition Act, Encyclope- 11 Barry Meier, “New Debate in To- 20 Clara David, Office of Foreign As- dia Britannica, Vol. 1, p. 270, bacco Deal: Forcing Disclosure of sets Control, Treasury Depart- 1995. Secret Files,” The New York Times, ment, telephone interview, March 2 Donna Demac, Keeping America July 20, 1997, p. 13. 14, 1997. Uninformed (New York: Pilgrim 12 Mike Donoghue, “Packing Docu- 21 Ithiel de Sola Pool, Technologies of Press, 1984); Susan Tolchin and ments Released: Judge Orders Affi- Freedom (Cambridge, Mass.: Martin Tolchin, Dismantling davits in Slaughterhouse Investi- Harvard University Press, 1983), p. America: The Rush to Deregulate gations Be Made Public,” The 233. (Boston: Houghton Mifflin, 1983). Burlington (Vt.) Free Press, Feb. 9, 22 This Persian Gulf press pool infor- 3 “Study says libel awards rise in 1997, p. 1B; Mike Donoghue, mation was taken from Jane ’96,” Editor & Publisher, March 8, “U.S. Judge Sides With Public’s Kirtley, “The Eye of the Sand- 1997, p. 50. Right to Know,” The Burlington storm: The Erosion of First 4 “ABC appeals $5.5M Food Lion (Vt.) Free Press, Feb. 9, 1997, p. 8B. Amendment Principles in War- judgment,” by Peter Johnson, USA 13 Nebraska Press Association v. time,” Government Information TODAY, June 25, 1997. Stuart, 427 U.S. 539 (1979). Quarterly, Vol. 9/No. 4 (1992), p. 5 James Boylan, “Punishing the 14 Branzburg v. Hayes, 408 U.S. 665 43. Press,” Columbia Journalism Review, (1972). 23 The Nation et al. v. the United March-April, 1997, p. 25. 15 Child Pornography Protection States, 762 F. Supp. 1558, South- 6 Estes v. Texas, 381 U.S. 532 Act, 18 USCA Section 2251 nt. ern District of New York (1991). (1965). 16 J. Herbert Altschull, “A Crisis of 24 Tinker v. Des Moines Independent 7 Nat Hentoff, “The High Court’s Conscience: Is Community Jour- Community School District, 89 S. Selfish Secrecy,” The Washington nalism the Answer?,” Mixed News: Ct. 733, 739 (1969). Post, March 15, 1997, p. A23. The Public/Civic/Communitarian 25 Hazelwood School District v. 8 In an interesting circumvention of Journalism Debate, Jay Black, ed. Kuhlmeier, 108 S. Ct. 562 (1988). 47 the rule banning cameras from (Mahwah, N.J.: Lawrence Erlbaum 26 The Miami Student et al. v. Miami Simpson’s subsequent wrongful- Associates, Inc. 1997), p. 151. University et al., Mandamus to death civil trial, the “E! Channel,” 17 Davis “Buzz” Merritt, Public Jour- compel Miami University to pro- using look-alike actors, broadcast nalism & Public Life: Why Telling vide records of student disciplin- reenactments of the trial based on the News Is Not Enough (Hillsdale, ary proceedings held before the trial transcripts. N.J.: Lawrence Erlbaum Associates, University Disciplinary Board to 9 “High Court TV,” by Tim O’Brien, Inc., 1995), p. 24. the university’s student newspa- The New York Times, Jan. 6, 1997, 18 Cuban Liberty and Democratic per, Ohio Supreme Court, July 9, p. A17. Solidarity Act of 1996, 22 U.S.C. 1997. 10 Fort Lauderdale (Fla.) Sun-Sentinel, Section 6021 et seq. 27 Family Educational Rights and Pri- April 19, 1997. 19 AP Worldstream (financial pages), vacy Act (Section 1232g(b), Title Feb. 13, 1997. 20, U.S. Code). 28 Ohio Public Records Act (R.C.

149.43).

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Freedom of Religion

he First Amendment colonials. Yet it was not un- guarantee of religious til after the Revolution that People T freedom has been a the principle of religious binding force in this coun- freedom was firmly estab- try for more than two cen- lished. The turning point undermining turies. It is a key element of was the successful crusade the boldest political experi- by Thomas Jefferson and religious ment the world has ever James Madison to get Vir- known. Today, however, ginia to adopt the Statute of liberty in- there are disturbing signs in Religious Liberty in 1786. 49 the United States that reli- That law prohibited a state clude both gious liberty—the freedom tax in support of all Chris- to believe or not to believe tian churches in Virginia, those who and to practice one’s faith but it also declared: openly and freely without That no man shall be seek to estab- government interference— compelled to frequent or is in danger. People under- support any religious lish in law a mining religious liberty in- worship, place, or ministry clude both those who seek whatsoever, nor shall be “Christian to establish in law a “Chris- enforced, restrained, tian America” and those molested, or burdened in America” who seek to exclude religion his body or goods, nor 3from public life entirely. and those shall otherwise suffer on Many of this nation’s account of his religious early settlers came to this opinions or belief. ...1 who seek country to escape laws that compelled them to support The Virginia statute helped to exclude government-favored to create a climate favoring churches. Yet, before the religious freedom that en- religion from American Revolution, in couraged Madison to in- many parts of the colonies clude a similar provision in public life residents were required to the Bill of Rights. Madison support established opposed every form and de- entirely. churches with their tax gree of official relation be- money, and religious dis- tween religion and civil au- senters were punished. thority. For him religion was These practices generated a matter of individual con- strong resentment among science beyond the scope of

many of the freedom-loving civil power either to restrain

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or support. Of particular rel- beliefs on society and thus parochial school campuses evance to our time, Madison undermine the secular tradi- does not as a matter of law viewed state aid and taxa- tion in institutions such as have the impermissible ef- tion as no less obnoxious to the public schools. Samuel fect of advancing religion the pursuit of religious free- Rabinove, retired legal di- through indoctrination.” dom than other forms of rector of the American Jew- On the other side are state interference. ish Committee who has a those who complain that this society allows insufficient attention, and accords no priority, to religious be- Religion has become a source of divisiveness liefs, especially in instruction and textbooks. Oliver as people spar and sometimes resort to vio- Thomas, a lawyer who works for a number of dif- lence over issues of conscience and belief. ferent church organizations, says that “there is a bias Because of Madison, strict separationist view of against religion in academia these sentiments found a se- the First Amendment’s es- and the media, although it 50 cure place as the first free- tablishment clause, has is not a conscious hostility.” doms written into the First written that “[there] has William Miller of the Uni- Amendment—as the estab- been a gradual but persis- versity of Virginia has ob- lishment clause, requiring tent pattern of erosion of served, “The successive the government to remain the separation principle as, waves of American intelli- neutral concerning religion, in case after case, the Court gentsia keep expecting reli- and the free-exercise clause, has upheld various depar- gion to have vanished. They guaranteeing the right of all tures from it.”2 write whole histories of citizens to reach, hold, exer- The 1997 Supreme Court American life and spirit that cise or change beliefs with- decision in Agostini v. skimp the religious element out government interfer- Felton,3 which overturned a in the imagination of the ence. 1985 ruling in Aguilar v. American people.”5 Felton4 allowing public The situation is made

schools to provide remedial more complicated by the

○○○○○○○○○○○○○○○ Religion and help to parochial school stu- fact that the religious com- society in the 1990s dents outside the school, is position of the United a further indication that the States is becoming more di- In our time, religion has be- court’s position regarding verse than ever. Along with come a source of divisive- the establishment clause is many groups of Christians ness as people spar and changing. By a narrow 5-4 and Jews, this country is sometimes resort to violence vote, the court held that now home to growing num- over issues of conscience publicly paid teachers can bers of Muslims, Hindus, and belief like abortion, go into parochial schools to Buddhists, and other school prayer and public provide instruction without belivers, as well as nonbe- school curricula. On the one running afoul of the prin- lievers. side are those who think ciple of separation of church that religious fundamental- and state. Justice Sandra Waco: A test of tolerance ists and organizations such Day O’Connor wrote for the Religious diversity was made as the Christian Coalition majority, “Placing full-time possible by the First Amend-

are trying to impose their governmental employees on ment. Now, ironically, reli-

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gious diversity makes the able light. The Waco tragedy challenge ever for the prin- First Amendment more nec- has been used by militia ciple of religious freedom in essary and urgent than at and other groups to bolster this country. any time in our history. The their challenges to the le-

showdown between federal gitimacy of the federal gov-

○○○○○○○○○○○○○○○ authorities and a group ernment—and as justifica- Religion and called the Branch Davidians tion for the bombing of the the public schools in Waco, Texas, in 1993 was federal building in Okla- a dramatic demonstration of homa City in 1995. One of the critical arenas for how difficult it can be to What is significant in the issue of religious free- meet the challenges of ex- this context is what Waco dom in this country has panding diversity in the demonstrated about the fed- been public education. It is nation’s religious life and eral government’s attitude in public schools that the how important it is for the toward religion, or at least conflict between private re- government to have a better the religious beliefs of a ligious beliefs and the tradi- understanding of religious fringe group. Federal au- tion of public secularism belief along the entire spec- thorities did little or noth- plays out with the most fer- trum. The Branch Davidians ing to try to understand the vor, given that this is where at Waco, led by David beliefs of the Branch the attitudes of the next 51 Koresh, were a cult-like Davidians and Koresh, ac- generation of American splinter group of a larger cording to some analyses of adults are being shaped. group that had separated Waco. As Nancy Ammer- The issue of religion in from the Seventh-Day man, who teaches the soci- public schools has sparked a Adventist church over bibli- ology of religion at the Can- variety of controversies cal interpretations. dler School of Theology, throughout our history. In Saying that the group Emory University, noted: recent decades, two of the was heavily armed and dan- “[Federal authorities] should more contentious issues gerous, the FBI, the Bureau have understood the persua- have involved whether evo- of Alcohol, Tobacco and siveness of religious experi- lution or creationism Firearms and other agencies mentation in American his- should be given precedence laid siege to the Branch Davidian compound in Feb- ruary 1993. After 51 days, It is in public schools that the conflict between the authorities, citing reports of child abuse as their justification, attacked the private religious beliefs and the tradition of compound. A huge fire ig- nited and took the lives of public secularism plays out with the most fervor. 90 children and adults. Fed- eral officials denied respon- tory and the fundamental in teaching about the ori- sibility for the deaths, sug- right of groups like the gins of the human race and gesting that the fire may Davidians to practice their whether there is a place for have been set by the Branch religion.”7 prayer in public schools. Davidians themselves.6 Sub- The religious battles of Prayer remains a major con- sequent reports, including the late 20th century and troversy. The proponents of some from federal agencies, the increasing diversity of creationism, after losing in presented government ac- religious belief together court,8 have refocused their

tions in a much less favor- pose perhaps the greatest campaign to have creation-

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ism included in school cur- less, the court soon upheld supported a variety of reli- ricula, to have evolution two challenges to school gious liberty rights for stu- stricken and to make it fi- prayers in Pennsylvania and dents. For example, the Su- nancially easier for parents Maryland. The first in- preme Court has ruled that to send their children to volved review of a Pennsyl- public schools may display private religious schools. vania law that required the religious symbols in the That effort has given rise to reading of at least 10 verses classroom, as long as they the current debate over of the Bible at the start of are used as teaching aids on school vouchers. each school day; a Maryland a temporary basis as part of law called for Bible reading an academic program.10 The Prayer in public schools: or the recitation of the court also has said that Constant conflict Lord’s Prayer. schools may not forbid stu- Almighty God, When it became clear dents acting on their own we acknowledge our that the Supreme Court was from expressing their per- dependence on Thee and not going to budge from its sonal religious beliefs and beg Thy blessings upon us, position barring school- must give them the same our parents, out teachers, sponsored prayer, 25 state right to engage in religious and our country. legislatures adopted laws activity as students have to 52 providing for a “moment of engage in other activity. In The Supreme Court declared silence” at the beginning of 1995 President Clinton is- in 1962 that this school each school day. These state sued a directive concerning prayer—which had been en- statutes have led to a succes- religious liberty and the dorsed by the New York sion of Supreme Court deci- rights of students, and the State Board of Regents—was sions striking down laws importance of religion in state-sponsored establish- whose “sole purpose” was to the public schools, which ment of religion, in viola- foster prayer in public was distributed through the tion of the establishment schools. U.S. Department of Educa- clause of the First Amend- tion to public schools nationwide. In spite of the growing consensus about the current The Supreme Court has indicated in several state of the law, many public school administrators decisions over the last decade that teaching and teachers remain confused about what kinds of about religion in public schools is constitutional. religious expression are permissible in school. One ment.9 The issue of prayer Despite its strict stand egregious case occurred in in public schools has been against state-sponsored Virginia in 1989, when a causing political and social prayer in public schools, the public school principal brush fires ever since. Supreme Court has indi- barred a disabled 10-year- After the Engle v. Vitale cated in several decisions old child, Audrey Pearson, decision, some complained over the last decade that from reading her Bible dur- that the Supreme Court had teaching about religion in ing a 90-minute bus ride to removed God from the public schools is constitu- and from school. When classroom and that the rul- tional. In addition, a num- asked about this, Nicolette ing was anti-Christian and ber of Supreme Court and Rinaldo, the principal of

anti-American. Neverthe- lower court decisions have Dumfries Elementary

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School, told Audrey’s bers of Congress propose to Conference, citing such po- mother that she knew of a amend the Constitution tential negative effects, have rule somewhere that said and modify the First voiced their opposition to children couldn’t bring Amendment’s establish- such an amendment. They Bibles to school. Mrs. ment clause. Rep. Ernest and other opponents be- Pearson then sought help Istook Jr. (R-Okla.) has intro- lieve it amounts to no more from the Rutherford Insti- duced the Religious Free- than religious coercion and tute, which supports reli- dom Amendment, which he that the First Amendment, gious speech in several countries. Institute lawyers called the school and, Many public school administrators within days, Audrey was able to read her Bible on the and teachers remain confused about bus.11 Even more confusion ex- what kinds of religious expression are ists in the area of student- initiated prayer at gradua- permissible in school. tion ceremonies. The federal courts have not says is intended to address as is, fully protects student 53 settled on a definite stan- “a systematic campaign to religious liberties. dard for such activity. The strip religious symbols, ref- At the same time, state Fifth Circuit, which covers erences and heritage from legislators have continued Texas, Mississippi and Loui- the public stage.”12 Accord- to introduce school prayer siana, ruled in 1992 that ing to the ACLU, which amendments to state consti- graduation prayer is consti- strongly opposes Istook’s tutions. In West Virginia, tutional if students vote to measure, the Christian Coa- State Sen. Randy Schoon- do it, and the prayer is stu- lition has pledged $2 mil- over has proposed to amend dent-led, non-sectarian and lion to lobby Congress for the state constitution to al- non-proselytizing. However, passage of the bill. low two minutes of daily in 1996 the Third Circuit, The amendment’s real ef- voluntary prayer in public covering New Jersey, Dela- fect, according to the ACLU, schools. Opponents of the ware, Pennsylvania and the would be to allow govern- Schoonover bill are puzzled Virgin Islands, ruled that ment officials to make deci- by the necessity to include school prayer at graduation sions that favor particular voluntary school prayer in is unconstitutional because faiths over others. The the state constitution. Not- the ceremony remains a amendment also would ing that the First Amend- school-sponsored event. make it easier for public ment already largely pro- The Supreme Court let the funds to go to religious in- tects voluntary prayer in Fifth Circuit ruling stand stitutions through school public schools, Hilary Chiz, and has not yet ruled on vouchers and other pro- executive director of the graduation prayer. The grams. The amendment West Virginia Civil Liberties unique facts of graduation would thus pit religious Union, argues that “Sen. prayer cases are likely to groups against each other Schoonover’s proposal bring this issue before the for public dollars. Religious would make voluntary Supreme Court yet again. groups, including the Na- prayer mandatory.” Even if Seizing upon the current tional Council of Churches, they are enacted, these state confusion surrounding the American Jewish Con- measures face serious chal-

school prayer, some mem- gress and the Joint Baptist lenges in the courts. In

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to sit and “listen to the held the schools’ actions be- JUDGE’S ACTIONS prayers of their peers.”14 cause allowing access would TRIED IN COURT This ruling delivered an- create an “impermissible ap- other blow to supporters of pearance of official support 16 chool children are not the only ones caught in the student-initiated prayer and of religion.” Courts also was the second time in just feared that allowing access confusion over what the religion clauses in the a few months that a federal would excessively “en- First Amendment actually mean today. Judge Roy court had struck down a tangle” schools in religious SMoore of Gadsden, Ala., who opens court with prayer state statute designed to affairs. As a result of these by a Protestant minister and displays a hand-carved rep- permit student-initiated rulings, religious groups lica of the Ten Commandments in his courtroom, has prayer. The earlier law was were placed at a distinct dis- 15 been ordered to stop the prayers, but has appealed that in Mississippi and was al- advantage to secular groups most identical to the Ala- that were allowed to use the decision. State District Court Judge John Devine in Hous- bama statute. same facilities. ton, Texas, has put pictures of Abraham Lincoln and The actual effect of judi- Responding to these de- George Washington kneeling in prayer above his bench cial decisions like these can cisions, Congress passed the and five framed biblical passages over the jury box. be difficult to assess because Equal Access Act (EAA) of These two situations have clergy, local officials, at- of local and national politi- 1984 to ensure that student 54 torneys and laypeople questioning just how free judges cal developments that run religious groups would be counter to the judgment of on equal footing with secu- should be to express their religious beliefs in court. In the court. Alabama Gov. Fob lar groups. The act has with- Alabama, the ACLU sued Judge Moore for violating the James, who believes that the stood the scrutiny of the Su- establishment clause. The Houston case against Judge First Amendment allows ev- preme Court, which has Devine is being argued by three attorneys who them- ery American to pray ruled that allowing access to selves are theologians. “whenever and wherever” religious groups does not Legal experts have said that the issue raised in these he or she wants, declared violate the establishment that he disagreed with the clause because there is no cases is ripe for consideration by the Supreme Court, court’s ruling and let it be government endorsement which has not yet considered the display of religious known he would not advise of religion.17 Despite the art, such as the Ten Commandments, in the courtroom. Alabama residents to follow support of Congress and the the ruling, nor would he ad- courts, the EAA has had a From “Off the Wall?; Judges Defend Displays, but Critics Reply: Thou vise them not to follow it. limited effect on the firmly Shalt Not,” The Dallas Morning News, July 5, 1997. entrenched belief of some school officials and teachers March 1997 federal district Religious groups and that the First Amendment Judge Ira DeMent struck use of school facilities prohibits any form of reli- down an Alabama law re- Judges have become more gious expression on public quiring all school-related tolerant of the use of school school grounds. Students events to permit “non-sec- facilities for religious activi- are often surprised to learn tarian, non-proselytizing, ties that are not part of the that they have the right to student-initiated voluntary school’s curriculum. At one carry a Bible, wear a reli- prayer.”13 In the court’s time, schools concerned gious message on a T-shirt view, the law violated the with potential establish- and meet with other stu- establishment clause by cre- ment-clause violations dents to discuss their faith ating “excessive entangle- tended to bar student reli- on school grounds. The Su- ment” between the state gious groups from using preme Court also has ruled and religion, leaving some school facilities. Early court in Rosenberger v. University of

students with no choice but decisions on this issue up- Virginia that if a public uni-

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versity subsidizes other stu- at religious or private portion of teachers and student publications, it cannot schools. Voucher opponents dents. STATES exclude a religious maga- say proposals of this kind A Wisconsin state court WHERE zine. could result in large shifts of judge ruled that the inclu- VOUCHER resources away from public sion of religious schools in PROPOSALS School vouchers education—so much so that the voucher program vio- ARE FILED OR Many of the proponents of August Steinhilber, general lated the state constitution’s ANTICIPATED religion-oriented school in- counsel for the National As- provisions against taxpayer Arizona struction have turned their sociation of School Boards, support of religious institu- California attention from influencing has declared that “vouchers tions. Among Judge Paul Colorado public school curricula to could very well mean the Higginbotham’s concerns Connecticut helping like-minded parents dismantling of public edu- was that “millions of dollars get their children into pri- cation.”18 would be directed to reli- Florida vate religious schools. This There are other problems gious institutions that are Georgia brings the debate to the associated with voucher sys- pervasively sectarian with a Idaho tricky issue of money. Sup- tems. Test programs in Mil- clear mission to indoctri- Illinois porters of private schools ar- waukee and Cleveland have nate Wisconsin students Indiana gue that they should be able come under fire not only with their religious beliefs” Kansas to take the money that for violating the establish- and that the program “com- 55 would be used to educate ment clause of the First pels Wisconsin citizens to Maryland their children in public Amendment, but also for support schools with their Michigan schools and apply it to the encouraging fraud among tax dollars that proselytize Montana tuition charged by religious private schools competing students and attempt to in- New Jersey schools. This would be ac- for tax dollars. In Milwau- culcate them with beliefs New York complished by a system of kee two of the 17 schools contrary to their own.”19 Ohio vouchers. initially participating in the A Carnegie Foundation The resulting controversy state voucher program report on the Milwaukee ex- Oregon is not limited to the ques- closed after directors were periment found that the Pennsylvania tion of religious education; accused of creating phan- program had not resulted in South Carolina it is entangled with the tom “voucher students” to higher test scores and had South Dakota larger question of school get more public funding. lessened schools’ account- Tennessee choice. Some advocates of Entrepreneurs took advan- ability to parents. The Texas vouchers believe such a sys- tage of the infusion of tax Carnegie study found that tem should allow only par- dollars in private education “while most students and Vermont ents in neighborhoods with and established schools that parents participating in the Virginia sub-par public schools to failed almost as quickly as program say they are happy Washington send their children to better they appeared. A director of with their chosen schools, public schools in other ar- one failed Wisconsin an astonishing 40% of stu- eas. It’s not surprising that voucher school is currently dents who made the switch support for vouchers runs charged with criminal fraud to private schools did not high in minority communi- for exaggerating enrollment return in one year.” ties. figures. Some of the schools Wisconsin’s Safe and Af- The First Amendment participating in the Wiscon- fordable Schools Act of 1997 comes into play with those sin voucher program closed contains a clause that would voucher plans—including unexpectedly during the preempt state constitutional ones that have been tested school year, while others provisions that prohibit tax- in several states—that allow were unable to pay staff payer funds from being di-

parents to use public funds regularly and lost a large verted to religious institu-

