Conference Report Madelyn P

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 Cen- ter in New York City, the First Amendment Center at Van- derbilt University in Nashville, Tenn., and the Newseum at The Freedom Forum World Center headquarters in Arling- ton, Va. It also has operating offices in San Francisco, Cocoa Beach, Fla., London, Hong Kong, Buenos Aires and Johannesburg.

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World Center Board of Trustees

1101 Wilson Blvd. CHARLES L. OVERBY 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 CONFERENCE REPORT MADELYN P. JENNINGS CONFERENCE REPORT MALCOLM R. KIRSCHENBAUM

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 CONFERENCE REPORT

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State of the First Amendment Conference Report

Project Coordinator: Paul K. McMasters Designer: David Smith

Publication: #98-F03

To order: 1-800-830-3733

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Contents

INTRODUCTION v

Paul McMasters

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Discussion 4

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Discussion 16

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Discussion 24

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Panel: Keen Umbehr, Robert