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PUBLIC ASSISTANCE, FAITH AND THE CONSTITUTION

f every church in America just hired one family, the lic mandates say the church is being turned into a surro- welfare problem would go way down,” President gate of the government and that there are inadequate Clinton told 130 members of the clergy at an ecumeni- safeguards to prevent government from advancing a par- calI prayer breakfast at the White House in February 1997. ticular religion. “This would mark a sea change not only in how wel- At the same time, some religious groups worry that fare funds are administered but in church-state relations,” the provisions allowing them to discuss spiritual issues with said Derek Davis, professor at the Baptist-affiliated Baylor aid recipients are not unequivocal and that the federal University.* government could turn around and impose strict rules These comments are about a little-noticed section of against the practice. The Rev. Craig Localzo, pastor of the welfare legislation signed by President Clinton in 1996. Immanuel Baptist Church in Lexington, Ky., said in an in- It allows states that receive block grants from the federal terview, “Suppose a church received funding to provide government to contract directly with churches and reli- welfare recipients with transportation. In such a situation, gious organizations for the provision of assistance to the the state would have every right to ensure that the funds 56 poor. Participating churches are not required to remove went for buses.” But if it tried to prevent church person- religious symbols and are allowed to share church doc- nel from talking about church matters to riders on the trine with the people they are helping. bus, Localzo said, he would refuse the money. When asked Many church leaders and other critics have said that the about this scenario, Julie Segal, legislative counsel for new law will transform the relationship between church and Americans United for Separation of Church and State, told state. In addition to a loss in spiritual vitality, they say, a church a reporter that the bus riders “would be a government- could face unwanted state regulation. They argue that it vio- created captive audience for a religious institution—in violates the establishment prohibition by uniting church and lation of the First Amendment.”† state. Many church-affiliated groups provide social services Arguing for a return to the strict division between reli- for government agencies. Yet these entities are not actually gious and secular relief are people, such as the Rev. Earl churches, and, until now, it had been assumed that public Trent, who think the welfare legislation is likely to open funds are not to be used for proselytizing. up problems in several directions, including favoritism as Stephen Green, a lawyer at Americans United for the to which church will benefit most. “Many in the black com- Separation of Church and State, believes that the welfare munity believe the government has never been working bill “removes safeguards and authorizes religious institu- with their churches,” Trent said. “The most important thing tions to use public funds to administer government pro- is how people will interpret what people can do under the grams.” Critics wary of this blending of religious and pub- welfare bill.”‡

* “News Making Welfare Work,” Mike Brown, The Courier-Journal, Feb. 2, 1997. † id. ‡ Earl Trent, Interview, Nov. 4, 1996.

tions. The act would set up constitutionality of this bill past rulings the Supreme a five-year voucher demon- and of the current voucher Court has invalidated every stration program costing programs and proposals is significant form of govern-

about $250 million. The already suspect because in ment financial aid to reli-

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gious elementary and sec- amendment allowing prayer ondary schools. According in the public schools; only SCHOOL BOARD MEMBERS’ to the ACLU’s analysis, “The 31% supported voucher TOP 10 CONCERNS engine driving this legisla- plans that permit parents to tion is the effort to get fed- choose private and religious Increasing enrollment 12.1% eral tax dollars into private schools, in addition to pub- Curriculum development 10.2 religious schools, and the lic schools. Only 20% said At-risk kids 7.5 Act crashes into the First parents who send their chil- Facilities 7.0 Amendment for precisely dren to private and religious Technology 5.3 that reason.”20 schools should receive tu- State mandates 5.2 Many of the constitu- ition tax credits from the Parent involvement 3.9 tional issues raised by the government. Management issues 2.2 Safe and Affordable Schools Collective bargaining 2.2

Act of 1997 were addressed

○○○○○○○○○○○○○○○ by the Supreme Court in Religious Freedom Source: The American School Board Journal, January 1997 1973 in Committee for Public Restoration Act Education and Religious Lib- erty v. Nyquist.21 In that case, Congress passed the Reli- To many religious lead- the court struck down a tu- gious Freedom Restoration ers, the court’s decision in 57 ition reimbursement pro- Act in 1993, responding to Employment Division v. gram that gave unrestricted an unprecedented display of Smith,23 in which it ruled grants of $50 to $100 per unity among diverse reli- that a state did not need to child to low-income parents gious organizations. These show a compelling interest who sent their children to groups wanted a new na- to justify a restriction on re- private schools. This pro- tional standard regarding ligion, was a significant set- gram resembles the voucher the obligation of govern- back for religious freedom plan outlined in the Safe ment to accommodate reli- in the United States. Court and Affordable Schools Act. The same thinking was seen in the unanimous ruling in 1997 by the Ohio Court of In past rulings the Supreme Court has Appeals that the state’s invalidated every significant form of voucher program was unconstitutional because its government financial aid to religious “direct and substantial, non-neutral government elementary and secondary schools aid to sectarian schools” would advance religion and gious practice. Spurring decisions immediately fol- thereby violate the separa- them was a 1990 Supreme lowing Smith showed a less- tion of church and state.22 Court ruling upholding protective approach to free- In 1996, the National Oregon’s denial of exercise claims, and many School Boards Association workman’s compensation to felt the only way to protect conducted a nationwide sur- two employees after they religious liberty was vey of school board mem- were discharged from their through legislation. Some bers on such issues as jobs for using peyote, a hal- 60 religious and civil liber- vouchers and school prayer. lucinogen, in religious exer- ties groups, spanning the Fewer than one-third sup- cises. political and theological

ported a constitutional spectrum, worked together

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to support passage of what that it would violate a local ling government interest became known as the Reli- historic-preservation ordi- must be shown before the gious Freedom Restoration nance. The archbishop ar- free exercise of someone’s Act (RFRA). In essence, the gued that the ordinance religion can be infringed. Religious Freedom Restora- violated free-exercise rights Michigan, Florida and Ohio tion Act enacted into law protected under RFRA and are drafting similar laws. the compelling-interest took the city to court. This Ohio Attorney General standard that existed prior case reached the Supreme Betty Montgomery, who is to the Supreme Court’s deci- Court in the spring of 1997. drafting the Ohio Religious sion in Smith. President Marci Hamilton, a law pro- Liberty Act, has said that, Clinton commented on the fessor who argued City of unlike RFRA, the proposed “majestic quality” of the Boerne v. Flores before the bill would exclude prisoner legislation, and Vice Presi- Supreme Court, said that complaints and would rep- dent Al Gore called RFRA there was no crisis justifying resent Ohio’s particular reli- “one of the most important the usurpation by Congress gious interests.27 steps to reaffirm religious of the authority of the Su-

freedom in my lifetime.”24 preme Court to articulate

○○○○○○○○○○○○○○○ 25 RFRA lowered the hurdle constitutional standards. Reconciliation over 58 for plaintiffs who claimed The court agreed with matters of faith that a government agency Hamilton, unconvinced was imposing an excessive that the stated infringe- As parents, educators and limitation on religious ac- ments were as serious or as others wrestle with the prob- tivities. Once a court deter- widespread as Congress be- lems surrounding religion mined that a government lieved. The court therefore today, America remains a na- action had placed a substan- held that RFRA was uncon- tion deeply committed to tial burden on religion, the stitutional because the ex- the freedom to choose in state needed to show that it tensive reach of the legisla- matters of faith without gov- had both a compelling gov- tion was disproportionate to ernment interference. The ernment interest and had the scope of the claimed in- most promising develop- used the least restrictive juries.26 ments of recent years are the means to further that inter- Charles Haynes, a scholar attempts to work out differ- est. on religion at The Freedom ences in religious beliefs Despite the good inten- Forum First Amendment through communication tions of those who sup- Center in Nashville, Tenn., rather than confrontation. ported RFRA, the law was and one of the leaders in As Charles Haynes notes: criticized by other legal ex- the movement to have “There is a strong move- perts as an act of overreach- RFRA passed by Congress, ment across the nation to ing by Congress, in viola- called the date of the court’s recover what it means to be tion of the separation of decision “a devastating day an American citizen. An powers. The issue of RFRA’s for religious liberty.” A American is not defined by constitutionality was pre- growing number of states race or ethnicity, but by a sented to a court after the are working on “state commitment to the demo- archbishop of San Antonio RFRAs” to keep alive its cratic first principles in our sought to tear down an old heightened burden on gov- framing documents. Because church in Boerne, Texas, in ernment in situations in- of our exploding religious order to build a larger facil- volving religious practice. diversity, there is an urgent ity. The city wouldn’t allow The constitution of Rhode need for all citizens to re-

the demolition, claiming Island states that a compel- think our shared commit-

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ment to the guiding prin- have been sponsored by ligion and Public Education, ciples of religious liberty. various organizations. The was published by The Free- These principles of the First success of such events has dom Forum First Amend- Amendment provide a civic been due to the mutual rec- ment Center in Nashville in framework for living with ognition of the serious so- 1994. This book, and A our deepest differences.” cial damage that could re- Parent’s Guide to Religion in The commitment by a sult from prolonged the Public Schools, a pam- number of religious groups to antagonism. Such efforts are phlet published by the Na- working out their differences part of a series of steps tional Congress of Parents has led to a series of public taken in the last decade of and Teachers and The First dialogues in a number of the century to advance reli- Amendment Center, pro- communities. These meetings gious liberty. They show vide clear and concise sum- have brought various stake- that the principles of the maries of the issues regard- holders to the table, including First Amendment can be ing religious liberty and the conservative and moderate re- used to find new solutions inclusion of religion in pub- ligious organizations, school to contentious issues sur- lic education.28 administrators, teachers and rounding religious liberty.

parents, as well as groups such In June 1988, leaders rep-

○○○○○○○○○○○○○○○ as the Christian Legal Society, resenting many segments of Conclusion 59 People For the American Way, American life signed the the American Association of Williamsburg Charter, Religious freedom is at the School Administrators and which addresses the dilem- heart of this country’s ex- the National Education Asso- mas and opportunities periment with democracy. ciation. posed by religious liberty in The continuing controver- Jan Vondra, assistant su- American public life. The sies are proof of continued perintendent for curricu- charter calls for a renewed passion for liberty of con- lum/education services in national compact as a foun- science, even as debates the Snowline School District dation for forging agree- rage about whether religion in Southern California, has ment by religious and non- receives sufficient attention participated in several such religious organizations. The from the media, educators meetings. About one meet- same month the charter was and the government. Dis- ing, moderated by Haynes signed, a coalition of na- putes involving religious in Nashville, Vondra said, tional educational and reli- liberty reflect America’s am- “This helped educators like gious groups published Reli- bivalence about the limits me by showing that specific gion in the Public School of individual liberty. At strategies for dealing with Curriculum, calling attention present, the country’s inter- issues like school curricu- to the need for study about nationally recognized com- lum can evolve from this religion in public schools. A mitment to tolerance of all sort of thing. An under- new curriculum was offered cultures and faiths is being standing of the First for use in both public and tested and torn. The ques- Amendment provisions, private schools. Soon after tion to be answered is which most of the partici- this, another pamphlet pro- whether we can sustain this pants had, was extremely posed guidelines for the commitment to the reli- important.” Equal Access Act. A book, gion clauses of the First There are numerous ex- Finding Common Ground: A Amendment into the next

amples of forums, which First Amendment Guide to Re- century. •

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1 Virginia Bill for Religious Liberty, 8 Edwards v. Aguillard, 482 U.S. 578 17 Westside Community Schools v. 1786. (1987). An Alabama statute requir- Mergens, 496 U.S. 226 (1990). 2 Samuel Rabinove, “The Supreme ing that teaching of evolution 18 August Steinhilber, National Asso- Court and the Establishment must be balanced with teaching of ciation of School Boards, inter- Clause,” pamphlet from the “creation science” was ruled un- view, Feb. 19, 1997. American Jewish Committee, New constitutional because it did not 19 Warner-Jackson et al. v. John York City; Samuel Rabinove, “The have a secular purpose. Benson et al. Evolving Establishment Clause: 9 Engel v. Vitale, 370 U.S. 421 20 ACLU memorandum on Safe and Rosenburger v. Rector,” in First (1962). Affordable Schools Act, 1997. Amendment Congress Newsletter, 10 Stone v. Graham, 449 U.S. 39 21 Committee for Public Education Denver, Winter 1995-96, pp. 5-7. (1980). and Religious Liberty v. Nyquist, 3 Agostini v. Felton, 473 U.S. 402 11 Karen Haywood, “Religious 413 U.S. 756 (1973). (1997). Speech Should Also be Protected, 22 Simmons-Harris v. Goff, 680 N.E. 4 Aguilar v. Felton, 473 U.S. 402 Says Institute Chief,” Associated 2d 1021 (1997). The Ohio Su- (1985). Press, Oct. 20, 1988. preme Court issued a stay on July 5 William Lee Miller, “The Moral 12 A similar bill died in the previous 24, 1997, allowing the Cleveland Project of the American Fathers,” term of Congress because different school choice program to con- in Articles of Faith, Articles of Peace: sides could not agree on wording. tinue for the upcoming year (681 The Religious Liberty Clauses and Most conservative religious groups N.E. 2d 938 (1997)). the American Public Philosophy, supporting the amendment did 23 Employment Div., Dept. of Hu- James Davison Hunter and Os not want to return state-spon- man Resources of Oregon v. Smith, Guinness, eds. (Washington, D.C.: sored religion to public schools 494 U.S. 872 (1990). Brookings Institution, 1990), pp. and opposed language that might 24 Speech at Religious Freedom Res- 60 17-39. lead school officials to be involved toration Act signing ceremony, 6 The Report of the Department of in religion. The amendment’s pro- Nov. 16, 1993. Treasury on the Bureau of Alcohol, ponents argued that their intent 25 Marci Hamilton, Freedom Forum Tobacco and Firearms Investigation was to protect the right of stu- roundtable on religious liberty, of Vernon Wayne Howell, also dents to practice their faith (pre- Nashville, Tenn., April 28, 1997. Known as David Koresh, 1993, Gov- sumably even in front of a captive 26 City of Boerne, Texas v. Flores, 117 ernment Printing Office; Report of audience). S. Ct. 293 (1997). the Deputy Attorney General on the 13 Chandler v. James, 958 F. Supp. 27 “AG Wants State Religious Liberty Events at Waco, Texas, February 28 1550 (M.D. Ala. 1997). Law,” National Law Journal, July to April 19, 1993, Government 14 Ibid. 14, 1997, p. A8. Printing Office. 15 Ingerbretson v. Jackson Pub. Sch. 28 Charles Haynes and Oliver Tho- 7 Dean Kelley, “Waco: A Disaster Dist., 88 F.3d 274 (5th Cir. 1996), mas, Finding Common Ground: A and Its Aftermath,” in The Law of cert. denied 136 L.Ed.2d 304 First Amendment Guide to Religion Church and State, p. 495 (to be (1996). and Public Education (Nashville, published in 1997). 16 School District of Grand Rapids v. Tenn.: The Freedom Forum First

Ball, 473 U.S. 373 (1985). Amendment Center, 1994).

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Religious Liberty

Roundtable

○○○○○○○○○○○○○○○ he Freedom Forum are excerpts from the two- Participants invited a group of hour conversation, held at First Amendment au- The Freedom Forum First Marci A. Hamilton T Benjamin Cardozo School of Law thorities to participate in a Amendment Center at roundtable discussion on Vanderbilt University, Elliot M. Mincberg People For the American Way the state of religious liberty Nashville, Tenn., on April Thomas A. McCoy in the United States. Here 28, 1997. Vanderbilt University

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Steven T. McFarland Christian Legal Society CHARLES HAYNES: Where do you think we are in the United States 61 when it comes to religious liberty for all? Warren A. Nord University of North Carolina STEVE McFARLAND: The interpretation of the First Amendment’s at Chapel Hill ban on the establishment of religion is in chaos. You have prohibi- Mary A. Sosa tions, according to the courts, on school districts providing busing National Education Association for parochial students on a field trip but not to and from school. It is Oliver Thomas an understatement to say there are no bright lines. Only a key swing National Council of Churches vote in a 5-4 decision every couple of years provides much guidance,

and it provides very little for the real decision-makers, the school ○○○○○○○ boards and the attorneys representing school boards, not to men- ○○○○○○○○ tion the problem in other venues—the workplace, the public square. Moderator The interpretation of the establishment clause is problematic, hence Charles Haynes The Freedom Forum the drive toward a constitutional amendment to clarify its proper First Amendment Center interpretation. Free exercise already has been rendered toothless as a federal right in 95% of the cases in which it would be invoked. We must rely, instead, upon a federal statute, the Religious Freedom Res- toration Act, which may be struck down by the Supreme Court,1 leaving us with only state law or free-speech claims to defend our first freedom. There is a troubled horizon for religious freedom in this country.

MARY SOSA: I see it as a state of uneasiness and confusion for most people, and to some degree, because we are becoming more diverse, even in close quarters communities are not as intact as they used to be. People are more mobile, and all of this causes people to just re- treat and become more isolated, rather than offending or questioning what other people do. So we either do not do anything about religion and give the impression that we don’t care, or we offend, because we don’t know each other well enough, and we are afraid to

ask those questions.

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OLIVER THOMAS: Some Supreme Court cases on free-exercise clause jurisprudence is far from per- the surface appear contradictory, but I don’t think fect, and there are serious problems with it in underneath they really are. There are some differ- some respects. With the establishment clause in ences, and some of it appears inconsistent. But my particular, the basic principles articulated by the take on it is that there is more consensus right court are there and are helpful and useful. The now. There are people who are not happy with the fundamental model of the establishment clause establishment clause, but that is nothing new. and the free-exercise clause as the twin pillars that There were people who were very unhappy with it support religious liberty, as President Clinton said when it was adopted. On the other hand, with the in his speech in 1995, is an important one, and it free-exercise clause, the Supreme Court has aban- is an important image for all of us to keep in doned the field, left it to the rest of us to figure out mind, because it does a lot toward helping us fo- what we do in the wake of Employment Division v. cus on where the threats are, if any, and how to Smith. But there is a strong national consensus, as deal with them. There is an increased threat in reflected by the fact that the Religious Freedom the last, say, five to 10 years to minority religions Restoration Act, constitutional or not, almost because of what one might call the resurgence of Oliver Thomas passed unanimously in the Congress—and reli- attempts, usually associated with the right, to gious groups across the spectrum supported it. push the ability to get majority religion recog- There is a strong consensus that we ought to try to nized in the schools or in other places. Some of 62 accommodate free exercise when we can. the constitutional-amendment proposals are very clearly designed toward allowing the majority WARREN NORD: My sense is that we have made a lot of progress in the last 30 or 40 years, not just view to prevail in particular schools and particu- constitutionally—mainly that—but in the broader lar communities in a way that is potentially culture in appreciating religious liberty. Part of threatening to those in the religious minority. that is through pluralism, which forces people to TOM McCOY: If you think in terms of the na- deal with questions and work through them. One tional sense of religious freedom, or even maybe a thing that has impressed me, working with a lot of national commitment to religious freedom, I am teachers and parents, is that even if people are very encouraged about that. There is probably fairly hostile to what they understand the courts more of a commitment in the most general terms to be saying, oftentimes they can come around now than there ever has been in our history. I’m fairly quickly. My deepest concern is that there also a little bit worried about some of the pro- seems to be a lack of sophistication on the part of posed constitutional amendments. They suggest the courts perhaps, educators certainly, on the maybe less than a complete commitment to reli- proper role of religion in education. There seems gious liberty. Let me say, however, that the devil is to be a kind of uncritical secularism which keeps in the details, and with respect to the important us from appreciating the proper role of religion details, we are not in very good shape. I agree that and religious liberty, in particular, in public the court’s establishment-clause jurisprudence is schools. essentially chaotic. I do not see any consistent principal themes in there. About the best you can ELLIOT MINCBERG: On the fundamental question of what is the state of religious liberty in get out of it is a sense of good intention on the America, the answer to that is: “Pretty good.” Most part of the variety of opinion-writers, but no co- people in this country feel like they are free to ex- herent doctrinal construct that seems to me to be ercise their religion the way they want to. Cer- workable over the long run. With respect to the tainly when you compare the United States today free-exercise clause, my view, very bluntly, is that with other countries or, indeed, with other periods the court made a terrible mistake in Employment in American history, you would have to say that, Division v. Smith, that they should never have overall, we are in reasonably good shape. I agree abandoned the free-exercise clause, which they ef-

that the Supreme Court’s establishment-clause and fectively did. As a result of that bad law, Congress

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then felt moved to pass another bad law; that is, MINCBERG: What Steve’s and Buzz’s comments the Religious Freedom Restoration Act. It is a fairly indicate is the wisdom of what Marci said in terms common phenomenon. You make one mistake of the Supreme Court’s jurisprudence. It is very and then you try to compensate for that mistake context-dependent, because you have a couple of by making another mistake, and that is what I principles; neutrality is one of them, but not the think Congress did in RFRA, in pursuit of a very only one that the court looks at. I go back to Jus- good cause. tice O’Connor’s opinion in Rosenberger, for example, which I think is very revealing in that re- MARCI HAMILTON: The case has not been made yet for federal intervention into religious-liberty is- gard. She talks about neutrality as one principle, sues. The case certainly is not made in the legisla- but as another principle of the establishment tive history of RFRA itself. I see the fervor of those clause the notion that the government shouldn’t who have argued in favor of RFRA, and I am cer- fund religion. Not a farthing from tax money tainly willing to be moved by it, but I have not seen should go to support somebody else’s religious the evidence of danger to religious liberty that point of view. would justify this massive incursion of federal gov- HAYNES: How do you feel about equal treatment ernment in every law in the United States. I from the government when it comes to something wouldn’t say that the court’s establishment-clause like allowing equal access to religious clubs, as well jurisprudence is in chaos. The Supreme Court jus- as religious speech? 63 tices are moving toward a context-dependent juris- MINCBERG: As the court said in the Lamb’s Chapel prudence, where they are willing to apply a differ- case, it is fine so long as that so-called equal treat- ent test depending on the set of factors in front of ment doesn’t give rise to a perception of endorse- them. I don’t think they feel like they are in chaos. ment of a particular religious point of view. HAYNES: Let’s talk about where the religious-lib- HAYNES: And for you, one of the things that is re- erty jurisprudence is using one word: “neutrality.” ally going to trigger the problem is when religious What do we mean by “neutrality”? activity is funded by the government. THOMAS: I would say that neutrality means no McCOY: I don’t see that the establishment clause funding because neutrality as a general purpose ever in its history was designed to prevent percep- means that you neither advantage nor disadvan- tions of endorsement. It was designed to prevent tage religion; that the government does not pro- endorsement. And I don’t think the establishment mote religion and does not inhibit religion. Neu- clause was ever designed to prevent government trality means that we do the best we can to keep money going to some religious institution without one’s standing in the political order separate from some assessment of what the government money one’s standing in a particular religious commu- was being used for and what the objective of the nity. Neutrality is the most unifying concept that program was. you find in the case law. Some of us take the posi- HAMILTON: tion that no funding is neutrality, and others I actually think that the term “neutral- would take the position that that is not neutral, ity” has become a problem. It doesn’t have any that you have to make funding available to reli- content anymore, and so it now finds itself being Tom McCoy gious organizations just as you make them to secu- championed by various scholars for the proposition lar ones. that the free-exercise clause ought to be read as narrowly as Smith, and that the establishment clause McFARLAND: I agree that neutrality is the goal, but permits just about everything but the state becom- I come to a different result than Buzz [Thomas]. As I ing a church. So it seems to me that neutrality understand substantive neutrality, it should be that needs to be unpacked somewhat, and the question the government action neither penalizes nor pro- is, what principles would you unpack from it? If motes a religious choice over a nonreligious choice. you look back in history, the single most troubling

issue seems to me to have been the union of power

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between church and state, so that the resulting McFARLAND: If it would violate the conscience union is capable of wielding an overweaning of the beneficiary to have to even set foot in a amount of power, to the detriment of the people. faith-based social service agency or soup kitchen, The court’s doctrine may appear to be ad hoc bal- then the government must provide that person ancing, but I think it is more accurately identified with a secular alternative. as context-dependent. One of the most interesting HAYNES: It might help us to talk a little bit more establishment-clause questions we have right now about what neutrality means, particularly when it is in Michigan, where you have a very visible Re- comes to education. publican governor who decides to cut down on NORD: welfare and to then provide funding to churches— My concern as a philosopher is that we to do what it is the state is no longer going to do. teach students to think about the world He has taken the tack that he can pay money di- uncritically in exclusively secular categories that rectly to the churches to provide what amounts to often stand in tension or confliction with religious largely religious and theological counseling. That categories. This is not so much a conflict over spe- has to be unconstitutional. cific beliefs (like evolution); rather it is over the basic philosophical categories that we teach students HAYNES: Does that disturb you, Steve, or is that to use in thinking about all of nature and history what you are talking about? and sexuality and morality and economics and ev- 64 McFARLAND: I cannot think of anything that the erything else. Education conveys the message that government is less qualified to do than to judge to be reasonable one must think in secular terms, when the Catholic community services has slipped and we marginalize religion in the process. The into becoming pervasively sectarian. The issue will only way to make sense of the concept of neutral- be how many beds can you provide, how much ity is in terms of fairness, when there are ways of soup can you ladle, how many foster children can thinking about subjects in the curriculum that are you place? If you are anything from Salvation contested on religious grounds, where different Army to a secular agency, your religiosity, or lack people give different kinds of answers and do so in of it, will not place you in better stead with the systematic ways, then public education has an ob- government. That seems to me as a workable neu- ligation to be fair to the contending parties. The trality principle, not who is the payee on the courts have not been very thoughtful about this. check. As I said in my initial comments, I think educators have been utterly naive about it. So the only way it SOSA: What happens if I am a homeless person, and the only option that I have is to go to either makes sense to talk about neutrality is in the cur- one of two religious-based groups, and what I get riculum as a whole. The overall curriculum has to is not only the bed and the meal, but also a reli- be neutral. gion that I don’t want to be a part of? And my HAYNES: Mary, I want you to comment on this. government is paying for it. What does the National Education Association think about this trend of dealing more with reli- McFARLAND: In the welfare-reform bill, that is prohibited. There has to be a secular choice for you. gion in the curriculum? SOSA: I guess the politicizing of public education MINCBERG: But Steve, your analysis suggests that there does not have to be secular choice. By your is what harms our ability to do what is right in a Mary Sosa analysis, the governor of Michigan should look classroom. There is a real need to include more dis- around and say, “Who’s going to do the best job at course and more training. What you find when providing beds? Well, it happens it’s the church, you work with educators is that there is a real wel- and it’s only the church, so I’m going to only fund come on their part to hearing and to learning the church,” and that puts the homeless person in what needs to take place in those classrooms. Usu- exactly the situation Mary describes. ally, those people will do a better job when they go

back. But they still face those school boards and

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those administrators who also need to be included HAMILTON: It seems to me that if your concern is in this education process. It is not enough for the not neutrality per se and it is not fairness but di- teachers to be able to do it. It is not even enough versity, you have just created a First Amendment for a principal to be able to do that. The school obligation to teach a diversity of views. To teach a boards and the superintendents need to know. diversity of views in an educational curriculum, the problem is that you have to do what is peda- MINCBERG: I do think that Mary is right, that in schools, in particular, the problem of gogically appropriate. I am concerned when the politicization is really quite serious. The notion discussion goes from quality of education to diver- that prayer or religion has been excluded from the sity of views for their own sake. I think we are bet- public schools, and that the effort of proponents ter off, and we are avoiding establishment-clause of religious freedom is to put it back in public concerns, if we can make the move to say that schools, buys into what has been in large measure education has to be judged according to its peda- a political slant that has been put on the issue. It is gogy and according to what is in the best interests important to recognize that as one point of view, of the children in terms of what they need to not as the appropriate way of describing these sorts learn, and that diversity is going to have to be of issues, and to look at it in those terms. tempered by reality. NORD: One of the pleasant complementaries for SOSA: Even some of the efforts to allow the kids me is that my reading of neutrality in the estab- to have the freedom to pray have often seemed 65 as—and rightly so—only the first step toward lishment clause meshes so nicely with my under- bringing religion in a more formal way into other standing of what a liberal education is. That is to areas of a school. There is a movement here. It say that one cannot have a good education with- isn’t just a simple issue of having a kid saying, “I out understanding a good deal about religion, and want to pray.” This kid has been approached by that does not just mean religion in history. To be someone else who has got an agenda. So the liberally educated, one must understand the major politicization is everywhere. different voices in our culture and try to make sense of the cultural conversation that we are hav- McFARLAND: I sure think that you need to define ing. We don’t do that at all. So I don’t see the fair- what this politicization is. If this means that there ness or diversity—depending on how we put it— Warren Nord is a mastermind in Colorado Springs that is be- argument undermining the educational basics. hind every complaint about a textbook, is behind McCOY: every request for an equal-access Bible club, I can- It seems to me that the basic principle be- not imagine anybody at this table believing that. hind the establishment clause is that we may not de- But when a kid, whether put up to it by his parents liberately use either the power or the purse of gov- or her youth pastor or her own conscience, is ask- ernment to give competitive advantage to religion, ing for the opportunity to exercise free-speech and if there is no competitive advantage, the fact rights, whether based on the First Amendment that government money ends up in religious hands and/or the Equal Access Act, or wants the opportu- does not bother me, and it does not seem to bother nity to write a research paper on a religious topic, the current Supreme Court. or wants to be able to reference her faith in a HAYNES: Tom has put forward a possibility for graduation speech, this isn’t politicization. where the court is going or where the court ought to be going. Steve actually proposes an SOSA: That is not what we are challenging. amendment to make sure the court goes in an- MINCBERG: No, not at all. I am not suggesting in any other direction. way that all of this is politicizing, but there is no ques- HAMILTON: tion that there is some politicizing that is going on. Power is subtle. It is corrosive, and cor- rupting, and it comes in many forms. The court SOSA: What I want to say, though, is that when needs a multiplicity of tests to be able to keep the there is a lot of ignorance, a little politicizing goes a power of the church and the power of the state suf-

long way.

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ficiently distinct so that they are not engaged in the MINCBERG: First of all, in terms of Tom’s point kinds of tyrannies that the framers most feared. about accidental impact, in some ways it is even worse than that, in a sense, because what we are HAYNES: Let’s talk about the free-exercise clause. How does the government guard this unalienable talking about in terms of what Smith removes, if it right, as Madison called it? For many years, the Su- is taken as far as it can be, is any harm to religion preme Court used a compelling-interest test to unless intent to harm religion can be proven. One guard that right. Then that changed with Employ- of the reasons for laws like RFRA is that intent is ment Division v. Smith. Tom, you said earlier that often difficult to prove, and the need for a rule like you thought Smith was wrongly decided. Why? the one that developed for 30 years prior to Smith is to protect against both unintentional and some McCOY: As I understand Smith, it is simply part of intentional but well-hidden harm to religion. I a larger campaign by Justice Scalia to persuade the also cannot talk about Smith without observing court that accidental interferences simply do not what a textbook example it is of what I call conser- raise First Amendment problems. I think that view vative judicial activism, because, as Scalia himself is fundamentally wrong. To state it in the affirma- admitted, he was trying to change the law, and he tive, I think that interferences with First Amend- did it in a way that is astonishingly inappropriate, ment freedoms will occur not just in those rela- as those of us who were there at the time remem- tively rare cases where the legislature deliberately ber. The theory that was articulated by Scalia was 66 set out to interfere with your freedom, as appar- never argued by either party in Smith, never talked ently they did in the Hialeah case in free exercise, about in briefs, amicus or otherwise, and was un- but will more often occur as a result of legislative necessary to the decision. As O’Connor pointed inadvertence. So it seems to me that you do need a out in her concurrence, you could have produced jurisprudence for accidental interferences with the same result without completely rewriting free- First Amendment rights, in this case the free-exer- exercise clause jurisprudence. Even some of my cise right. The appropriate jurisprudence is what conservative friends agree that is an example of ju- the court was actually doing, as opposed to what dicial activism to the max. they were saying, prior to Smith. They were trying HAYNES: to engage in an ad hoc balancing of the I want to get to the question of what government’s regulatory objectives against the ex- happens if the U.S. Supreme Court declares the Re- tent of the accidental interference with religion. ligious Freedom Restoration Act unconstitutional? McCOY: I think the appropriate remedy is to over- HAMILTON: The one thing that Smith does is it re- duces the incentives to litigate disputes between lo- rule Employment Division v. Smith. That is the way cal governments and churches. It brings people to you fix the problem. the bargaining table faster, rather than more slowly, HAMILTON: I would not have any problems see- and I don’t think that is necessarily a bad thing. In ing Smith overturned. I would have more problems the communities I have dealt with, the people on seeing that a least-restrictive means test was going the city council were not evil people, and the heads to be employed across the board. That is actually of the churches were not evil people. There are lots an unfair advantage to the churches in dealing of instances where they came to conclusions that with these circumstances, and it is very unfair to were amicable on both sides and that were friend- expect government officials to understand every lier because the courts did not become involved. So religion that is within their boundaries. I pray that it seems to me that one of the major problems with the various organized religions that have backed Marci Hamilton RFRA, setting aside constitutionality, is that it is an RFRA will come back and tell us what the state of invitation to litigate early on local community dis- religious liberty in the country is and why we need putes that could be resolved if people would sit federal legislation. If they come up with some per- down at the table and talk to each other reasonably. suasive reasons why we need it, then I think we And I think that is unfortunate. ought to do something. But I would like to see

them do it. I have heard that if it is ruled unconsti-

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tutional, we will have a constitutional amend- bringing the community together to discuss their dif- ment, and I don’t understand why that would be ferences, find common ground and establish trust. the next step. It seems to me the next step is try to SOSA: I think what people have to know is what find out where we are and what, in fact, needs to their rights really are, and I don’t know that they be done, with due respect for the ability of the have to know the kind of detail about whether it is states to operate, with federalism principles in in RFRA or anywhere else. They do have to know mind. I hope that we will not see a rush to a con- enough to question or to begin asking who can stitutional amendment, which will not be success- help or what kind of education we might need in ful and will take up people’s efforts, at a time when a school so that people can enjoy those rights that perhaps religious liberty is in fact being sup- they haven’t been enjoying. Those are the kinds of pressed. If that is in fact going on, we ought to do questions that have to be asked in those schools. something about it. As to the fact that RFRA was Raising the issue, especially if your religion is a mi- passed quickly: If you are going to readjust any nority religion, is not something, even if you have First Amendment freedom, to do it quickly seems a right to raise it, that people are willing to re- to me an argument to stop in your tracks and respond to—without a lot of thinking. What we think what you are doing. If the people are not have to do is create understanding and educate, alerted at all to a major restructuring of the rela- rather than have people know what their right is tionship between church and state, I would say and to litigate. that something has been done to them, and it has 67 HAYNES: been very inappropriate. What has happened here One of the broader questions that I is that organized lobbies for various organized reli- would like you to comment on is the free-exercise gions have tremendous power. It turns out that question in the public-school arena. How much ours is not a culture of disbelief, it is a culture of freedom of religion should students have? deep belief, with deep political power. Churches McFARLAND: It would be a loss for students in are very politically powerful entities, and the American schools to have to solely rely on free members of Congress, even though they thought speech or the First Amendment or their state consti- that RFRA was potentially troubling from a constitution religion clauses to obtain or preserve what is tutional standpoint, voted for it out of fear as undeniably free-exercise-of-religion-type claims. If much as anything, and so it passed quickly. we don’t have a statutory alternative that gives some leverage to the parent and the student, home MINCBERG: One of the big issues is going to be what is going to happen not just to religious lib- schooling is not an option for a single-parent fam- erty but to the whole range of civil rights protec- ily or for a two-earner family. Private school is pro- tions that Congress has enacted, where the Su- hibitively expensive. More often than not, vouch- preme Court has said, wisely or unwisely, that the ers—if they are even legislatively viable—are ruled Constitution alone does not provide that level of unconstitutional. A lot of folks who take their faith seriously see an increasing secularity to the world protection. I would not jump into a constitutional Steven T. McFarland amendment. Other alternatives do need to be view that is presented in public education, and they looked at and explored. There are some states that feel impotent to change that. If they don’t have a have already ruled that their constitutions provide statute on their side, you have a pressure cooker. the kind of protection to religion that the Su- There are a lot of folks who, no matter what Gallup preme Court took away from the free-exercise poll you look at, articulate that religion is real im- clause in Oregon v. Smith. So in those states you portant to them, and yet they are, in their percep- clearly don’t need RFRA in that respect. tion—and in mine in a number of cases—second- class citizens in the public-education system. HAYNES: What is the impact on public schools if Constitutional amendments may gain much more RFRA were overturned? What should be done? momentum unless we have things short of an NORD: One of the most important things to do is go amendment where religious voices in public

through the process of developing school policies, schools are heard and respected.

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MINCBERG: There is something else that provides McFARLAND: I would say evangelical and funda- some important chips on the side of those who are mentalist Christians—I don’t know if that would interested in religious liberty, and that is, in fact, be mainstream or not—but they are not an insig- the First Amendment as it now exists, in some im- nificant number of people. portant contexts. This goes in part to the use of HAMILTON: For a group that has a great deal of the free-speech clause to argue in favor of religious political power, how is it that they simply are inca- speech in public schools or other contexts. That pable of getting their reasonable religious requests option is there and has been used very successfully observed? by some advocates. There is, however, an impor- McFARLAND: tant limit to it: the establishment clause. A very in- Maybe for the exact reason, Marci, teresting and often little-noticed exchange on that that you cited: That, sociologically, the small, occurred in the Lamb’s Chapel decision a few years highly organized, targeted group is more effective. ago. That was the decision in which the Supreme Whatever sociological-demographic reason, the Court ruled that when a school made its facilities point is, those kinds of insensitivities are pervasive, available in the evenings for rental by various or- and that is the pressure cooker. ganizations, it also had to allow a religious organi- HAMILTON: Then Justice Scalia is basically wrong zation to use them. The court in its majority opin- in Smith when he says that the society is largely re- ion there said yes, that is true, as a matter of the spectful of religious liberty? That is just a factual 68 free-speech clause. But it recognized that there mistake? may be instances where the establishment clause McFARLAND: In many circumstances, yes. may be a limit on that, where the reasonable ob- NORD: server would perceive that there is an endorsement In education, I think it is. Again, it has to of religion that may get in the way of what would do with our naivete about what it means to think otherwise be argued to be free-speech rights. in secular terms about the world, and there is more cognitive dissonance for religious conserva- HAYNES: And you would say, Steve, that equal tives and various liberals. Steve is right about that. treatment means that religious speech ought to be I am not sure that excusal policies and RFRAs solve treated equally, and the establishment clause that problem, but they are a contribution; they should not be used in that case to keep a student take some of the pressure off for people who know from saying a prayer before a graduation or assem- about them and are willing to do something, to bly? act on them. McFARLAND: That is right. The last time I SOSA: I believe that the day-to-day conflicts we checked, your basic student is not the spokesper- are experiencing stem from the different ways we son for the school district. The First Amendment see the world and the different role that religion should not be interpreted to apply to, or confine plays in our lives. Most of us, including many edu- the free speech of, private citizens. But the reason cators, live our lives in a secular manner. Even that free speech is not going to provide a safety though we may see ourselves as religious people, valve for release of some of the pressure in this our religion doesn’t shape our world as extensively Charles Haynes pressure cooker in terms of religion in schools is and dramatically as it does individuals for whom because there are some times when not just equal religion is more fundamental. So we may not un- treatment but special treatment needs to be af- derstand and are often caught off guard by people forded to folks on the basis of their religious con- who find shared experiences or school activities science. their children experience as offensive on the basis HAMILTON: Are you talking about pressure from of their religion. These clashes seem to be occur- mainstream believers who are having problems be- ring more often as we become a more diverse and ing able to function in the schools, or is this mobile society.

largely a minority religion problem?

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○○○○○○○○○○○○○○○ Biographies cational and religious organizations STEVEN T. McFARLAND and co-chaired coalitions that pro- Steven McFarland has served as the duced guidelines on “Religion in director of the Center for Law & MARCI A. HAMILTON the Public School Curriculum,” Religious Freedom in Annandale, Marci Hamilton is a professor of “Religious Holidays in the Public Va., since 1991. The center, which law at the Benjamin N. Cardozo Schools,” and “The Equal Access is funded by the Christian Legal So- School of Law, Yeshiva University, Act.” In addition, Haynes is the au- ciety, defends the religious liberty where she specializes in constitu- thor of Religious Freedom in of people of all faiths and has advo- tional and intellectual property law America: A Teacher’s Guide and cated for the preservation of and and serves as the director of the Religion in American History: What universal respect for religious liberty Cardozo Intellectual Property Law to Teach and How. He co-authored in courts, legislatures, and govern- Program. Hamilton writes and Living With Our Deepest Differ- ment agencies throughout the na- speaks frequently on First Amend- ences: Religious Liberty in a Plural- tion. Before joining the center, ment law. One of her recent ar- istic Society, a social studies cur- McFarland was a partner at the Se- ticles is The Religious Freedom Res- riculum. Most recently, Haynes attle law firm of Ellis & Li. During toration Act: Letting the Fox into edited the widely acclaimed publi- his time at the firm, McFarland liti- the Henhouse Under Cover of Sec- cation Finding Common Ground: A gated several appellate religious- tion 5 of the Fourteenth Amend- First Amendment Guide to Religion liberty cases, including Garnett, et ment (Cardozo Law Review, 1994). and Public Education. al. v. Renton School District Number 69 In addition, Hamilton is writing a 403. This Ninth Circuit “Equal Ac- book on the influence of the Pres- THOMAS R. McCOY cess” case sought to uphold the byterian Church on the formation As a professor at the Vanderbilt rights of public high-school stu- of the U.S. Constitution, entitled University School of Law, Thomas dents seeking to meet on a public- The Reformation Constitution. As McCoy teaches constitutional law, school campus for Bible study, and lead counsel for the city of Boerne, with a particular focus on the First is the parallel to the Supreme Court Texas, she argued before the Su- Amendment and other individual case Board of Education of preme Court the successful chal- liberties. He has served as consult- Westside Community Schools v. lenge to the constitutionality of the ant to numerous government and Mergens. Religious Freedom Restoration Act. private agencies and as a member During 1997-98, she will be a fel- of the National Governors Associa- ELLIOT M. MINCBERG low at the Center of Theological In- tion Advisory Committee on Feder- Elliot Mincberg serves as legal di- quiry and a visiting scholar at the alism. He serves as a consultant to rector and general counsel for Princeton Theological Seminary. The Freedom Forum First Amend- People For the American Way, a ment Center. McCoy is also a rec- nonprofit organization. Mincberg CHARLES C. HAYNES ognized authority in the study of spearheads a litigation and advo- Currently a senior scholar for reli- “conflict of laws”—the determina- cacy strategy targeted on priority gious freedom at The Freedom Fo- tion of which law is applicable in issues, including the effort to help rum First Amendment Center at the regulation of disputes that cross parents and schools resist censor- Vanderbilt University, Charles state or national boundaries. In ad- ship attempts and protect First Haynes was formerly the executive dition, he is an expert on the range Amendment rights. Before joining director of the First Liberty Institute of recently developed dispute-reso- People For the American Way, at George Mason University in lution techniques, such as media- Mincberg was a partner at Hogan Fairfax, Va. He serves on the board tion, that are increasingly employed and Hartson, a Washington, D.C., of directors of the Character Edu- to avoid the costs and unsatisfac- law firm, were he litigated and cation Partnership. Haynes was tory consequences of traditional liti- published extensively on the Equal one of the principal organizers and gation and arbitration. Access Act, affirmative action, drafters of a statement of prin- school desegregation, and the First

ciples sponsored by 21 major edu- Amendment. Mincberg taught at

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the Washington College of Law at written with Charles Haynes, is OLIVER THOMAS American University in the early called Religion and the Public Oliver Thomas is a Baptist minister 1980s and has written extensively School Curriculum: What to Teach and lawyer who has written exten- on legal issues, including articles in and How. sively on the subject of law and reli- The Harvard Civil Rights-Civil Liber- gion. He has worked with more ties Law Review and the New York MARY A. SOSA than 300 school districts on issues Law School Journal of Human Mary Sosa has worked with the pertaining to religion and public Rights, among others. National Education Association for education and has been involved in more than 18 years and has been much of the litigation at the U.S. WARREN A. NORD in the education field for two de- Supreme Court concerning religion. Warren Nord has been director of cades. While teaching middle- Thomas has co-authored numerous the Program in the Humanities and school English and reading, she guidelines used by public schools Human Values and a lecturer in the joined the Texas State Teachers As- on such issues as religious holidays, Department of Philosophy at the sociation as a field representative. the Equal Access Act, and teaching University of North Carolina at Sosa then moved to Washington, about religion. He also co-authored Chapel Hill since 1979. He has D.C., in 1978 to work with TSTA’s The Right to Religious Liberty, the taught courses on Philosophy of Re- national affiliate, the NEA. There, American Civil Liberties Union’s ligion, Philosophical Issues in Educa- she has designed and delivered only book on church-state law. He 70 tion, and Religion and American programs that promote leadership has represented many Evangelical Education. He also served on the development and enhance member groups and has lectured at Harvard advisory board of the First Liberty awareness of a wide range of basic as well as at Pat Robertson’s Regent Institute, as vice president and on human and civil rights issues. Cur- University. Thomas serves as special the board of directors for the Na- rently, Sosa and her staff monitor counsel to the National Council of tional Council on Religion and Pub- individuals and groups that attack Churches and is consultant to The lic Education, and still serves on the public education and the NEA. They Freedom Forum First Amendment editorial board of Religion and Edu- also develop educational materials, Center at Vanderbilt University. cation. Nord’s publications include conduct presentations and training, Most recently, Thomas co-authored Religion and American Education: and organize local and state affili- Finding Common Ground: A First Rethinking a National Dilemma ate projects to address these at- Amendment Guide to Religion and (1995) and many other articles pub- tacks and advance quality public Public Education. lished in professional and scholarly education. journals. Nord’s most recent work,

1 On June 25, 1997, the U.S. Su- preme Court ruled that the Reli- gious Freedom Restoration Act of 1993 was unconstitutional. City of Boerne v. Flores, 117 S.Ct. 2157

(1997).

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Freedom of Assembly and Petition

he First Amendment •In 1940 the Supreme language guarantee- Court held that orderly T ing the right to peace- union picketing is protected The right ful assembly and to petition by the freedom of speech government officials and and the rights of petition to peaceful entities affirms the right of and peaceable assembly.1 people to participate in pub- •In 1958 the freedom of assembly lic life by acting in groups association was first recog- and by holding the govern- nized in explicit terms by and to ment accountable for its ac- the Supreme Court when it 71 tions. It is the bedrock of struck down an Alabama political liberty. These rights law that required organiza- petition the cover a wide variety of civic tions to disclose their mem- endeavor—boycotts, pro- bership lists.2 government tests, marches, and demon- •In 1967 the Supreme strations; lobbying; freedom Court overturned a state is the of association; access to in- loyalty oath requiring formation—and fre- school teachers to swear bedrock quently overlap or are they were not members of closely related to other First the Communist Party or of political Amendment freedoms, such any other subversive organi- as speech and the press. zation.3 liberty 4Most people living in the •A 1982 Supreme Court United States take these decision found that a volun- rights for granted, much tary association could be like the air we breathe. They used to further economic are considered part of what interests. In this case, nei- it means to be an American. ther the NAACP nor its After all, this country came members could be held re- into existence as a result of sponsible for damages re- collective action in resis- sulting from a legal civil tance to arbitrary authority. rights boycott of white mer- During the 20th century, chants.4 a succession of judicial opinions has affirmed the There have been some sig- exercise of these rights in nificant exceptions to this political activity, ranging line of opinions. In 1997 from civil rights to electoral the Supreme Court upheld a

politics. For example: Minnesota regulation

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against the placement of ernment. membership lists can chill candidates on the same bal- The freedom of associa- the freedom of association, lot as the nominees of more tion includes freedom from so the Supreme Court has than one party—“fusion” compelled orthodoxy, a put more emphasis on the candidates. It said the regu- principle summed up pas- principle of associational lation does not restrict a po- sionately by the Supreme privacy. In one notable case, litical party’s ability “to en- Court: the court struck down the dorse, support or vote for If there is any fixed star in application of a state disclo- anyone they like” and does our constitutional constel- sure requirement regarding not violate its association lation, it is that no official, campaign contributions to rights under the First and high or petty, can prescribe the Socialist Workers Party, Fourteenth amendments.5 what shall be orthodox in since there was evidence Nevertheless, the rights politics, nationalism, reli- that disclosure would sub- of petition, assembly and gion, or other matters of ject contributors and recipi- association (which is im- opinion or force citizens to ents to harassment and pos- plied) are strong today. The confess by word or act sibly assault.8 government is forbidden to their faith therein.6 People have the right to obstruct peaceful assembly use public property, such as 72 and lawful protest based on Thus, freedom from com- streets and parks, for politi- content. It may, however, pelled association is seen as cal activities. The issues of make reasonable regulations a vital component of the free expression and equal regarding the time, place First Amendment, similar to treatment are relevant here. and manner of assemblies the right not to speak, not to For instance, a law that and demonstrations, so long believe, and not to petition. banned all demonstrations as they are not used to deny Government cannot con- near schools except in labor freedom entirely. dition employment or other disputes was struck down In a number of other aspects of its largesse on the because it regulated the countries, bans have been surrender of First Amend- content of assemblies, not only their time, place and manner. Demonstrations on the grounds of a state capi- While all this liberty is very tol or public library and even picketing at the Su- impressive, all is not well with preme Court have been upheld. the rights of assembly and petition. While all this liberty is very impressive, all is not well with the rights of as- imposed on political organi- ment rights. For example, sembly and petition. One zations; membership in one state’s denial of bar ad- serious problem is the pro- those groups is considered a mission to an applicant who liferation of lawsuits that crime. In the U.S., citizens refused to answer questions harass critics of certain pub- cannot be punished solely concerning membership in lic policies. Another threat for their membership in a a radical organization was emerges out of anti-terrorist party or association. At dif- overturned because the in- legislation. Finally, the abil- ferent times, however, se- quiry was not limited.7 ity of people to petition vere infringements have Registration require- government is being under-

been committed by the gov- ments and the disclosure of mined by the limitations on

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access to government infor- volved in teen curfews. In SLAPP, first coined by Uni- mation brought about by 1996, a judge barred en- versity of Denver professors budget-cutting and forcement of a curfew in Penelope Canan and George privatization. Washington, D.C., on the Pring, authors of SLAPPS: grounds that it would pre- Getting Sued for Speaking Out,

vent students from partici- describes a form of lawsuit

○○○○○○○○○○○○○○○ Teen curfews pating in “harmless” activi- aimed at intimidating citi- ties. Soon after that, the zens or groups that commu- Some believe curfews are an Washington State Court of nicate concerns to govern- effective way to help keep Appeals ruled unanimously ment about corporations, America’s streets safe. A that Bellingham’s 1992 cur- real estate developers, or 1996 survey of the U.S. few law infringed on mi- other private parties. Ac- Conference of Mayors re- nors’ fundamental freedoms cording to Pring and Canan, vealed that at least 270 cit- of movement and expres- “Americans by the thou- ies across the country have sion. Further, it said, the sands are being sued, simply youth curfews.9 Moreover, curfew interfered with the for exercising one of our the Supreme Court in 1997 rights of parents to super- most cherished constitu- let stand a decision of the vise their own children.12 tional rights—speaking out California Supreme Court On June 16, 1997, a federal on political issues.”14 SLAPP 73 that upheld a court order court invalidated San suits are usually brought by against young Latinos being Diego’s 50-year-old night- private parties, so that in seen together on certain time curfew for minors, one sense they are not viola- streets in San Jose.10 The finding that it was unconsti- tions of the First Amend- court’s ruling was lauded by tutionally vague and a First ment, which establishes Los Angeles prosecutors Amendment violation that protections vis-à-vis govern- who asked a state court to curtailed legitimate con- ment action. Yet the users of permanently enjoin public duct. Janice Scanlan, a SLAPP suits are asking an gatherings of a group of al- Bakersfield, Calif., official arm of government—the leged gang members, who led a coalition of 114 courts—to intimidate their known as the 18th Street California cities supporting critics and, in effect, deny gang. Law enforcement offi- the San Diego ordinance, them their right of petition. cials view this ban as an ef- said many cities would have The University of fective way to fight crime. to re-evaluate their own or- Denver’s Political Litigation Allan Parachini of the ACLU dinances as a result of the Project, which has studied in Los Angeles regards it as ruling.13 and reported the incidence “a cynical, political ploy of SLAPP suits for more

that has little to do with than a decade, found that

○○○○○○○○○○○○○○○ 11 crime.” Adds Woody Strategic Lawsuits citizens were being Moreno, whom police say is Against Public “SLAPPed” for a variety of a leader of the 18th Street Participation activities that were nor- gang, “Just because we have mally considered within the bald heads and we’re One of the most serious as- scope of First Amendment Latinos, we’re all gang saults on the public’s right rights. These include: members.” to petition the government •Writing letters to the Recent court rulings indi- takes the form of Strategic editor cate that some judges have Lawsuits Against Public Par- •Circulating petitions taken a serious interest in ticipation, otherwise known •Calling public officials

the constitutional issues in- as SLAPP suits. The acronym

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•Reporting police mis- Fair Housing Act. As part of ment of Justice and other conduct its investigation of the inci- parts of government. A fed- •Erecting signs or dis- dent, HUD ordered the pro- eral anti-SLAPP law is plays on their property testers to turn over all writ- needed.” •Testifying against real ten materials regarding the Even though the targets estate developers at zoning protest. Officials even of- of SLAPP suits usually pre- hearings fered to settle the case out vail in court, their time and •Demonstrating peace- of court—but only on the resources are diverted from fully against government condition that the protest- their original goals. So, action ers never speak or write re- many believe that laws are •Testifying before Con- garding the project again. needed to curtail the use of gress or state legislatures HUD eventually called off legal action to stifle civic ac- •Filing public interest its investigation of the pro- tion. According to Robert lawsuits test after it belatedly con- Richards, director of the According to New York cluded that the protest was Pennsylvania Center for the Supreme Court Judge J. protected free speech under First Amendment and one Nicholas Colabella, “Short the First Amendment. By of the nation’s foremost au- of a gun to the head, a this point, HUD had ha- thorities on SLAPP, these 74 greater threat to First rassed Berkeley protesters lawsuits have captured the Amendment expression can for three years. attention of at least 10 scarcely be imagined.”15 In 1997, with help from states, but only Washington Even federal agencies the Center for the Commu- and New York had enacted have gotten “SLAPP-happy.” nity Interest in Washington, anti-SLAPP legislation.17 By In 1994 the Department of D.C., legislation was intro- the end of 1997, California Housing and Urban Devel- duced in the House of Rep- and Tennessee had passed opment (HUD) used the resentatives that was in- such laws. Most anti-SLAPP threat of a SLAPP to silence tended to prevent future statutes are modeled after protesters in Berkeley, Calif., federal agency attempts to California’s landmark legis- concerned about the con- suppress the First Amend- lation. That law allows a SLAPP target to file a motion to summarily dismiss the case unless the party fil- “Short of a gun to the head, a ing the SLAPP can prove the case is not frivolous. The greater threat to First Amendment motion benefits the SLAPP target by staying all discov- expression can scarcely be imagined.” ery proceedings until the plaintiff can demonstrate version of a motel into low- ment rights of citizens who the merits of the case. The income housing for recover- oppose government pro- defendant saves money and ing alcoholics and other grams.16 According to Roger time by avoiding a long and substance abusers. In a dis- Conner, head of the center, expensive discovery battle. turbing use of federal au- this type of legislation calls Additionally, if the thority, agency officials for action on a growing defendant’s motion is suc- threatened to fine protesters problem. “Even though cessful, the plaintiff must more than $100,000 each HUD has backed away, there pay for all attorneys’ fees and even hinted at possible are still efforts to intimidate and costs associated with

jail time for violation of the dissenters by the Depart- the lawsuit.

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Recently, courts have make it illegal to disparage seen the emergence of the foods unless one has “sound STATES THAT HAVE PASSED “SLAPPback” suit. The scientific inquiry, facts or OR ARE CONSIDERING SLAPPback is a countersuit data” to support one’s DISPARAGEMENT LAWS aimed at holding plaintiffs claims. These laws are some- Have Law Debating Law accountable for injuries times jokingly referred to as Alabama Maryland they cause to individuals “veggie libel” laws or “ba- Arizona Nebraska and the public through a nana bills,” but their impact Colorado Vermont frivolous lawsuit. The irony on public discourse about Florida Wisconsin of the SLAPPback suit, ac- food safety is a serious mat- Georgia cording to Canan and Pring, ter. Television talk-show Idaho is that “the cure is a dose of host Oprah Winfrey, target Louisiana the same disease”—one law- of the first major lawsuit Mississippi suit to hold those account- based on these laws, cer- Ohio able for another lawsuit. tainly is not laughing. Oklahoma “The key to fighting a On an April 16, 1996, South Dakota SLAPP suit is to move to dis- show discussing bovine Texas miss on petition-clause spongiform encephalopa- grounds,” environmental thy, commonly known as 75 lawyer Mark Chertok told a “mad cow” disease, a guest preme Court, without com- writer for the American Bar speaker alleged that the U.S. ment, let stand lower-court Association Journal.18 cattle industry engaged in rulings that found that Chertok’s comment fol- practices associated with an apple growers had failed to lowed a ruling by the Su- outbreak of the disease in prove the 1989 report con- preme Court, in a case in- British beef. Oprah said, “It tained false statements. Also volving an antitrust suit, has just stopped me cold in reaction to the Alar scare, holding that petitioning ac- from eating another food industry lobbyists tivity is shielded from liabil- burger!” Following the launched a campaign to get ity as long as it is genuinely show, live-cattle prices at state legislatures to enact aimed at procuring favor- the Chicago Mercantile Ex- laws restraining public re- able government action.19 change sank rapidly. Later, marks about foods that Texas cattleman Paul F. could have a devastating ef-

Engler and others filed suit fect on the industry.

○○○○○○○○○○○○○○○ States enact laws to recover damages under Among the many prob- against product libel the state’s 1995 food-dispar- lems with food-disparage- agement laws. ment laws is the fact that no The food and produce in- Food-disparagement laws one can decide what “sound dustry has adopted a varia- came on the heels of a scare science” means in relation tion of the SLAPP concept, over Alar, a chemical used to the laws. Ann Oldenburg using state laws to hold li- to keep apples fresh. In of USA TODAY reported that able individuals and groups 1989 apple growers claimed thalidomide and DDT were who publicly raise questions a loss of $130 million be- once endorsed by science about the safety of food cause of reports of a link be- but were later found to products. Instead of relying tween Alar and cancer aired cause birth defects and can- on existing law, the agricul- on CBS’s “60 Minutes.” cer, respectively.20 The ture and chemical industries Washington state apple threat of a food-disparage- are pressing state legislatures growers filed suit against ment suit can affect almost

to pass bills that explicitly “60 Minutes,” but the Su- anyone. Some writers have

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mused that former Presi- that it has become an ille- may not represent prisoners dent George Bush could gitimate agent of social or certain groups of immi- have been sued under such change, instead of a dis- grants. laws for making his famous penser of retail advice to These restrictions were disparaging remarks about poor people with legal prob- challenged in court by at broccoli. As Sierra Club lems.” least five LSC offices in dif- magazine writer Paul The vast majority of legal ferent cities. In one case, a Rauber stated in his 1995 services are resolved rule that prevented LSC at- article, “Vegetable Hate through mediation, admin- torneys from challenging Crimes,” “If you do not istrative proceedings or ne- welfare-reform measures have anything good to say gotiated settlements. LSC was ruled unconstitutional about fruits and veg- assists clients with a host of by U.S. District Judge Alan etables... you had better not local transactions, including Kay in Hawaii in February say anything at all, or else government benefit pro- 1997.22 Kay’s decision cited the produce industry will grams, evictions, divorces, the First Amendment right sue you for every penny and spousal and child-abuse to petition the government you’re worth.” problems. Dorothy Lohman for redress of grievances and of the LSC office in Wash- said that the restriction at

76 ington, D.C., says, “Our of- issue would prevent legal-

○○○○○○○○○○○○○○○ Legal services fices are part of the commu- services offices from provid- and petition rights nity. LSC boards around the ing input on the welfare de- country are made up of lo- bate.23 Although this “The legal system is just cal people who have real- decision officially applies now beginning to absorb ized that we do bow to local only to the Legal Aid Soci- the impact of a range of ac- decision-making.” ety of Hawaii and four LSC tions Congress took this Despite widespread suc- offices in California and year, in bills signed by Presi- cesses, LSC continues to Alaska, it could have signifi- dent Clinton, to limit access wage an annual battle for cant implications if it is ap- to the courts by poor funds with some members pealed and upheld. people,” Linda Greenhouse of Congress who have

reported in The New York sought its extinction. In

○○○○○○○○○○○○○○○ 21 Times in 1996. A 1996 law 1995 and 1996, funding for Impact of new laws barred attorneys in federally the Legal Services Corpora- to deter terrorism financed legal-services of- tion was cut by nearly a fices from handling class-ac- third, and a series of new re- Legal immigrants constitute tion lawsuits and required a strictions on what LSC approximately 4% of the legal-services lawyer in Tuc- could do for its clients— U.S. population. They are son, Ariz., to withdraw from with federal and nonfederal the people the United States a case concerning enforce- funds—was imposed. Under has invited to stay perma- ment of child-support regu- the new rules, legal services nently and should be distin- lations two months before it attorneys can no longer use guished from nonimmi- was to be reviewed by the LSC funds to participate in grant visitors (students, Supreme Court. Greenhouse class-action lawsuits and business travelers, tourists regarded this curb as “the may not communicate with and others) and illegal im- culmination of years of local, state or federal offi- migrants. The Supreme Congressional hostility to- cials or regulators about Court has never ruled di- ward the Legal Services Cor- regulations affecting their rectly on whether immi-

poration, fueled by the view clients. Additionally, they grants have the same First

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Amendment rights as sanctions on those who pro- rorist” groups; the court American citizens, although vide humanitarian aid to a may review a secret record one decision stated as much foreign organization labeled of the State Department, indirectly.24 In the 1990s, ‘terrorist’ by the Secretary of but the alleged “terrorist” is the rights of legal immi- State.”26 He also points to entitled only to a summary grants have been one of the other constitutional flaws in of the record. How can this casualties of the federal the Antiterrorism Act, in- person defend against evi- government’s effort to crack cluding its failure to define dence he or she cannot see? down on domestic terrorism. “In some cases,” The New York Times observed, “the [new] law seeks to If the government can try people in block individuals from going to court to challenge secret proceedings, this could cast a their deportations. Immigra- tion officers can pick up substantial chill on political activities. people on the street and de- tain and deport them without a hearing if they cannot what “foreign” means in And, if the government can 77 prove they entered on a visa this context, which enables try people in secret proceed- or have been here for two increased surveillance and ings, this could cast a sub- years.”25 After the bombing harassment by the INS. stantial chill on the political of the Alfred P. Murrah Fed- Theoretically, under the activities of those who sup- eral Building in Oklahoma AEDPA, a domestic group port groups the administra- City in 1995, Congress en- with one foreign member tion dislikes. acted the Antiterrorism and could be designated “terror- It is not a theoretical risk. Effective Death Penalty Act ist” if it engages in illegal Since 1987 seven Palestin- of 1996 (AEDPA). Although activity. Additionally, the ians and a Kenyan (known this antiterrorism law re- AEDPA is devoid of any as the “L.A. Eight”) who are ceived strong public sup- meaningful judicial review. associated with the Popular port, an inspection of the Faced with a challenge to a Front for the Liberation of legislation reveals a darker “terrorist” designation, the Palestine and are repre- side. Many of the methods secretary of state may assert sented by David Cole have prescribed by the bill to that the reasons for the des- fought the government’s at- combat terrorism conflict ignation were based on a tempts to have them de- with First Amendment classified record, making reported. In June 1997 a fed- rights guaranteed by the view virtually meaningless. eral appellate court in Constitution. The Illegal Immigration California decided that the According to Georgetown Reform and Immigration group had been targeted by University law professor Responsibility Act of 1996 the INS because of the David Cole, “the two most makes it more difficult to group’s participation in con- troubling provisions of the challenge the “terrorist” stitutionally protected ac- AEDPA authorize the gov- designation and, to cap this tivities, including ernment to deport immi- serious denial of due pro- speechmaking and the dis- grants based on secret evi- cess, the AEDPA sets up a tribution of information on dence not disclosed to the special court to handle de- behalf of the Palestinian immigrant and to impose portation proceedings of cause.27

criminal and immigration suspected members of “ter-

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○○○○○○○○○○○○○○○ Assuring the public’s the requester, has the bur- Daniel Moynihan (D-N.Y.) to right to know den of justifying any of the explain the need for legisla- exemptions.29 It has not tion he was sponsoring in Access to government infor- changed the legendary resis- 1997 to put an end to out- mation is a central part of tance by government to re- of-control government se- the right to petition. Infor- veal information. FOIA re- crecy. Around the same mation gathered and dis- quests face long delays and time, George Herring, a his- seminated by the govern- plain bureaucratic resis- torian who had served on a ment is used by all sectors of tance, but the right of access Central Intelligence Agency society for a wide variety of is enforceable. panel—which was ostensibly purposes, ranging from crop Nearly 600,000 FOIA re- created to examine and then forecasts to economic analy- quests are filed annually. Al- release information about ses about employment, re- though just a small portion the agency’s covert opera- tail trade and health care.28 of these are filed by journal- tions—declared that he had Information about govern- ists, the news stories based been “used” to create the ment is perhaps most cru- on responses to these re- impression of openness cial to the public’s ability to quests have led to impor- when, in fact, agency poli- hold government account- tant discoveries about cies and procedures re- 78 able. That principle makes things happening inside the mained heavily biased to- the Freedom of Information government. FOIA requests ward denial of Act inseparable from the have led to amazing stories declassification. rights enumerated in the about government corrup- First Amendment. tion and harassment by the The Electronic FOIA FBI and IRS, and post-World Some of the more pro- Freedom of Information War II experiments involv- tracted FOIA battles of the The Freedom of Information ing the injection of pluto- 1990s have revolved around Act provides a right of access nium into humans. the issue of information in to the records of all federal A major impediment to government-created data- agencies. Before the act was public and press scrutiny is bases. The Electronic Free- passed in 1966—and later excessive secrecy in the fed- dom of Information Act (EFOIA) was enacted in the fall of 1996, after more than five years of legisla- FOIA requests face long delays tive efforts headed by Sen. Patrick Leahy (D-Vt.). The and plain bureaucratic resistance, EFOIA guarantees that the federal government’s elec- but the right of access is enforceable. tronic records will be as accessible to the public as strengthened in 1974— eral government; classifica- paper records. The 1996 leg- there was no law that pro- tion of documents often is a islation expands the defini- vided for public access to way to ensure that those tion of “records” covered by government information. documents will not be re- the act: “Any information One could ask for informa- vealed through an FOIA re- that would be an agency tion, but often the request quest. In 1995 the U.S. gov- record subject to the re- was denied or simply ig- ernment designated 400,000 quirements of this section nored. Since the FOIA was pieces of information Top when maintained by an

passed, the government, not Secret, a figure cited by Sen. agency in any format, in-

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cluding an electronic for- Computerized records mation must be offered in mat.” There had been some For most of the nation’s his- electronic and print for- question as to whether com- tory, information at all lev- mats. A similar confusion puter programming neces- els of government has been exists in many states. In Or- sary to search a database was disseminated predomi- egon, for example, state law considered creation of a nantly on paper. However, requires that copies of document. EFOIA explicitly in recent years there has agency documents be extends the definition of been a rapid and widespread shared with the state li- “search” to include “review adoption of electronic for- brary. However, a number of by automatic means of mats at the federal level, agencies do not think the agency records for the pur- with state and local agencies same law demands that pa- pose of locating those moving in the same direc- per versions of public infor- records which are respon- tion at a slower pace. The mation stored in electronic sive to a request.” use of electronic technology form be supplied, and the The existing 10-day re- provides new opportunities law has not yet been sponse time, which was for accessing government amended to say so. rarely honored by federal information. Over the past A related issue of great agencies, was lengthened to couple of years, an enor- significance for federal and 20 days, and a requirement mous amount of informa- state policy makers is that of 79 was established to give re- tion has been made avail- information equity. In a so- questers an opportunity to able through the World ciety where most of the limit the response time by Wide Web. Dozens of fed- work force and industry in- limiting the request. The eral agencies maintain Web creasingly depend on elec- “exceptional circumstances” sites, including the Securi- tronic information, people time exception will not be ties and Exchange Commis- without electronic access are allowed for agency backlogs sion, which is putting cor- disadvantaged. A central is- or “delay that results from a porate financial filings on sue is the responsibility of predictable agency line. On the legislative side, federal and state govern- workload of requests.” Congress has provided free ments to assure equity of ac- Of greatest importance to access to information about cess to information in elec- journalists is a provision en- legislation through the Tho- tronic form, as well as on titling reporters who dem- mas Web site. paper. onstrate a “compelling At the same time, how- need” to obtain “expedited” ever, many of the key laws Privatization of processing of their requests. relating to public access— government records The compelling-need stan- including the 1895 Printing During the 1980s the dard, which previously re- Act and the 1962 Deposi- Reagan administration lated to government actions tory Library Program—have launched a campaign to re- that were the subject of con- yet to be amended to in- strict public access to gov- temporaneous media cover- clude electronic as well as ernment information under age, was broadened to in- paper information. This has the banners of budget-cut- clude current matters where generated considerable con- ting, deregulation and pa- a reasonable person might fusion about the current ob- perwork reduction. Key data conclude that the conse- ligations of the government collection programs in agen- quences of delaying a re- to provide access to infor- cies such as the Bureau of sponse to a FOIA request mation now being created Labor Statistics were se- would compromise a matter electronically, including the verely curtailed. The federal

of great import. issue of whether such infor- Office of Management and

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Budget moved to reduce the tion in April 1997 that •Government informa- reporting requirements of would update the responsi- tion created or compiled by corporations—the raw mate- bilities of the Government government employees or rial of government informa- Printing Office.30 For ex- at government expense tion on matters such as the ample, Warner spoke of an should remain in the public environment and housing. arrangement “negotiated in domain. The OMB has adopted a secret” between the Na- These five principles set lower profile during the tional Cancer Institute and the parameters for debates 1990s, and mindless budget- Oxford Press in which only about the privatization of cutting is no longer the or- those who paid a $150 sub- federal information. They der of the day. Yet a key scription fee and joined Ox- can be used to formulate threat that emerged in the ford Press Information Asso- goals and restrictions for ad- Reagan era continues to eat ciates could obtain the vanced, digital information away at public access to gov- journal of the National Can- services that are consistent ernment information: cer Institute. The revenues with these maxims for pre- privatization of government from this endeavor do not serving an informed citi- databases. come back to the institute zenry. Along with the comput- to support research, Warner 80 erization of government stated, but go to support State-level privatization records, public officials are Oxfords Press’s nonprofit The privatizers are busy at increasingly turning to the membership program. the state level as well. In private sector to participate Maximum access to gov- many cases the impetus in the management of that ernment information will comes from phone compa- information. Such be achieved only if agencies nies seeking exclusive con- privatization is being pro- within the three branches tracts to distribute govern- moted in the name of effi- of government uphold the ment information to the ciency and cost-cutting, but principles that have pro- public. In Jacksonville, Fla., it raises serious questions tected the framework for infor example, residents can about public access. Similar forming the nation for use a BellSouth dial-up sys- issues are posed when the more than a hundred years. tem to access public infor- government maintains con- These principles, as listed in mation. Ameritech, another trol over the information a 1996 Government Print- Baby Bell providing tele- but begins to charge users ing Office study, are: phone service in Illinois, In- market rates to obtain ac- •The public has a right of diana, Ohio, Michigan and cess. access to government infor- Wisconsin, is offering “Wiping out the record” mation. online service through is how one newspaper ar- •The government has an CivicLink, formed as part of ticle described the way that obligation to disseminate a corporate partnership with access to certain govern- and provide broad public BC Systems Corp. of ment publications such as access to its information. Canada. CivicLink provides the Congressional Record is •The government has an computer access to court, being restricted by means of obligation to guarantee the meetings, property and tax fees or availability only in authenticity and integrity of records, and other types of electronic form. Sen. John its information. public information. Warner (R-Va.) lamented •The government has an Private investors expect the loss of certain materials obligation to preserve its in- to reap billions of dollars in because of privatization formation. future decades as a result of

when he introduced legisla- their public information

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initiatives. Local govern- tion of court records.31 provides detailed informa- ments eager for additional There is a movement tion about CivicLink and revenue have been receptive countering the privatization raises questions regarding to offers by private firms of of public records in other such public/private arrange- free computerization and states, as well. In Iowa, ments. Senny Boone, the systems development in ex- where Ameritech sought but NNA coordinator for this change for their ability to was unable to get exclusive project, explained that the obtain a portion of the ac- rights to sell judicial infor- study will be expanded and cess fees. For example, as a mation for the first 72 released in late 1997 to in- result of corporate lobbying, hours after a case ruling, a clude other contracts giving Indiana adopted a law that 1996 revision of the state’s companies rights to oversee requires public agencies to Open Meetings/Open and set fees for online ser- develop databases, which Records law says that no ex- vices providing access to opened the door for tra charge shall be assessed public information. There Ameritech. for a document that has also will be important in- While computerization been produced by computer sights in a study by the Re- of government information can enhance public access to information, putting 81 control over this process in While computerization can enhance public the hands of private interests creates serious prob- access to information, putting control lems, especially when the contractor is granted an ex- over this process in the hands of private clusive franchise. The principle of equal access is un- interests creates serious problems. dermined by the inclination of private vendors to create software. It also states that: porters Committee for Free- “enhanced” services that are “A public record shall not dom of the Press, released in priced beyond the means of be withheld from the public July of 1997. This state-by- the average citizen. because it is combined with state project examines access This raid on the public data processing software.”32 laws applicable to public trust has not been well pub- Bill Monroe, executive di- records and public meetings, licized. At the state level, a rector of Iowa’s Journalism including how such laws cautionary bell has been Association, said newspaper have been changed to apply rung by journalists, who are publishers were interested to electronic information. among the most avid users in the greater speed and of government information. possible reduction in costs Depository libraries After Ameritech quietly of accessing information Across the country, 1,400 signed exclusive contracts electronically. However, he depository libraries provide with four cities in Illinois, said, “journalists opposed free access to federal docu- the state journalism associa- companies that were trying ments in every state. They tion rallied others in sup- to position themselves as serve as the local link to port of a law enacted in the only source.” government information in 1997 that prohibits a “pub- A 1997 report by the Na- all formats, providing space, lic body” from contracting tional Newspaper Associa- equipment and professional exclusively with another for tion and American Court & assistance. As agencies make

the copying and dissemina- Commercial Newspapers Inc. greater use of electronic for-

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mats, some have limited means little to members of and it shouldn’t be at full their Depository Library dis- the public who have no way price.” Yet she is not sure tribution to paper and mi- to access it. Although an in- that sufficient funds will be crofiche products. Over creasing number of house- forthcoming. “To be frank,” time, this could dramati- holds have home computers Pringle said, “we are being cally reduce the type and with modems, there is a sub- killed by our telecommuni- amount of government in- stantial number of people cations costs. People want formation reaching the pub- who cannot afford such more and more, but libraries lic. Moreover, as in many equipment. For them, the are able to provide less than other areas, the future vital- key to access will be telecom- what both the public and ity of First Amendment munications facilities at pub- the library want.” Lynne rights is threatened by in- lic institutions such as librar- Bradley of the Washington, sufficient budget allocation. ies and schools. D.C., Office of the American For example, of a budget of The Telecommunications Library Association summed nearly $900,000 for 1996- Act of 1996, which deregu- up the hope and fear of li- 1997, the California State lated certain aspects of the braries by saying, “the devil Library, which serves more communications industry, is in the details.” than 100 depository librar- contained a provision that

82 ies, had only $90,000 for was supposed to widen pub-

○○○○○○○○○○○○○○○ purchasing materials such as lic access to online govern- Conclusion indexes and reference ment information by allow- sources needed to support ing libraries and schools to Assembly and petition often the collection.33 obtain discounted connec- are considered “the orphan Strengthening the De- tions to the Internet. On freedoms” of the First pository Library Program is May 7, 1997, the Federal Amendment. But they play of the utomost improtance. Communications Commis- vital roles in the public life Testifying before Congress sion voted to implement a of this nation. Generally, on this subject, on behalf of program providing $2 bil- citizen actions regarding six major library organiza- lion a year for the “wiring” housing, the environment tions, Robert Oakley, direc- of public schools and librar- and a host of other issues tor of the law library at ies. This plan expands a ser- are protected by a frame- Georgetown University, vice through which the work of judicial and admin- stated: “Our two most criti- FCC, in conjunction with istrative laws based on the cal concerns are the public’s state public utility commis- First Amendment rights of ability to locate information sions, will fund telephone assembly and petition. Un- in a distributed electronic service to ensure that fortunately, those freedoms environment and the funda- Internet and World Wide are never secure. mental need to guarantee Web access is available to Threats to democratic that electronic government the poor and those living in speech and action have information will be perma- remote areas. been seen in the spread of nently accessible.”33 It remains to be seen Strategic Lawsuits Against whether this program is, in Public Participation, which

fact, a victory for librarians. target lawful initiatives;

○○○○○○○○○○○○○○○ ‘Wiring’ the nation’s Julie Pringle, a librarian in along with harassment and schools and libraries Fairfax, Va., regards the lat- intimidation, they weaken est discounts as an impor- citizen action. In addition, Even if government informa- tant acknowledgment that First Amendment freedoms

tion is available online, that “libraries need this access for legal immigrants have

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come under increased attack country’s new post-Cold information to the public in the 1990s, through un- War “enemies.” Finally, about its activities, thwart- warranted surveillance and there are serious questions ing the Jeffersonian idea of the passage of antiterrorism today about the federal an informed citizenry and legislation. Immigrants government’s enthusiasm undermining the ability to have been treated as the for providing comprehen- effectively petition govern- sive, accurate and affordable ment. •

1 Thornhill v. Alabama, 310 U.S. 88 16 H.R. 589, “Fair Housing Reform 25 “Hard Times for Immigrants,” The (1940). and Freedom of Speech Act of New York Times, Aug. 6, 1997, edi- 2 NAACP v. Alabama, 357 U. S. 449 1997,” Sec. 821: [The Act shall not torial about recently enacted Ille- (1958). apply to] “any otherwise lawful gal Immigration Reform and Re- 83 3 Keyishian v. Board of Regents, 385 activity engaged in by one or more sponsibility Act of 1996, p. 34. U.S. 589 (1967). persons, including the filing or 26 David Cole, “Blind Decisions 4 NAACP v. Claiborne Hardware maintaining of a legal action, that Come to Court,” The Nation, June Co., 458 U.S. 886 (1982). is engaged in solely for the pur- 16, 1997, p. 21. 5 Timmons v. Twin Cities Area New pose of—(1) achieving or prevent- 27 “Ninth Circuit Skeptical of INS Bid Party, 117 S. Ct. 1364 (1997). ing action by a government entity to Reinstate ‘L.A. Eight,’ ” Metro- 6 West Virginia State Board of Edu- or official, or (2) receiving an in- politan News Company MetNews, cation v. Barnette, 319 U.S. 624 terpretation of any provision of June 24, 1997. (1943). the Act in a court of competent ju- 28 An excellent resource on this topic 7 Baird v. State Bar, 396 U.S. 998 risdiction.” is the American Library (1970). 17 Robert D. Richards, “Suing to Association’s “Less Access to Less 8 Brown v. Socialist Workers ’74 Squelch,” The Washington Post, Information,” compiled by Anne Campaign Committee, 459 U.S. Aug. 16, 1992, p. C1. Heanue of the ALA’s office in 87 (1982). 18 Alexandra Lowe, “The Price of Washington, D.C. 9 Charisse Jones, “Cities Give Cur- Speaking Out,” ABA Journal, Sep- 29 The FOIA exempts nine categories few Laws a Closer Look,” USA TO- tember 1996, p. 48. of information covering: classified DAY, June 27, 1997, p. 3A. 19 City of Columbia v. Omni Out- documents; internal personnel 10 People ex. rel. Gallo v. Acuna, 14 door Advertising, 499 U.S. 365 rules and practices; information Cal. 4th 1090 (1997). (1991). exempt under other laws; confi- 11 David G. Savage and Carla Rivera, 20 Ann Oldenburg, “Warning: You dential business information; in- “Court Upholds Injunction can be sued for insulting veg- ternal government communica- Against Gangs,” Los Angeles Times, etables,” USA TODAY, March 27, tions; personal privacy; law June 28, 1997, p. 1. 1996. enforcement; financial institu- 12 Hutchins v. District of Columbia, 21 Linda Greenhouse, “How Con- tions; and geological information. 942 F. Supp. 665 (D.D.C. 1996); gress Curtailed the Courts’ Juris- 30 Opening Remarks of Sen. John State v. J.D., 86 Wash. App. 501, diction,” The New York Times, Oct. Warner, U.S. Senate Committee on 937 P.2d 630 (1997). 27, 1996, p. 5. Rules and Administration, hearing 13 Jones, p. 3A. 22 Rod Ohira, “Legal Aid Society on legislative proposal to reform 14 George Pring and Penelope Wins Suit Against Spending Re- Title 44, April 24, 1997. Canan, SLAPPS: Getting Sued for strictions,” Honolulu Star-Bulletin, 31 Amendment to Illinois Freedom of Speaking Out (Philadelphia: Temple Feb. 20, 1997. Information Act, 1997. Univ. Press, 1995). 23 Legal Aid Society of Hawaii v. Le- 32 Amendment to Iowa Open Meet- 15 Gordon v. Marrone, 590 N.Y.S. 2d gal Servs. Corp., 961 F. Supp. 1402 ings/Open Records law, 1996. 649, 656 (Sup. Ct. 1992). (D. Haw. 1997). 33 Testimony before the House Sub- 24 Bridges v. Wixon, 326 U.S. committee on Government Man- 135,148 (1945). agement, Information and Tech- nology, Committee on Government Reform and Over-

sight, May 8, 1997.

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Education

he American experi- 12th graders understood ment in self-govern- specific government struc- T ment depends fore- tures and their functions. Young people most on each person’s par- The report’s summary con- ticipating as a citizen—and cluded that, “even by the are growing not just once a year in a vot- 12th grade, civics achieve- ing booth. Being an active ment remained quite lim- up with a citizen means understand- ited in many respects.”1 ing one’s rights and exercis- Problems have been less-than- ing them. To that end, the found among adults, too. A 85 ability of schools to help 1996 survey by the Depart- students understand and ex- ment of Education on adult impressive ercise constitutional free- participation in community doms, particularly those in and political organizations understanding the First Amendment, is of found that only 55% of re- fundamental importance. spondents could correctly of the core This is no easy task in a soci- answer three of five basic ety that often seems to en- questions about American values of courage passivity, apathy government. Among young and sometimes outright adults only 39% could do so. American hostility to civic participa-

tion. ○○○○○○○ ○○○○○○○○ democracy. 5 What is more troubling The civic-education is that detachment from movement civic matters seems to be growing, and young people The need for improved civ- are growing up with a less- ics education has been rec- than-impressive under- ognized for a long time. standing of the core values Since the 1960s, there has of American democracy. evolved a network of educa- One indication of this tors, lawyers, public offi- comes from a national as- cials, foundations and oth- sessment of civic education ers who have worked hard conducted every 10 years to make people better-in- under the auspices of the formed participants in the U.S. Department of Educa- lives of their communities tion. The last such assess- and nation. Together they ment, performed in 1988, continue to design and dis-

found that less than half of tribute materials intended

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to improve learning about pute resolution through Volunteers come from the the exercise of constitu- mock debates, mock trials justice system into the class- tional freedoms. and role playing, with stu- room, and students are sent Charles Quigley has been dents acting as local deci- outside the classroom to the catalyst for many of sion-makers, is particularly witness the law in action in these initiatives. He effective for teaching the their communities. founded the earliest of these importance of the basic The spread of law-related organizations, the Center principles of good citizen- education has been attribut- for Civic Education, in ship,” Clark believes. able, in part, to the encour- 1964, and proceeded to in- The improvements in agement and supply of spire and be a major con- civics education owe much teaching materials provided tributor to projects that de- to the commitment of the by the American Bar velop curricular programs in talented group of educators, Association’s Division for high school civic education, judges and community Public Education. It makes as well as national competi- leaders who are teaching books about the rights and tions involving debate by young people how to use obligations of citizenship, young people about consti- knowledge of the law and including the First Amend- tutional issues. “The train the processes of government ment, available in every 86 [of teaching good citizen- to resolve their own prob- state for students from kin- ship] has gone in two direc- lems. Lee Arbetman, one of dergartners to high school tions,” Quigley observes. the pioneers in law-related seniors, according to Paula “The requirement that civ- education and staff director Nessle, director of this pro- ics be taught in the eighth at Street Law ( formerly the gram at the ABA. and 12th grades has been National Institute on Citi- Judy Cannizaro, a social dropped. If you look at cur- zen Education in the Law) studies teacher in Nashville, riculum today, you see there maintains that much of the Tenn., received funding is nothing. But, individual thinking about new ways of from the ABA in 1992 to schools are doing sophisti- teaching good citizenship implement a law-related cated things.” originated in the civil education program for Met- Those involved in teach- rights, women’s and envi- ropolitan Nashville Public ing about government, ronmental movements of Schools. Lessons cover the American history and con- the 1960s and 1970s. He de- five freedoms of the First stitutional freedoms agree scribes two main elements Amendment and other con- that teaching these subjects of successful law-related stitutional issues. They are used to be dull and distant teaching as follows: designed to involve parents from the lives of students. 1) The programs focus on as well as students. Describ- Todd Clark, head of the law, the legal system, and ing her experience, Constitutional Rights Foun- the fundamental principles Cannizaro says that interest dation in Los Angeles, at- and values on which our in the study of rights in- tributes the marked im- constitutional democracy is creased significantly when provement in civics based. classes began to focus on ba- education to a shift in in- 2) Lessons are interactive sic questions such as, “Why struction toward emphasis and explicitly aimed at de- can’t you do certain on what’s happening in the veloping in young people things?” and “What are community and to the the skills needed to use your rights?” “This brought greater involvement of law- their newly acquired infor- things home on a personal yers in the classroom. “En- mation. basis,” Cannizaro said.

gaging young people in dis-

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The Department of Jus- and engage the student. tice Office of Juvenile Jus- Those involved in develop- LEADING CIVIC EDUCATION tice and Delinquency Pre- ing educational reading and PROGRAMS vention has funded audiovisual material frown organizations providing upon the use of standard American Bar Association National Institute for Citizen law-related education since textbooks. “The traditional Division of Youth Education Education in the Law 1979. Specifically, its Youth way of teaching history and 541 North Fairbanks Court 711 G Street SE Chicago, IL 60611 for Justice program backed government gets in the way Washington, DC 20003 312-988-5735 202-546-6644 law-related education of teaching policy and gov- through funds distributed to ernment. Textbooks aren’t Center for Civic Education National Council for five organizations: the as interested in contempo- 5146 Douglas Fir Road Study of Social Studies American Bar Association rary issues as they need to Calabasas, CA 91302 3501 Newark Street, NW 800-350-4223 Special Committee on be to interest today’s stu- Washington, D.C. 20016 202-966-7840 Youth Education for Citi- dents,” says Todd Clark. Close Up Foundation zenship, the Center for Some organizations have 44 Canal Center People for the American Way Civic Education, the Consti- designed teaching materials Alexandria, VA 22314 2000 N Street, NW tutional Rights Foundation, for all levels. The First 703-706-3300 Washington, D.C. 20036 the National Institute for Amendment Congress de- 202-293-2672 Constitutional Rights veloped two guides, one for 87 Citizen Education in the Foundation Phi Alpha Delta Public Law, and Phi Alpha Delta kindergarten through grade 601 S. Kingsley Drive Service Center Public Service Center. Ac- four and one for grades five Los Angeles, CA 90005 P.O. Box 3217 cording to Frank Porpotage through 12, called Education 213-487-5590 Granada Hills, CA 91394 of the Justice Department, for Freedom. These guides, 800-835-4865 Educational Information the amount that Congress now administered by The and Resource Center has granted for these groups Freedom Forum First 606 Delsea Drive peaked in the early 1990s at Amendment Center, present Sewell, NJ 08080 $3.2 million and has fallen issues that relate to student 609-582-7000 since then to $1 million in experience and to the cur- 1997. In 1998, only riculum of each grade level. $500,000 will be available The Center for Civic Edu- for distribution among cation set a high standard competition with state cham- these organizations. “We when it started its “We the pions traveling to Washing- think [law-related educa- People” civic education pro- ton, D.C. for the “We the tion] has shown it works gram in 1987. The center People” national finals. and are ready to do more, provides instructional mate- In addition to materials but this depends on Con- rials for upper elementary, for teaching basic history gress,” Porpotage said. middle and high schools and civics courses, there are about the history and prin- print and video media that

ciples of constitutional de- tie learning about rights to

○○○○○○○○○○○○○○○ Teaching materials mocracy, including the First the situations young people Amendment. Upon comple- face. The Constitutional Improving the study of a tion of the course, students Rights Foundation, for ex- range of subjects, including receive a certificate of ample, publishes From the the framework of govern- achievement signed by their Newsroom to the Courtroom: ment and exercise of consti- member of Congress or other Lessons on the Hazelwood tutional rights, depends prominent official. At the Case, which deals with upon the availability of ma- high school level, students questions relating to the

terials to guide the teacher participate in a nationwide rights of student journalists.

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○○○○○○○○○○○○○○○ “The extent to which Government support and government. Another education about the Consti- is flagging goal, relating to adult lit- tution has improved varies,” eracy and lifelong learning, says Lee Arbetman of Street Despite these notable initia- calls for giving each adult Law. “In the state of Con- tives, there seems to be a “the knowledge and skills necticut, every school dis- spirit of resignation com- necessary to exercise the trict is its own fiefdom. mon among people in- rights and responsibilities of North Carolina has a state- volved in civics education. citizenship.” wide approach. It’s hard to “It shouldn’t strike anyone

get a single picture of the na- as ironic that in the late

○○○○○○○○○○○○○○○ tion.” 1990s, there is no money International civics Nissan Chavkin of the from the government to education Constitutional Rights Foun- teach children about the dation emphasizes the need government,” says Nissan Many Americans believe to be sure the issue raised is Chavkin. that their form of democ- related to local needs: “Dif- During the final decade racy is a model for the rest ferent states do different of the 20th century, there of the world. Thus, it is not things. The network [of civ- have been steep cutbacks in surprising that the collapse 88 ics education] fluctuates in federal funding for key proof totalitarian regimes in response to what people grams. The federally funded the former Soviet bloc has need, and it depends on surveys of educational brought with it U.S. efforts what is the issue on the achievement are expensive to export American civic ground.” and must be authorized by values. One of the most in- Robert Leming, a former Congress. Although numer- novative of these is Civitas, teacher who now works at ous members of Congress an international civic educa- the Indiana Program for have endorsed educational tion exchange Program. An Law-Related Education, programs, funding remains informal network of educa- based at Indiana University, woefully insufficient. Never- tors and government offi- believes that “to get teach- theless, the federal govern- cials in the United States ers or parents or anyone in- ment is involved in some and foreign countries, Civi- terested, materials about far-reaching civic education tas has programs in Bosnia government have to be in- in this country and abroad, and Herzegovina, the Czech fused into the curriculum even as it scrimps on other Republic, Hungary, Latvia, and raise issues that are im- important educational Poland and Russia. It is portant to their communi- projects. sponsored by a consortium ties.” As an example, Over the past decade of government and private Leming suggested the con- there has been growing con- organizations and adminis- troversy over whether Joe sensus on the need for na- tered by the Center for Civic Camel advertising was ditional educational goals. In Education, with support rected at enticing young 1994 Congress passed the from the Department of people to smoke cigarettes. Goals 2000: Educate Education and the United He mentioned two possible America Act. Its provisions States Information Agency. questions: “Can the govern- include the creation of the The primary aims of this ment step in? Does that in- National Educational Goals program are to help educa- fringe on the First Amend- Panel. Among the goals set tors from former Eastern ment rights of the tobacco by the panel is ensuring bloc nations adopt effective companies?” 2 that each student demon- civic-education programs

strates competency in civics and to encourage research

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on the effects of civic education in developing the ONLINE EDUCATION ABOUT THE FIRST AMENDMENT knowledge, skills and traits of public and private char- Educational efforts relating to democratic values can be found in cyberspace as well. Users of the Internet tend to be strong believers in free speech, so it is not surprising that the online world con- acter needed for constitu- tains a great deal of information about First Amendment issues. Here is a list of only some of the tional democracy. At the many sites that provide access to valuable information relating to First Amendment freedoms: same time, educators are working to create teaching American Civil Liberties Union materials for students in the http://www.aclu.org United States that will give American Library Association them a better understand- http://www.ala.org ing of these emerging constitutional democracies. Chronology of U.S. Historical Documents

http://www.law.uoknor.edu/ushist.html ○○○○○○○

○○○○○○○○ Electronic Frontier Foundation Communities linking http://www.eff.org via computers Electronic Privacy Information Center Local groups all over the http://www.EPIC.org 89 United States have been First Amendment Cyber-Tribune building online networks, http://www.w3.trib.com/FACT which should play an important role in increasing Free! The Freedom Forum Online civic knowledge. The net- http://www.freedomforum.org works enable citizens to fur- Freedom of Information Listserv ther effective advocacy http://web.syr.edu/~bcfought through group association in this era of electronic in- Project Censored formation. Community http://censored.sonoma.edu “nets” overcome time and Reporters Committee for Freedom of the Press distance limitations and put http://www.rcfp.org groups in contact with others holding common inter- Step-by-Step Guide to Using the Freedom of Information Act ests and problems. These gopher//gopher.nyc.pipeline.com:6601/00/publications/reports/foia networks often result in the Student Press Law Center greater sharing of organiza- http://www.splc.org tional resources. Inherent in such nets are University of Missouri FOI Center possibilities for strengthen- http://www.missouri.edu/~foiwww/laws.html ing citizen action on various issues. In fact, computer networks provide an independent base for citizen action, at a time when digital information services are becoming more commercial

and centralized.

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Community nets are lim- ing lights, says that its goals versity of Michigan School ited in areas where the law include “putting libraries of Information and Library has not caught up with first; connecting libraries Studies. The FCNI serves a technology. Schools and li- with the agendas of other diverse population of braries, which are often the organizations and making 140,00 people. Its main ob- bases of these nets, must ex- access to government infor- jective is to be a tool for ercise special caution re- mation a priority.” building collaborative rela- garding the transmission of Currently, MetroNet tionships with local agen- certain words and images sponsors its own Web site, a cies and groups. With this because of uncertainty bulletin board and several in mind, it endeavors to about content considered listservs. Everything on this teach computer skills and indecent, dangerous, or site is intended for librar- integrate digital systems defamatory and who will ians, information mavens with other kinds of com- bear legal responsibility for and book lovers. MetroNet munity resources at social online misconduct. makes its own publications service centers such as the A publication released by available online: the weekly Agency on Aging and hos- the Benton Foundation in MetroFax and monthly pitals in the area. May 1997, Local Places, Glo- MetroBriefs. The site can The Flint Public Library 90 bal Connections, focuses on also be used for creating has been centrally involved the importance of libraries one’s own site. Its in this project and has done in the growth of community Webmasters provide an an- much to promote computer nets and gives a detailed ac- notated list of the best re- literacy. “We soon discov- count of ways that founda- sources for designing and ered that we have the po- tions, government agencies implementing Web sites. tential through the Internet and private corporations The Librarian’s Homepage to access, organize, and re- have supported these impor- Creator is an interactive trieve information from tant 21st century pro-de- tool used in MetroNet’s around the world,” says Pro- mocracy initiatives. homepage workshops. fessor Joan Durrance, direc- The following describes MetroNet also is the tor of the university’s three community nets in home of the Minnesota School of Information and Minnesota, Michigan and Coalition on Government Library Studies, who works Washington, D.C. Information. It allows state with students and people agencies to interact on an from a variety of area orga- MetroNet ongoing basis with libraries nizations to assist the MetroNet, connecting and has led to the expan- growth of “people net- people at libraries, schools sion of other online and works.” and media centers in the print resources for obtaining Minneapolis/St. Paul region, access to government infor- HandsNet has been active online for mation. HandsNet is based in Wash- more than a decade. It offers ington, D.C. Its executive a good example of the ways The Flint Community director, David Goldsmith, that local online commu- Networking Initiative describes this network of nity building can lead to This initiative, based at the non-profit grassroots organi- new collaborative relation- Flint Public Library, takes zations as “an Intranet for ships, both online and away maximum advantage of the those working in the public from the computer. available resources and service community.” Mary Treacy, MetroNet drive for learning offered HandsNet is a membership-

founder and one of its guid- by the library and the Uni- funded organization of

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more than a hundred All together, the hun- flowering of programs meant groups. Its online network dreds of community com- to reawaken in Americans an provides reports and re- puter-linking initiatives now appreciation for the prin- sources about a variety of lo- under way are reinforcing ciples of our democratic sys- cal issues. These include the country’s commitment tem. Local groups building community and economic to free and meaningful po- online networks, aided by li- development, child abuse, litical action and demon- braries and schools, are serv- drug and alcohol addiction strate the First Amendment ing as the on-the-site van- and anti-poverty programs. in action. guard of American The information on democracy. These groups,

HandsNet is provided by ex- raised in a print world, are

○○○○○○○○○○○○○○○ perts in these fields and can Conclusion bringing the First Amend- be used to develop plans on ment rights of petition, as- a given topic. A partial list Abraham Lincoln’s pro- sembly and association into of HandsNet online features nouncement that the United the next century. But the includes: Members Ex- States is a country governed power and promise of those change, which can be used “by the people and for the rights depend less on the for sharing an inquiry or people” has little force with- tools of technology than the announcement; Alert!, with out widespread participation willingness of Americans to 91 notices and calls for action; by all Americans in the civic re-engage in the public life of and Housing and Commu- life of their communities and their society. How much im- nity Development, a re- the nation. According to a va- portance they place on pro- source for nonprofit hous- riety of indicators, the degree tecting and exercising those ing developers and of such participation has rights will have a profound neighborhood groups. been on the decline. At the impact on the future of our same time, there has been a democracy. •

1 The Nation’s Report Card, 1988, U.S. Department of Education. 2 In July 1997 cartoon figure Joe Camel was “retired” by RJR Nabisco. This occurred after the

interview with Leming in May.

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Attitudes about the First Amendment By Ken Dautrich

lections and cam- Amendment issues. It is the paigns, significant first significant inquiry into E international events, public opinion on the First Americans terrorism, political scandals, Amendment since 1991, when corporate mergers, natural di- Robert Wyatt reported on a se- express a sasters and high-profile crimes ries of polls finding that, from are commonly the subject of the perspective of the Ameri- strong skep- public opinion polls. They are can public, “it is apparent that events that most often have a free expression is in very deep ticism about beginning and an end. Their trouble.” Before Wyatt’s re- 93 high visibility in the news and search, there were two notable government larger degree of public interest comprehensive studies of atti- make polls on these topics tudes about civil liberties— newsworthy in and of them- one conducted in the mid- restricting selves. Public opinion polls on 1950s during the McCarthy enduring issues, more abstract era by Samuel Stouffer, and their First issues, and issues generally not one in the late 1970s by typically discussed at dinner, Herbert McCloskey and Alida Amendment at work or in the news are far Brill. less common. The Freedom Forum poll freedoms. Such is the case with polls on the First Amendment was on the First Amendment. Al- conducted by telephone at the 6though from time to time an University of Connecticut event directly related to a First with 1,026 American adults. Amendment topic receives Interviewing was conducted some attention in national between July 17 and August 1, polls—such as ABC’s use of de- 1997. Sampling error is +3% at ceptive practices in investigat- the 95% level of confidence. ing Food Lion supermarkets— This Freedom Forum poll it is uncommon to find sought to provide a compre- extensive public opinion polls hensive picture of American on First Amendment issues. opinion on the First Amend- This chapter presents the ment in contemporary society findings from a new Freedom and to trace changes in opin- Forum poll that comprehen- ion about the First Amend- sively measured public opin- ment wherever possible. More ion on a wide variety of First specifically, the survey ad-

Professor Dautrich is Director of the Center for Survey Research and

Analysis at the University of Connecticut.

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○○○○○○○○○○○○○○○ dressed the following First Summary of findings rights. While large majorities Amendment issues: feel that religion, speech, and •How important are First The Freedom Forum poll finds press rights are essential to Amendment freedoms to that Americans express strong American society, significant Americans? support for the freedoms guar- minorities are not willing to •How do First Amendment anteed by the First Amend- relegate these rights to the sta- freedoms compare in impor- ment. While there are some ar- tus of “essential.” In the area tance to other constitutionally eas of concern, on the whole of speech rights, the American protected rights? the First Amendment is alive public is quick to support re- •Is support for the First and well—at least from the strictions, particularly when Amendment holding steady, perspective of the American sexually explicit and/or offen- or is it changing? public. sive material is at issue. On •Would Americans vote to For example, most Ameri- free press, strong majorities ratify the First Amendment if cans feel that First Amend- disagree that the use of hidden they were voting on it today? ment freedoms are not just cameras should be allowed. •What do they feel about important, but are “essential” And on religion, while most the amount of freedom cur- American rights. Eight in 10 Americans are willing to ex- rently afforded by the First feel this way about freedom to tend freedom to worship 94 Amendment’s protections of practice religion, seven in 10 rights to groups regardless of religion, speech, press, assem- about freedom of speech and how extreme their beliefs are, bly and petition? about the right to practice no most also are willing to agree •Do Americans think they religion, six in 10 about free- with allowing practices that have too much, too little or dom of the press, and more blur the line between church about the right amount of than five in 10 about the and state. freedom in each of these ar- right to assemble and peti- Another healthy sign for eas? tion. Further, fewer than one the First Amendment is the •To what extent would in 10 Americans say that any strong support it would have if Americans restrict First First Amendment freedom is it were voted on by Americans Amendment freedoms? not important. today. Fully 93% of Americans •Are Americans more pro- Another significant finding say they would vote to ratify tective of their own rights of this study is that Americans the First Amendment if they than the rights of others? express a firm appreciation for were voting on it now. •How do Americans feel the “slippery slope” argument The perceived importance about amending the First when it comes to First Amend- and strong support for the First Amendment? ment rights. They understand Amendment may reflect •What are Americans’ ex- that once restrictions are Americans’ sense that current perience with and opinions placed on these rights it be- applications of these freedoms about First Amendment edu- comes easier to place further are neither too restrictive nor cation in the schools? restrictions on them. Also, too lax, but about right. Seven •How free do Americans feel some of our findings suggest in 10 say that in contemporary to express themselves in differ- that Americans have, over the society Americans have about ent situations, such as at work past two decades, become the right amount of freedom to and in the classroom? more supportive of First speak freely, and the same Amendment rights. To be sure, number say the Americans however, there are findings have the right amount of reli- that suggest that the American gious freedom. In both of these public may not wholeheart- areas, two in 10 say there

edly endorse First Amendment should be more freedom and

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only one in 10 says there ditional newspapers, that few can name many of the should be less. news sources should be al- rights included in the First Opinion is less favorable lowed to be kept confidential, Amendment (49% name for freedom of the press. and that the media should be speech, 21% religion, 11% While half say the press has allowed to publish govern- press, 10% assembly, and 2% about the right amount of ment secrets. petition). freedom, 38% say it has too •On freedom of speech, Also of concern is the find- much. nine in 10 say Americans ing that as many as three in Americans express strong should have the right to ex- 10 people say they have found skepticism about having gov- press unpopular opinions, and themselves in situations re- ernment place restrictions on majorities feel that companies cently where they did not First Amendment freedoms. should be allowed to advertise voice their opinion because Nearly nine in 10 agree that tobacco and alcohol. they thought they might in once any restriction is placed While the First Amend- some way be punished or pe- on a freedom, it becomes ment enjoys strong support nalized for doing so. While much easier—and is therefore and affection from the Ameri- most Americans feel they can dangerous—to place further re- can public, the Freedom Fo- express themselves without strictions. Also, 50% of those rum poll suggests that there fear, a substantial minority polled believe that government are some areas where Ameri- sometimes feel they cannot. 95 should not be involved in rat- cans would restrict these free- As the rest of this chapter ing television programs, com- doms. This is particularly true will show, many findings sug- pared with 46% who thought on freedom-of-speech issues gest positive opinions about it was all right. involving offensive or sexually the First Amendment. But Another sign that the First explicit material. For example, other findings raise concerns Amendment is healthy is that majorities of Americans dis- about the future of the First the majority do not support agree with allowing the media Amendment. The dominant two proposed constitutional to broadcast nudity or allow- impression in this Freedom amendments that would alter ing sexual material on the Forum poll is that while most it. While most Americans dis- Internet. Also, on a right-to- Americans express strong sup- agree with flag-burning as a petition issue, seven in 10 do port for the idea of First form of political speech, only not think that groups should Amendment freedoms, they 49% say a flag-burning be allowed to hire people to are less supportive when con- amendment should be influence government officials fronted with specific instances adopted. Also, while majori- or policies. of the First Amendment in ac- ties agree with allowing prayer The poll does suggest cause tion. • in the schools under certain for concern about how well circumstances, only 42% Americans are educated about would favor a school-prayer First Amendment topics. Only amendment to the U.S. Con- half of Americans say they stitution. have even had a class that Other important poll find- taught something about the ings further support Ameri- First Amendment. Further, cans’ supportive feelings about only three in 10 give positive the First Amendment: grades to the job American •On freedom of the press, schools are doing in teaching strong majorities say that tab- about the First Amendment. loid papers should have the Evidence of poor education in

same protections as more tra- this area is the finding that

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Rights we cherish most Freedom of speech 50% 50% Freedom of speech is by far the most important of rights and freedoms Freedom of religion 14% 14

that Americans cite when asked. Right to bear arms 9% 9

Freedom of the press 5% 5

Freedom from religion 5% 5

Freedom of assembly 4% 4

Right to fair trial 2% 2

Other 11% 11 % 10 20 30 40 50 60 70 80 90

96 Few can list the Speech 49% 49% five freedoms Only 2% of Americans can name all Religion 21% 21 five First Amendment freedoms, with Press 11% 11 speech and religion the most often cited. Assembly 10% 10

Petition 2% 2

% 10 20 30 40 50 60 70 80 90

Support for the First Amendment Even though few can name the specific Don’t know 3% freedoms of the First Amendment, the vast majority of Americans would ratify Approve 93% the Amendment again if asked.

Disapprove

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90% Putting limits on speech Expressing popular opinion 9% Although supporting the idea of free speech, when asked their opinions about whether Broadcasting nude pictures 13% 27% specific instances of offensive speech should be allowed, most respondents would readily Placing sexually explicit 26% limit speech. material on Internet 72%

AGREE DISAGREE % 10 20 30 40 50 60 70 80 90

Allowing burning or 20% Little support for flag-burning defacing of flag 78% The majority of Americans don’t think people should burn or deface the flag as a political Amending Constitution 49% to prevent it 49% statement, but they are evenly split on whether

AGREE DISAGREE % 10 20 30 40 50 60 70 80 90 the Constitution should be amended to prevent it.

97 Have no place in 1979 48% More latitude for books school libraries 1997 38% In the past two decades, Americans have

Should be permitted 1979 42% become more tolerant of libraries having in libraries 1997 68% novels that describe explicit sex. % 10 20 30 40 50 60 70 80 90

Public has right to watch 1979 39% Control of TV opposed what it pleases 1997 63% Americans are not as willing to have Protect against violent 1979 46% government control television programming, or obscene content 1997 33% especially violent and indecent content, as % 10 20 30 40 50 60 70 80 90 they were two decades ago.

Allow newspapers to 79% Press has mixed support publish freely 17% Americans give majority support to some

Allow press to keep 85% press practices but would restrict others. sources confidential 12%

Allow TV to project 31% winners of elections early 68%

Allow journalists to use 31% hidden cameras 66%

AGREE DISAGREE % 10 20 30 40 50 60 70 80 90

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ppy The press and privacy Allow photo of celebrity 1979 34% Attitudes about the press invading with prostitute 1997 41% personal privacy by taking a photograph of Don’t allow photo of 1979 49% a public figure with a prostitute have not celebrity with prostitute 1997 51% % 10 20 30 40 50 60 70 80 90 changed appreciably in the last two decades.

Freedom and Displaying religious symbols 47% religious practices on public property 48%

Many Americans would ignore Forming religious clubs 71% in public schools 27% Supreme Court rulings concerning the

separation of church and state to allow Allowing public school 68% teacher to lead prayers 38% certain religious practices in public settings.

98 Allowing majority to have 80% graduation prayers 19%

AGREE DISAGREE % 10 20 30 40 50 60 70 80 90

School prayer amendment Although a majority of Americans support prayer in public schools, they would not amend the Constitution to permit communities to decide on school prayer. 42% 56%

Pass amendment to Don’t pass allow communities to amendment

decide on prayer

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Americans wary Dangerous to restrict 83% speech 14% of restrictions Large majorities believe it would be Dangerous to restrict 86% religion 11% dangerous for the government to limit

Dangerous to start 84% certain rights because it might lead to restricting rights 13% restricting other rights. AGREE DISAGREE % 10 20 30 40 50 60 70 80 90

Rights education Schools do an gets low grades excellent job 4% U.S. schools do a poor job of educating A good job Americans about their First Amendment 26% 99 A fair job freedoms, a majority of Americans says. 41%

A poor job 22%

Yes, just once 6%

Americans speak up Most people report that they have no fear of voicing their opinions, but about one in

No three do. Responses to the question of 70% whether people had feared penalty or punishment if they had spoken up.

17% Yes, a few times 7%

Yes, frequently

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100

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Survey Responses ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ I. Knowledge and Opinions about the First Amendment and American Society

1. As you know, the U.S. Constitution provides citizens many rights and freedoms. Are there any particular rights or freedoms that you feel are most important to American society?

5% Freedom of the press 50% Freedom of speech 101 5% Freedom not to practice religion 14% Freedom to practice religion 1% Right to petition 4% Right of assembly/Right to association 9% Right to bear arms/own guns 2% Right to trial by jury/fair trial 1% Right to privacy 1% Freedom from unreasonable search and seizure a 0% Right to protest 11% Other 30% Don’t know/refused

2. As you may know, the First Amendment is part of the U.S. Con- stitution. Can you name any of the specific rights that are guaranteed by the First Amendment?

11% Freedom of the press 49% Freedom of speech 21% Freedom of religion 2% Right to petition 10% Right of assembly/Right to association 7% Other

37% Don’t know/refused

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3. The U.S. Constitution protects certain rights, F. You have the right to own firearms. but not everyone considers each right important. I am going to read you some rights guaranteed by 33% Essential the U.S. Constitution. Please tell me how impor- 31% Important tant it is that you have that right. 33% Not that important 3% Don’t know/refused A. You have the right to assemble, march, protest or petition the government about causes and is- G. You have the right to privacy. sues. 78% Essential 56% Essential 21% Important 36% Important 1% Not that important 7% Not that important 1% Don’t know/refused H. You have the right to a fair trial.

B. You have the right to speak freely about what- 86% Essential ever you want. 14% Important

102 72% Essential 4. The First Amendment became part of the U.S. 27% Important Constitution more than 200 years ago. This is 1% Not that important what it says: “Congress shall make no law respect- ing an establishment of religion or prohibiting C. You have the right to practice the religion of the free exercise thereof; or of abridging the free- your choice. dom of speech or of the press; or the right of the people peaceably to assemble, and to petition the 81% Essential government for a redress of grievances.” Imagine 18% Important that the country was again voting to ratify the 1% Not that important First Amendment. If you were voting on whether or not to approve it, how would you vote? D. You have the right to practice no religion. 93% Approve it 66% Essential 4% Not approve it 24% Important 3% Don’t know/refused 9% Not that important 1% Don’t know/refused 5. How closely do you pay attention to issues involving the First Amendment’s freedoms of E. You have the right to be informed by a free speech, press, religion, assembly and petition? press. 39% A lot 60% Essential 45% Some 33% Important 9% Just a little 6% Not that important 6% Not much at all

1% Don’t know/refused

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6. Please tell me if you agree or disagree with the 10. Do you think that imposing curfews on young following statement: Americans don’t appreciate people violates their First Amendment rights or not? First Amendment freedoms the way they ought to. 19% Violates rights 47% Strongly agree 78% Not violate rights 29% Mildly agree 4% Don’t know/refused 12% Mildly disagree 8% Strongly disagree 11. Overall, would you say that the moral values 4% Don’t know/refused in American society are improving, deteriorating, or aren’t they changing all that much? 7. Even though the U.S. Constitution guarantees freedom of the press, government has placed 6% Improving some restrictions on it. Overall, do you think the 78% Deteriorating press in America has too much freedom to do 14% Not changing what it wants, too little freedom to do what it 2% Don’t know/refused wants, or is the amount of freedom the press has about right? 12. Please tell me whether or not you have done any of the following in the past year: 38% Too much freedom 103 9% Too little freedom A. Displayed an American flag at your home. 50% About right 3% Don’t know/refused 62% Yes 38% No 8. Even though the U.S. Constitution guarantees freedom of speech, government has placed some B. Voted in an election. restrictions on it. Overall, do you think Americans have too much freedom to speak freely, too little 80% Yes freedom to speak freely, or is the amount of free- 20% No dom people have to speak freely about right? C. Participated in a political rally. 10% Too much freedom 18% Too little freedom 14% Yes 68% About right 86% No 4% Don’t know/refused D. Attended a public meeting. 9. Even though the U.S. Constitution guarantees freedom of religion, government has placed some 58% Yes restrictions on it. Overall, do you think Americans 42% No have too much religious freedom, too little religious freedom, or is the amount of religious free- E. Contacted an elected official. dom people have about right? 43% Yes 6% Too much freedom 57% No 21% Too little freedom 71% About right F. Sent a letter to the editor. 2% Don’t know/refused 12% Yes

88% No

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1. I’m going to read you some ways people might exercise their First Amendment right of free speech. For each, tell me if you agree or disagree that someone should be free to do it.

Strongly Mildly Mildly Strongly DK/ agree agree disagree disagree refused

People should be allowed to express unpopular opinions. 68% 22% 5% 4% 1%

Companies should be allowed to advertise tobacco. 26% 30% 11% 31% 3%

Companies should be allowed to advertise liquor and alcohol products. 25% 35% 12% 26% 2%

The media should be allowed to broadcast 104 pictures of nude or partially clothed persons. 8% 19% 19% 52% 3%

Musicians should be allowed to sing songs with words that others might find offensive. 23% 28% 16% 31% 3%

People should be allowed to place sexually explicit material on the Internet. 10% 15% 10% 62% 3%

People should be allowed to burn or deface the American flag as a political statement. 10% 10% 8% 70% 2%

School students should be allowed to wear a T-shirt with a message or picture that others may find offensive. 9% 17% 22% 48% 4%

People should be allowed to use words in public that might be offensive to racial groups. 8% 15% 14% 61% 2%

People should be allowed to display in a public place art that has content that might be

offensive to others. 20% 24% 22% 31% 4%

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2. Which comes closest to your own opinion? Nov- 5a. If an amendment prohibiting flag-burning els that describe explicit sex acts … were approved, it would be the first time any of the freedoms in the First Amendment have been 38% Have no place in a school library and amended in more than 200 years. Knowing this, should be banned. would you still support an amendment to prohibit 56% Should be permitted in the library if flag-burning? they are worthwhile literature. 88% Yes 3. Would you say that giving government the 9% No power to decide which TV programs can or can- 3% Don’t know/refused not be shown … 6. Please tell me if you agree or disagree with the 64% Violates the public’s right to watch following statement. It’s dangerous to restrict what it pleases. freedom of speech because restricting the free- 32% Is necessary to protect the public dom of one person could lead to restrictions on against violent or obscene shows. everybody. 105

4. Do you think that books that could show ter- 59% Strongly agree rorists how to build bombs should be ... 24% Mildly agree 8% Mildly disagree 70% Banned from public libraries. 6% Strongly disagree 25% Available in the library like every other 3% Don’t know/refused book?

5. Some people feel that the U.S. Constitution should be amended to make it illegal to burn or desecrate the American flag as a form of political dissent. Others say that the U.S. Constitution should not be amended to specifically prohibit flag-burning. Do you think the U.S. Constitution should or should not be amended to prohibit burning or desecrating the flag?

49% Should be amended 49% Should not be amended

2% Don’t know/refused

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○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ III. Freedom of the press

1. To the best of your recollection, have you read 3. There has been a lot of talk lately about rating or heard anything about a recent U.S. Supreme television programs. Do you think that govern- Court ruling regarding the Internet? ment has a role to play in developing a system to rate television programs or do you think govern- 49% No — not read/heard ment should not be involved? 8% Yes — a lot 19% Yes — some 44% Government should be involved 22% Yes — a little 52% Government should not be involved 1% Don’t know/refused 4% Don’t know/refused

2. As you may know, courts have traditionally 4. Please tell me whether you agree or disagree given broad First Amendment protections to with the following statement: Tabloid newspa- books and newspapers which contain material that pers such as The Star and the National Enquirer may be offensive to some people. Recently the U.S. should have the same freedom to publish what Supreme Court ruled that material on the Internet they want as other newspapers such as The New 106 has the same First Amendment protections as York Times and The Wall Street Journal. printed material such as books and newspapers. Do you agree or disagree with this ruling? 42% Strongly agree 34% Mildly agree 30% Strongly agree 9% Mildly disagree 26% Mildly agree 14% Strongly disagree 15% Mildly disagree 2% Don’t know/refused 23% Strongly disagree 5% Don’t know/refused 5. Overall, how would you rate the First Amendment’s guarantee of freedom of the press in helping the public become informed about issues in government?

15% Excellent 48% Good 28% Only fair 6% Poor

4% Don’t know/refused

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6. I’m going to read you some ways that freedom of the press may be exercised. For each, tell me if you agree or disagree that the press should be free to do it. Strongly Mildly Mildly Strongly DK/ agree agree disagree disagree refused

Newspapers should be allowed to publish freely without government approval of a story. 56% 23% 11% 6% 3%

Journalists should be allowed to keep a news source confidential. 58% 27% 6% 6% 2%

Broadcasters should be allowed to televise courtroom trials. 28% 23% 19% 25% 4%

Newspapers should be allowed to endorse or criticize political candidates. 43% 26% 11% 18% 2% 107

The news media should be allowed to report government secrets that have come to journalists’ attention. 35% 26% 14% 21% 5%

Television networks should be allowed to project winners of an election while people are still voting. 15% 16% 17% 51% 1%

High school students should be allowed to report controversial issues in their student newspaper without approval of school authorities. 24% 21% 23% 29% 3%

Journalists should be allowed to use hidden

cameras in their reporting. 13% 18% 20% 45% 3%

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7. Please tell me which comes closest to your opin- 8. Do you think that jailing reporters who refuse ion: If a news photographer takes a picture of a to reveal their news sources during trial... famous person with a prostitute, the photos should be… 36% Is justified when the names are necessary for a fair trial 41% Permitted under the guarantees of a 54% Is wrong because people with impor- free press tant information will be afraid to tell 51% Forbidden as an invasion of privacy. the truth to reporters?

9. Before a criminal case comes to trial, do you think that reporters who have found out certain facts of the case should be:

51% Forbidden to publish the information since it might bias jurors 42% Allowed to publish the information because no one, not even a judge, 108

should be able to censor the press.

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1. I’m going to read you some ways people might exercise their First Amendment right of freedom of religion. For each, tell me if you agree or disagree that someone should be free to do it.

Strongly Mildly Mildly Strongly DK/ agree agree disagree disagree refused

People should be allowed to display religious symbols on government property. 27% 20% 22% 27% 4%

Public school students should be allowed to form a religious club that meets on school property. 44% 27% 11% 16% 2%

Teachers or other public school officials should

be allowed to lead prayers in school. 37% 20% 15% 25% 2%

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2. Do you feel that freedom to worship as one (IF “SHOULD BE AMENDED” IN Q4, ASK:) pleases… 4a. If an amendment allowing communities to decide on school prayer were approved, it would be 69% Applies to all religious groups regard- the first time any of the freedoms in the First less of how extreme their beliefs are? Amendment have been amended in over 200 24% Was never meant to apply to religious years. Knowing this, would you still support an groups that the majority of people amendment to let local communities decide on consider extreme or on the fringe? prayer in their local schools?

3. Do you agree or disagree with the following 90% Yes statement: It’s OK for a prayer to be said at a high 7% No school graduation ceremony if a majority of the 4% Don’t know/refused graduating class favors it. 5. Please tell me if you agree or disagree with the 62% Strongly agree following statement: It’s dangerous to place re- 19% Mildly agree strictions on freedom of religion because restric- 9% Mildly disagree tions on one type of religious activity could lead to 9% Strongly disagree restrictions on others. 2% Don’t know/refused 109 63% Strongly agree 4. Some people feel that the U.S. Constitution 23% Mildly agree should be amended to let local communities de- 6% Mildly disagree cide on whether or not prayer should be allowed 5% Strongly disagree in public schools. Others say that the U.S. Constitu- 3% Don’t know/refused tion should not be amended to allow local communities to decide on prayer in the schools. Do you think the U.S. Constitution should or should not be amended to allow local communities to decide on prayer in the schools?

42% Should be amended 56% Should not be amended

3% Don’t know/refused

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

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○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ V. Other questions

1. Do you agree or disagree with the following? 4. To the best of your recollection, have you ever Any group that wants to should be allowed to hire taken classes in either school or college that dealt people to influence government officials or poli- with First Amendment freedoms? cies. 51% Yes 13% Strongly agree 47% No 18% Mildly agree 2% Don’t know/refused 18% Mildly disagree 47% Strongly disagree 4a. Would that have been in grade school, high 4% Don’t know/refused school or college? (Circle all that apply.)

2. Do you agree or disagree with the following? 16% Grade school [Grades 1—8] Any group that wants to should be allowed to 67% High school hold a rally for a cause or issue even if it may be 56% College offensive to others in the community. 1% Don’t know/refused 110 38% Strongly agree 5. Overall, how would you rate the job that the 34% Mildly agree American educational system does in teaching 10% Mildly disagree students about First Amendment freedoms? 15% Strongly disagree 3% Don’t know/refused 4% Excellent 26% Good 3. Please tell me whether you agree or disagree 41% Only fair with the following statement: Once the govern- 22% Poor ment starts limiting certain rights it becomes easier 6% Don’t know/refused for it to put limits on more rights.

64% Strongly agree 20% Mildly agree 7% Mildly disagree 6% Strongly disagree

3% Don’t know/refused

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix A Survey Questionnaire

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

6. I’m going to read some situations in which you might find yourself. For each, tell me how free you feel to speak your mind. Very Somewhat Not Very Not free DK/ free free free at all refused

At work among your fellow workers 58% 28% 8% 4% 3% At a public meeting in your community 50% 37% 7% 3% 3% At a political rally 43% 33% 9% 4% 11% In a school classroom 48% 35% 9% 4% 4%

111 7. Over the past year, have you been in any situations when you did not express your opinions on something because you thought you might be punished or penalized for voicing your opinion? (IF YES:) Have you been in this situation frequently, a few times, or just once in the past year?

70% No — not been in this situation 7% Yes — frequently 17% Yes — a few times

6% Yes — just once

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

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○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ VI. Demographics

1. Age 5a. Do you have access to the internet?

20% 18-29 years old 15% Every day 35% 30-44 years old 11% Once a week 27% 45-59 years old 7% Once a month 18% 60-plus years old 9% Less than once a month 56% No access 2. Education 2% Don’t know/refused

1% Grade school or less 6. In which state do you live? 5% Some high school 27% High school 7. In politics, as of today, are you a Democrat, a 31% Some college Republican, an independent or what? 22% College graduate 14% Postgraduate 35% Democrat 112 30% Republican 3. Race 25% Independent 6% Other 82% White 6% Don’t know/refused 8% Black 5% Hispanic 8. Politically speaking, do you consider yourself to 2% Asian be liberal, moderate, or conservative? 3% Other 1% Don’t know/refused 24% Liberal 36% Moderate 4. Household Income 33% Conservative 2% None 13% Under $20,000 5% Don’t know/refused 29% $20,000-$40,000 36% $40,000-$75,000 9. Are you Catholic, Protestant, Jewish, or another 11% $75,000-plus religion? 11% Don’t know/refused 28% Catholic 5. From which news medium would you say you 43% Protestant get most of your news? 2% Jewish 16% Other 48% Television 9% No religion 22% Newspapers 3% Don’t know/refused 10% Radio 1% Magazines 9a. Do you attend religious services? 1% Internet 1% Other source 15% Combination

1% Don’t know/refused

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix A Survey Questionnaire

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37% Once a week 11. Are you currently employed? 13% Two or three times a month 9% Once a month 60% Full-time 33% Less than once a month 13% Part-time 9% Don’t know/refused 14% Retired 1% Temporarily laid off 10. What is your marital status? 11% Not employed 1% Don’t know/refused 27% Single 55% Married 12. Are there any children under the age of 18 liv- 11% Divorced/separated ing in your household? 6% Widowed 1% Don’t know/refused 42% Yes 58% No

12a. Are any of these children 11 years old or 113 younger?

69% Yes 30% No

1% Don’t know/refused

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114

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix A Survey Questionnaire

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Survey Methodology

he Freedom Forum commissioned the University of Connecticut to conduct a general public survey of T attitudes on the First Amendment. The questionnaire was developed jointly by The Freedom Forum and the Uni- versity of Connecticut. At the University of Connecticut, Professor Ken Dautrich directed the project. Larry McGill of the Media Studies Center aided in developing the questionnaire, and Paul K. McMasters of The Freedom Forum provided overall direction for the project. Telephone questionnaires were pre-tested with 30 re- 115 spondents. The pretest was used to ensure that questions were understood by respondents and response categories

were appropriate. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Sample design

The University of Connecticut follows procedures in sampling and b data processing that are designed to minimize error. For the sampling procedure, we used a variety of random-digit dialing—working residential “blocks” were identified with the aid of published direc- tories. These exchanges were chosen in a modified stratified procedure based on the proportion of the theoretical universe residing in the geographic area covered by each published directory. Thus, in general, if 10% of the universe lives in the area covered by a directory, 10% of the exchanges will be chosen from that area. The universe for the First Amendment project was the adult, non-institu- tionalized population 18 years of age and older. The geographic distribution used in sampling was based on estimates of the distribution derived from the census figures for towns. Once “working blocks” were identified, one telephone number was generated at random for each block. A household was given five distinct opportunities to be contacted before a substitution was made for it. Once it was learned that the household did contain an eligible respondent, a random selection—unbiased by age or sex among the eligible respondents—was made. Should that person not be the one who answered the telephone, an eligible respondent was called to the telephone. “Household” was defined as a dwelling where at least one adult 18 years of age resided. Such institutions as

college dormitories, prisons, and the like were omitted.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Fieldwork

Interviewing for the survey was conducted by telephone between July 17 and Aug. 1, 1997. We employed a Computer Assisted Tele- phone Interviewing system to conduct the interviewing. In a CATI system, questionnaires are computerized, reducing the amount of human error in the survey process. The telephone interviews took place on weekday evenings, on Saturday mornings and afternoons, and on Sunday afternoons and evenings. This procedure prevented a bias in selecting people only at home at certain times. If a given telephone number did not result in an interview—for whatever reason— a substitution was made for it from within the same working block (which functioned as our single member “cluster”). This meant that one person not being at home, for example, did not keep his or her cluster from coming into the survey. All interviewing was conducted

at the University of Connecticut’s telephone center. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 116 Sampling error

A total of 1,026 interviews with a national scientific sample of adults were conducted. Sampling error for a sample of this size is ±3% at the 95% level of confidence. Sampling error for subgroups (e.g. men,

women, etc.) is larger. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Time-line comparisons

Some of the questions in this survey are repeated from questions administered on surveys conducted in the late 1970s by Professors McCluskey and Brill. These serve as a time-line comparison to track

changes in opinion.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix B Survey Methodology

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A Year in the Life of the First Amendment he First Amendment touches the daily lives of all Americans in large and small ways. The following log T demonstrates that the state of the First Amendment is ferment; its freedoms are constantly in action or under siege. Here are just a few notable First Amendment happen-

ings during 1996. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ January 10 117

A federal appeals court strikes down a Mississippi law that let students lead prayers in public schools. The law was intended to circum- vent U.S. Supreme Court doctrine that does not allow teacher-led

prayer. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ January 23 c In his third State of the Union Address, President Clinton calls for Congress to pass the v-chip legislation in the Telecommunications Act and for the media to clean up its act. The president says he wants leaders of the entertainment industry to meet with him to find ways

to improve what children see on television. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ January 29

The Washington Post reports that relatives of murder victims have filed suit in Greenbelt, Md., federal district court against the publisher of Hit Man: A Technical Manual for Independent Contractors, claiming the publisher “aided and abetted” a 1993 triple murder in Silver Spring, Md. If a publisher is found liable for the acts of mur- derers who use their books in commissions of crimes, it would break

new ground in First Amendment law.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

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○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ February 1 February 26

The U.S. House passes the Telecommunications Act of 1996 by a vote The Citizens Internet Empowerment Coalition, which is coordinated of 414 to 16, and the U.S. Senate passes it 91 to 5. The law’s Commu- by the Center for Democracy and Technology, America Online and nications Decency Act exacts criminal and civil penalties (up to a the American Library Association, and joined by other Internet and $250,000 fine and two years in jail) against those who post indecent press groups, files suit in federal court in Philadelphia challenging material on the Internet. It also requires television manufacturers to the Communications Decency Act. This suit differs from the ACLU install v-chips in all sets 13 inches and larger and compels the indus- suit in that it devotes 50 pages to explaining why the Internet is try to devise a satisfactory program-rating system within a year or more like a newspaper than like television. Later it is consolidated the FCC will appoint an advisory commission to devise one. In addi- with the ACLU suit to form the case ACLU v. Reno. tion, the act includes provisions that force “adult” cable channels to

take steps to keep children from seeing images that “bleed” from ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ scrambled shows. February 29 Television-industry leaders meet with President Clinton and an-

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ nounce that they will come up with a program-rating system by next February 8 January. Indications are that each network will rate its own shows, President Clinton signs the Telecommunications Act into law. that ratings would be linked to the v-chip, and that news and sports will not be included. Jack Valenti, who helped developed the Motion A coalition of groups headed by the ACLU files a legal challenge to Picture Association of America rating system 28 years ago, heads an the Communications Decency Act in federal court in Philadelphia. “implementation group” that is to begin work March 1 developing

118 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ the system.

February 15 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ The Washington Post and The New York Times report that executives March 5 of ABC, CBS, NBC and Fox TV networks have been meeting in New In a First Amendment victory for the press, the Sixth Circuit Court of York and Los Angeles to discuss development of a ratings system Appeals rules that a lower federal judge was wrong when he im- similar to the one used by the motion picture industry. posed a gag order on the press by barring Business Week magazine Federal Judge Ronald Buckwalter grants a temporary restraining or- from publishing sealed court documents. The documents, which re- der against the Communications Decency Act, ruling that the law late to a lawsuit Proctor & Gamble brought against Bankers Trust, naming certain material “indecent” (and therefore illegal) is so were leaked to a reporter. The appeals court ruled that keeping the vague as to make its application unconstitutional. However, press from publishing amounted to government censorship. Buckwalter upholds the language permitting prosecution of “patently offensive” materials. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

March 12 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ February 20 President Clinton signs into law an act that requires news broadcast- Without comment, the U.S. Supreme Court turns away arguments by ers such as CNN to obtain a license before opening a news bureau in the Freedom From Religion Foundation that a monument engraved Havana. The law, commonly called the Helms-Burton Act, after spon- with the Ten Commandments in a public park near the state capitol sors Jesse Helms (R-N.C.) and Dan Burton (R-Ind.), is designed to pun-

in Denver is unconstitutional. ish Cuba through economic sanctions.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ February 21 March 14

The Supreme Court schedules oral arguments on the constitutional- The National Basketball Association lifts its suspension of Mahmoud ity of the federal law (the Television Consumer Protection and Com- Abdul-Rauf of the Denver Nuggets, who had refused to stand during petition Act) that encourages cable television operators to restrict the National Anthem before games. The player, a Muslim since 1991, indecent programming on public-access channels. had stopped standing for the anthem at the start of the season, sometimes remaining in the locker room, at other times sitting on the bench, other times facing away from the flag. He was reinstated after one game when he agreed to stand and pray silently during

the anthem.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix C A Year in the Life of the First Amendment

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○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ March 18 April 24

The Supreme Court agrees to accept the case of Schenck v. Pro- Congress passes the Anti-Terrorism and Effective Death Penalty Act Choice Network, which would clarify how far protesters must be of 1996. The statute allows the government to deport a legally ad- kept from abortion clinics. The case stems from a court order that mitted alien on the grounds of suspicion of a connection to terrorism created a 15-foot buffer zone around abortion clinic entrances in without letting the person charged see or directly challenge the evi- New York as well as around vehicles entering clinic driveways and dence. Even aliens who give money to or speak out about a political patients entering or leaving the clinics. cause may be deemed to have a “connection” and therefore may be

deported. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

March 20 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ April 26 The Supreme Court hears arguments in O’Hare Truck Service v. Northlake. The court must decide whether a city government can cut The government asks the federal court trying Timothy McVeigh to off a contractor because he supported the mayor’s opponent in an stop taping the proceedings of the Oklahoma City bombing case and election. This is similar to the Heiser v. Umbehr case also heard this to stop distributing those tapes to reporters. The court later rules term, except that O’Hare claims violation of freedom of association that the tapes should still be made, but that they should not be pro- whereas Umbehr involves freedom of speech. Lower courts have vided to the press. ruled that political patronage contractors do not have the same First

Amendment rights as government employees. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

May 10 119 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ April 1 The Third Circuit rules that when the Justice Department referred a The U.S. Naval Academy removes a civilian professor from teaching complaint about indecent pictures on CompuServe to the FBI, the duties after he writes an article in The Washington Post that says the agency had “clearly run afoul of both this Court’s orders and the academy is “plagued by a serious morale problem caused by a cul- Government’s promises” not to prosecute the transmission of “inde- ture of hypocrisy ... that tolerates sexual harassment, favoritism and cent” images over the Internet until the Supreme Court had ruled on

the covering up of problems.” its constitutionality.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ April 15 May 13

The Supreme Court hears arguments in Colorado Republican Federal The Supreme Court rules that a Rhode Island law banning the adver- Campaign Committee v. FCC about whether the Colorado Republican tisement of liquor prices violates retailers’ free-speech rights. During Party violated federal law by spending too much on congressional arguments in the case, 44 Liquormart, Inc. v. Rhode Island, the state races. The organization argues that limits on campaign spending are said the ban was needed to promote temperance. a violation of First Amendment rights, since spending money is a form of expression. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

May 16 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ April 18 Maryland’s attorney general criticizes a recently passed state law that prohibits lawyers from soliciting criminal defendants until 30 The federal government fires Timothy Connolly, a civilian employee days after suspects are arrested. The ban is unconstitutional, Attor- of the Defense Department, for criticizing the Clinton ney General Joseph Curran says, because it is a restriction on attor-

administration’s policy on the use of land mines. neys’ free speech and puts defendants’ legal rights in jeopardy.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ May 29 June 28

The ACLU begins defending a former Oakland County, Mich., police The Supreme Court rules that cable companies must carry program- officer who is being sued by his former chief for defamation. The of- ming on public-access channels even when some people consider it ficer had publicly criticized his boss for acts of official misconduct. indecent, although cable operators can ban indecent programs on Supporters of the officer say the defamation action is a Strategic commercial-sponsored channels that are leased to organizations — Lawsuit Against Public Participation that attempts to chill a citizen’s so called “leased access” channels. Supreme Court watchers think right to speak out on public matters. this case may have implications for the regulation of indecency on

the Internet. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

June 4 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ July 8 The Boulder, Colo., city council passes an amendment to the city’s anti-smoking bill to allow actors to smoke on stage as part of theater The Sixth Circuit Court of Appeals upholds a lower-court decision performances. Several people had complained when, during a dinner that a city’s ban on for-sale signs in front yards is unconstitutional, theater performance of “Grand Hotel,” characters on stage had reaffirming the notion that for-sale signs are a recognized form of smoked. Theater supporters defended the smoking, calling it a type speech and that they provide the public with important information.

of artistic expression.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ July 9 120 June 11 Miami University at Ohio’s campus newspaper sues the school to ob- New York’s highest court rules that prison officials who punished an tain student disciplinary records. The newspaper wants documents inmate for failing to attend an Alcoholics Anonymous meeting vio- on student crimes, such as rape, which have been adjudicated by the lated his First Amendment rights to religious freedom. Since the AA university disciplinary board. The university claims that handing over program relies on religious teachings, the court said, forcing agnos- the records would violate a federal law that protects student privacy.

tic or atheist inmates to attend the gatherings impinges on their ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ freedom of religion — in this case, atheism or agnosticism. July 26 A federal judge rules that Missouri highway officials cannot keep the Ku Klux Klan from participating in the state’s “adopt-a-highway” Volunteers and clerics in Minnesota prisons settle a federal lawsuit program. The judge said the state’s action would restrict the Klan’s after it is agreed that, under certain circumstances, volunteers may free-expression rights. discuss their religious beliefs on homosexuality with inmates. Two

years earlier, after a volunteer told a lesbian that homosexuality was ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ June 12 a sin, Hennepin County officials told volunteers to steer away from this type of offensive speech. U.S. District Court in Philadelphia rules that the Communications De-

cency Act unconstitutionally restricts free speech on the Internet. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ The judges express concern that legal speech may be chilled when July 30 Internet users restrain their otherwise legitimate expression for fear that it may be punished. The Justice Department has the option of The Fort Lauderdale (Fla.) Sun-Sentinel reports that a charter board appealing the ruling to the Supreme Court. member has filed a $1 million lawsuit against the city, saying it refused to let him serve because he would not take a loyalty oath for ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ religious reasons. The suit is later dismissed.

June 26 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ CIA Director John Deutch testifies before Congress that the nation’s July 31 information supply is vulnerable to terrorist attack, and that enemies of the U.S. could disrupt computer-based banking, air-traffic control, An Ohio state judge upholds a school voucher program in Cleveland. and electric power grids. Deutch advocates government inspection Critics of such programs, in which the government provides vouchers of some information on the Internet to prevent such terrorism. so students can attend private schools, say the program violates the

establishment clause of the First Amendment.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix C A Year in the Life of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ August 11 After House approval, the Senate passes the Defense of Marriage Act, which defines marriage as a union only between a man and a Protesters at the Republican National Convention in San Diego com- woman. Gay-rights advocates denounce the bill as an election-year plain that their demonstrations were ineffective because they were ploy that infringes on rights to free association. President Clinton corralled into a “designated protest zone” surrounded by a 12-foot- says that he will sign the bill.

high fence, and that the view of the convention center was partially ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

blocked by a row of trailers. September 11 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ August 13 The Texas Court of Criminal Appeals strikes down an anti-stalking law that disallows harassing, annoying and alarming speech, saying The Supreme Court of Idaho rules that an attorney’s criticisms of a it could chill First Amendment rights to free expression. In response, judge’s ruling were not protected under the First Amendment. The the state legislature begins crafting a narrower bill.

Idaho State Bar sanctioned the attorney for violating rules of profes- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ sional conduct when he said publicly that a judge’s ruling had been September 12 influenced by politics.

An elementary school principal in New York stops a student from cir- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ August 29 culating a petition that criticizes the suspension of the school lunch program. One week later, under pressure from the community, the Government attorneys, worried that media interviews would pollute principal gives the petition back and allows the girl to solicit signa- 121 an Oklahoma City bombing jury pool, request a ban on media con- tures.

tact with Timothy McVeigh. A federal judge rules that reporters can ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ contact McVeigh via telephone and mail but may not communicate September 23 through face-to-face interviews.

President Clinton signs the Military Honor and Decency Act into law. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ August 30 This act prohibits the sale or rental of sexually explicit material on military bases and other property controlled by the Department of The families of three people murdered by a killer-for-hire appeal to Defense. It is struck down as unconstitutional four months later. the U.S. Court of Appeals for the Fourth Circuit when a federal dis- Congress passes the Child Pornography Prevention Act of 1996 as an trict court in Maryland refuses to hold the publisher of the hit man amendment to the Senate budget bill. The act makes it unlawful to manual responsible for the killings (see January 29). “appear” to depict children in sexual situations, whether in film,

computer images, or photographs. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

September 1 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ October 10 The sheriff in Plymouth, Mass., bans the reading of all adult magazines in his jail, saying that the founding fathers never meant the A federal appeals court overturns a ruling by a district court that First Amendment to allow prisoners to read smut. stated that artists did not have “core” First Amendment protection. New York City visual artists sued when they were told to get vendor ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ licenses that city officials then refused to give them. A three-judge September 10 panel said the city can regulate the time, place and manner of selling art, when it needs to protect the health and safety of pedestrians, The Omaha (Neb.) World-Herald sues to gain access to computerized but it cannot forbid the sale of art in parks and on sidewalks. court and police records. The newspaper argues that if it cannot ob-

tain the records, it cannot look for patterns of crimes and other im- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ portant public information. The city’s refusal to release computer- October 15 ized records restricts the freedom of the press, the newspaper says. The Federal Communications Commission fines radio station WVGO of Richmond, Va., for broadcasting indecent language in a Howard

Stern show.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ October 22 November 6

A federal judge rules that a law prohibiting lawyers from soliciting A federal district court judge in Manhattan issues a broad ruling bar- criminal suspects for 30 days is unconstitutional. The ban restricts the ring Mayor Rudolph W. Giuliani from trying to compel Time Warner free flow of information, the judge says. to alter its constitutionally protected editorial decision not to carry

Fox News on its cable system. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

October 28 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ November 8 The California Office of Administrative Law strikes down a temporary ban that kept journalists from interviewing state prisoners. The A panel of federal judges from Delaware denies Playboy an injunc- ban, which could have been made permanent, was discarded be- tion against enforcement of Section 505 of the Communications De- cause corrections department officials did not adequately answer cency Act in the case Playboy Entertainment Group, Inc. v. United the public’s objections to the law. States of America. Section 505 mandates that cable operators must scramble or block signals of adult channels in order to prevent “sig- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ nal bleed,” the reception of programming on the televisions of non- October 29 adult channel subscribers.

In a major defeat for juvenile-curfew laws, a federal judge in Wash- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ington, D.C., strikes down the district’s law keeping children out of November 12 122 public places between 11 p.m. and 6 a.m. on weekdays and between midnight and 6 a.m. on weekends. Under the law, parents also could Wal-Mart’s practice of altering musical compact discs — taking out be punished for a child’s curfew violation. The court says that minors words considered “indecent” — before selling them to customers is “possess a fundamental right to free movement to participate in le- revealed in a front-page story in The New York Times. Other large re- gitimate activities that do not adversely impact on the rights of oth- tail chains, such as Blockbuster and Kmart, require producers to take ers.” similar steps, as a condition of selling entertainment products. As a

result, some studios censor films to meet corporate decency require- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ November 4 ments.

U.S. District Court Judge Charles R. Weiner rules that Cyber Promo- ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ tions Inc. “has no right under the First Amendment” to reach AOL December 6 subscribers with e-mail advertisements sent over the Internet and that AOL can block the direct-marketing firm from sending the unso- A federal court in New York refuses to dismiss a suit by Larry Agran, licited mass mailings. a 1992 presidential candidate, who was thrown out of a debate be-

tween President Clinton and then-Democratic candidate Jerry ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ November 5 Brown. Officials at the debate, which was held at City University, told security guards to silence all who were not participating in the debate. This is the first time that the Internet is used to communicate voter

results in a presidential election. Some World Wide Web sites are ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ slowed or overwhelmed as hundreds of thousands of users logged December 10 on to the Net for election returns. The U.S. Court of Appeals for the Ninth Circuit upholds a lower The D.C. Court of Appeals rules that a federal act prohibiting anti- court’s decision that the decency standard to be used in granting abortion protesters from intimidating and interfering with access to money to artists, adopted in 1990 by the National Endowment for abortion clinics is constitutional. Anti-abortion activists had com- the Arts, was vague, potentially arbitrary and in violation of the First plained that the act suppressed their First Amendment rights of ex- Amendment. pression, but the court said the law was meant to prohibit physical

acts.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix C A Year in the Life of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ December 17

The United States Parole Commission restricts the rights of some federal parolees to use the Internet for fear that they will try to gather

information for criminal purposes or contact other wrongdoers. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ December 18

A Miami jury awards a bank holding company and its chief executive officer $10 million in a libel suit over a 1991 “20/20” show. The jury found that the ABC News magazine defamed CEO Alan Levan and his company when it alleged he scammed investors into buying worthless bonds. Because hoodwinked investors settled their suits with Levan out of court, the judge in the libel case did not allow the Miami jury to consider their suits as evidence of Levan’s wrongdoing.

The $10 million award is later reduced on appeal. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ December 20 A North Carolina jury awards $1,402 in actual damages to the Food 123 Lion supermarket chain as compensation for fraud by ABC “PrimeTime Live” producers. The producers, in an attempt to catch Food Lion employees selling spoiled meats, faked resumes to get jobs in the stores. One month later, the jury awarded Food Lion $5.5 million in punitive damages. The supermarket chain had asked for $1.9 billion in punitive damages, claiming it had lost this amount when the price of its stock plunged after ABC’s story aired. The net-

work appealed the decision.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

124

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix C A Year in the Life of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Contributors

Steven Aftergood ...... Project on Government Secrecy, Federation of American Scientists Lee Arbetman ...... staff director, National Institute for Citizen Education in the Law Ben Bagdikian ...... journalist and author, The Media Monopoly Ron Banaszak ...... director, Youth Education Programs, American Bar Association Dave Bennett ...... executive director, Illinois Press Association Ann Beeson ...... staff counsel, American Civil Liberties Union Mary Birmingham...... founder, Metronet

Senny Boone ...... director of Government Operations, National Newspaper Association 125 Lynne Bradley ...... Washington office, American Library Association Corey Bradley ...... The Freedom Forum First Amendment Center Arthur Bryant ...... Trial Lawyers for Public Justice Judith Cannizaro ...... social studies coordinator, Metropolitan Public Schools, Nashville, Tenn. Nissan Chavkin ...... Constitutional Rights Foundation, Chicago Todd Clark ...... executive director, Constitutional Rights Foundation, Los Angeles David Cole ...... law professor, Georgetown University dClara David ...... Office of Foreign Assets Control, Department of Treasury Mike Donoghue ...... journalist, The Burlington (Vt.) Free Press Joan Durrance ...... director, School of Information and Library Science, University of Michigan Anne Averill Fickling ...... program coordinator, Center for Civic Education, Washington, D.C., office Edward Fouhy ...... director, Pew Center for Civic Journalism David Goldsmith ...... executive director, Handsnet Mark Goodman...... executive director, Student Press Law Center W. Vance Grant ...... U.S. Department of Education Library Stephen Green ...... Americans United for the Separation of Church and State Charles Haynes ...... scholar in residence, First Amendment Center Anne Heanue ...... associate director, American Library Association, Washington, D.C., office David Hudson ...... law clerk, The Freedom Forum First Amendment Center Jane Kirtley ...... executive director, Reporters Committee for Freedom of the Press Audrie Klause ...... executive director, NetAction Judith Krug ...... director, Office for Intellectual Freedom, American Library Association

Brian Jacobson ...... LAMBDA Legal Defense and Education Fund

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ State of the First Amendment

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Richard Kleeman ...... consultant, Association of American Publishers Robert Lederman ...... president, A.R.T.I.S.T. Robert Leming ...... Indiana Program for Law Related Education Charles Levendowsky ...... editorial page editor, Casper (Wyo.) Star-Tribune Dorothy Lohman ...... press secretary, Legal Services Corporation Julie Lucas...... First Amendment Congress Kathleen Maloy ...... lawyer, member of Metropolitan Davidson County Human Relations Commission, Nashville, Tenn. Jane McQuade ...... head of Central Library, Arlington, Va. Mari Matsuda ...... professor, Georgetown University Elliot Mincberg ...... general counsel and legal director, People For the American Way Mark Molli ...... director of government relations, Center for Civic Education, Washington, D.C., office Bill Monroe ...... executive director, Iowa Journalism Association Paula Nessel ...... director, Law-Related Education, American Bar Association 126 Bob Peck ...... First Amendment attorney and author Frank Porpotage ...... U.S. Department of Justice Elizabeth Pourron ...... chief of the materials management division, Arlington, Va., Public Library Jerry Pring ...... professor, University of Colorado Julie Pringle ...... coordinator of Public Acquisitions and Collection Management, Fairfax, Va., Public Library Charles Quigley ...... executive director, Center for Civic Education Sam Rabinove ...... legal director, American Jewish Congress Bob Richards ...... director, Pennsylvania Center on the First Amendment Jim Schmidt ...... American Library Association Richard Schmidt ...... attorney, Cohn & Marks August Steinhilber ...... general counsel, National School Boards Association Oliver Thomas ...... special counsel to the National Council of Churches The Rev. Earl Trent ...... Washington, D.C. Arthur Tsuchiya ...... senior policy official, National Endowment for the Arts Roz Udow ...... National Coalition Against Censorship

Sanford Ungar...... dean, School of Communication, American University

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix D Contributors

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

Bibliography

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Hampshire, Stuart. Public and Private Morality. New York: Cambridge University Press, 1978. Levy, Leonard, Kenneth Karats and Dennis Mahoney. The First Amendment: Selections from the En- cyclopedia of the American Constitution. New York: Macmillan Publishing Co. Inc., 1990. Lipset, Seymour M. The Third Century: America as a Post-Industrial Society. Chicago: University of Chicago Press, 1980. Madison, James. Notes of Debates in the Federal Convention of 1787. New York: Norton Publishing, 1966. McClosky, Herbert and Alida Brill. Dimensions of Tolerance: What Americans Believe about Civil Lib- 127 erties. New York: Russell Sage Foundation, 1983. Miller, William. Alternatives to Freedom: Arguments and Opinions. White Plains, N.Y.: Longman Publishing Group, 1995. Monk, Linda R. The Bill of Rights: A User’s Guide. Alexandria, Va.: Close Up Publishing, 1991. Nagel, Robert F. Constitutional Cultures: The Mentality and Consequences of Judicial Review. Berke- ley, Calif.: University of California Press, 1989. Pancake, John, ed. Thomas Jefferson: Revolutionary Philosopher, A Selection of Writings. Hauppauge, N.Y.: Barron’s Educational Series Inc. 1977. e Rawls, John. A Theory of Justice. Cambridge, Mass.: Belknap Press, 1982. Schwartz, Bernard. The Warren Court: A Retrospective. New York: Oxford University Press Inc., 1996. Sunstein, Cass R. After the Rights Revolution: Reconceiving the Regulatory State. Cambridge, Mass.: Harvard University Press, 1990. Van Alstyne, William W. Interpretations of the First Amendment. Durham, N.C.: Duke University

Press, 1984.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Freedom of Expression Alderman, Ellen and Caroline Kennedy. The Right to Privacy. New York: Vintage Books, 1997. ______. In Our Defense: The Bill of Rights in Action. New York: Avon Books, 1992. American Library Association, Office of Intellectual Freedom. Intellectual Freedom Manual. Chicago, Ill.: American Library Association, 1996. Blanchard, Dallas A. The Anti-Abortion Movement and the Rise of the Religious Right. New York: Twayne Publishers, 1994. Brown, Jean E., ed. Preserving Intellectual Freedom: Fighting Censorship in Our Schools. Urbana, Ill.: National Council of Teachers of English, 1994. Bull, Christopher and John Gallagher. Perfect Enemies: The Religious Right, the Gay Movement and

the Politics of the 1990s. New York: Crown Publishing Group, 1996.

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Chafee, Zechariah. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1941. Collins, Ronald K.L. and David M. Skover. The Death of Discourse. Boulder, Colo.: Westview Press Inc., 1996. Corn-Revere, Robert, ed. Rationales and Rationalizations: Regulating the Electronic Media. Washington, D.C.: The Media Institute, 1997. De Grazia, Edward. Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. New York: Random House, 1992. Demac, Donna A. Liberty Denied: The Current Rise of Censorship in America. New Brunswick, N.J.: Rutgers University Press, 1990. Dubin, Steven C. Arresting Images: Impolitic Art and Uncivil Actions. New York: Routledge, 1994. Emerson, Thomas. The System of Freedom of Expression. New York: Vintage Books, 1970. Fiss, Owen M. The Irony of Free Speech. Cambridge, Mass.: Harvard University Press, 1996. Foerstel, Herbert N. Banned in the U.S.A.: A Reference Guide to Book Censorship in Schools. Westport, Conn.: Greenwood Publishing Group Inc., 1994. Frohnmayer, John. Out of Tune: Listening to the First Amendment. Nashville, Tenn.: The Freedom Forum First Amendment Center, 1994. Grossman, Lawrence K. The Electronic Republic: Reshaping Democracy in the Information Age. New York: Viking Penguin, 1995. 128 Heins, Marjorie. Sex, Sin and Blasphemy: A Guide to America’s Censorship Wars. New York: The New Press, 1993. Holzer, Henry M., ed. Speaking Freely: The Case Against Speech Codes. Los Angeles: Center for the Study of Popular Culture, 1994. Hughes, Robert. Culture of Complaint: The Fraying of America. New York: Oxford University Press, 1993. Jensen, Carl, et al. Censored: The News That Didn’t Make the News — and Why: The 1996 Project Cen- sored Yearbook. New York: Seven Stories Press, 1996. Kaplar, Richard. The First Amendment and the Media — 1997. Washington, D.C.: The Media Institute, 1997. Kipnis, Laura. Bound and Gagged: Pornography and the Politics of Fantasy in America. New York: Grove Press, 1996. Lane, Robert W. Beyond the Schoolhouse Gate: Free Speech and the Inculcation of Values. Philadelphia: Temple University Press, 1995. Lutz, William. The New Doublespeak: Why No One Knows What Anyone’s Saying Anymore. New York: HarperCollins Publishers Inc., 1996. Marsh, Dave. 50 Ways to Fight Censorship and Important Facts to Know about the Censors. New York: Thunder’s Mouth Press, 1991. Matsuda, Mari J., et al. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amend- ment. Boulder, Colo.: Westview Press, 1993. Meiklejohn, Alexander. Free Speech and Its Relation to Self-Government. New York: Harper, 1948. Menand, Louis, et al. The Future of Academic Freedom. Chicago: University of Chicago Press, 1996. Paley, Marcia. Sex & Sensibility: Reflections on Forbidden Mirrors and the Will to Censor. Hopewell, N.J.: The Ecco Press, 1994. Robson, Ruthann. Gay Men, Lesbians and the Law. Broomall, Pa.: Chelsea House Publishers, 1997. Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf Inc., 1992. Shaw, David. The Pleasure Police: How Bluenose Busybodies and Lily-Livered Alarmists Are Taking All the Fun Out of Life. New York: Doubleday, 1996. Swanson, James, ed. First Amendment Handbook. New York: Clark Boardman Callaghan, 1996.

Wallace, Jonathan and Mark Mangan. Sex, Lies and Cyberspace. New York: Henry Holt & Co. Inc., 1996.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Appendix E Bibliography

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Bollinger, Lee C. Images of a Free Press. Chicago: University of Chicago Press, 1991. Fallows, James. Breaking the News: How the Media Undermine American Democracy. New York: Pan- theon Books, 1996. Davis, Richard. The Supreme Court and the Press. Englewood Cliffs, N.J.: Prentice-Hall, 1994. Grey, David L. The Supreme Court and the News Media. Ann Arbor, Mich.: Books on Demand, 1968. Hertsgaard, Mark. On Bended Knee. New York: Farrar, Straus & Giroux Inc., 1989. Iyengar, Shanto and Richard Revere, eds. Do the Media Govern? Politicians, Voters and Reporters in America. Thousand Oaks, Calif.: Sage, 1997. Levy, Leonard W. Emergence of a Free Press. New York: Oxford University Press, 1987. Mann, Thomas E. and Norman J. Ornstein. Congress, the Press and the Public. Washington, D.C.: Brookings Institution, 1994. Nelson, Harold N., ed. Freedom of the Press from Hamilton to the Warren Court. New York: Macmillan, 1967. Walsh, Kenneth T. Feeding the Beast: The White House Versus the Press. Avenal, N.J.: Random House Value Publishing Inc., 1996.

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○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Freedom of Religion Alley, Robert S. The Supreme Court on Church and State. New York: Oxford University Press, 1988. Cox, Harvey. Fire from Heaven: The Rise of Pentecostal Spirituality and the Reshaping of Religion in the 21st Century. Reading, Mass.: Addison-Wesley, 1995. Davis, Derek. Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations. Amherst, N.Y.: Prometheus Books, 1991. Foltin, Richard. Religious Liberty in the 1990s. New York: The American Jewish Committee, 1994. Gerzon, Mark. A House Divided: Six Belief Systems Struggling for America’s Soul. New York: G.P. Putnam, 1996. Haynes, Charles C. and Oliver Thomas. Finding Common Ground: A First Amendment Guide to Religion and Public Education. Nashville, Tenn.: The Freedom Forum First Amendment Center, 1995. Hunter, James Davison and Os Guinness, eds. Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy. Washington, D.C.: Brookings Institution, 1990. Hunter, James Davison. Evangelism: The Coming Generation. Chicago: University of Chicago Press, 1987. Kurland, Philip. Church and State: The Supreme Court and the First Amendment. Chicago: University of Chicago Press, 1975. Levy, Leonard W. Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie. Chapel Hill, N.C.: University of North Carolina Press, 1995. ______. The Establishment Clause: Religion and the First Amendment. Chapel Hill, N.C.: University of North Carolina Press, 1994. Miller, Robert T., ed. Toward Benevolent Neutrality: Church, State and the Supreme Court. Waco, Texas: Markham Press Fund, 1992. Morgan, Richard. The Politics of Religious Conflict. Lanham, Md.: University Press of America, 1980. Reavis, Dick J. The Ashes of Waco: An Investigation. New York: Simon & Schuster Inc., 1995. Tabor, James D. and Eugene V. Gallagher. Why Waco? Cults and the Battle for Religious Freedom in

America. Berkeley, Calif.: University of California Press, 1995.

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Wallis, Jim. Who Speaks for God? New York: Delacorte Press, 1996.

Warshaw, Thayer. Religion, Education and the Supreme Court. Nashville, Tenn.: Abingdon Press, 1979.

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Ackerman, Bruce. Social Justice in the Liberal State. New Haven: Yale University Press, 1980. Berry, Jeffrey M. Lobbying for the People: The Political Behavior of Public Interest Groups. Princeton, N.J.: Princeton University Press, 1977. Crenson, Matthew A. Neighborhood Politics. Cambridge, Mass.: Harvard University Press, 1983. Ferman, Barbara. Challenging the Growth Machine: Neighborhood Politics in Chicago and Pittsburgh. Lawrence, Kan.: University Press of Kansas, 1996. Hrebenar, Ronald J. Interest Group Politics in America. Armonk, N.Y.: M E Sharpe, 1997. Morris, Charles. The AARP: America’s Most Powerful Lobby and the Clash of Generations. New York: Times Books, 1996. Pring, George W. and Penelope Canan. SLAPPS: Getting Sued for Speaking Out. Philadelphia: Temple University Press, 1996. Reynolds, Dennis J., ed. Citizen Rights and Access to Electronic Information. Chicago, Ill.: Library and In- 130 formation Technology Association, American Library Association, 1991. Rose, Lance. NetLaw: Your Rights in the Online World. Berkeley, Calif.: Osborne McGraw Hill, 1995. Saunders, Kevin W. Violence as Obscenity: Limiting the Media’s First Amendment Protections. Durham, N.C.: Duke University Press, 1996. Schwartz, Ed. NetActivism: How Citizens Use the Internet. Sebastopol, Calif.: Songline Studios Inc., 1996. Woliver, Laura R. From Outrage to Action: The Politics of Grass-Roots Dissent. Champaign, Ill.: University

of Illinois Press, 1993.

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About the Author

onna Demac, a law- tion. She is on the board of yer specializing in the National Coalition Dcopyright and new Against Censorship, where media, is a longtime anti- major concerns include censorship activist. Her first book-banning and censor- book, Keeping America Unin- ship of material with sexual formed: Government Secrecy in content. She has taught the 1980s (1984), focused on courses on telecommunica- the increase of political and tions regulation and copy- regulatory controls on gov- right at New York Univer- 131 ernment information in sity, the Fletcher School of Washington, D.C. This was Law and Diplomacy, and followed by Liberty Denied: The City College of New The Current Rise of Censor- York. Beginning in January ship in America (1990), con- of 1998, she will be teach- cerning attempts by governing a course on intellectual ment and non-government property at Georgetown groups in different states to University’s Center on Cul- control and hide informa- ture, Communication and

Technology.

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132

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Acknowledgments

t was Paul McMasters of sponses to my requests for The Freedom Forum online and print informa- who saw the need for a tion by Nancy Stewart and Icomprehensive study of the Yvonne Egertson of The state of the First Amend- Freedom Forum World Cen- ment and who made poster library, and to Virginia sible my involvement. I Lee for her work on the want to express my appre- First Amendment ciation and thanks for his roundtables and other as- commitment to this project pects of the project. 133 and for the overall support Thanks also to the follow- provided by The Freedom ing individuals who pro- Forum. vided insights and comment Maury DeFreitas merits during the preparation of profuse thanks for his thor- this report: Charles Haynes ough and insightful assis- and Marcia Beauchamp- tance throughout months of Phillips of The Freedom Fo- research and reporting for rum First Amendment Cen- this project. His ability to ter; David Cole, professor at find and analyze pertinent the Georgetown University information contributed School of Law; and Elliot enormously to this report. Mincberg, legal director at I also want to acknowl- People For the American edge the swift, ingenious re- Way.

—Donna Demac

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World Center Board of Trustees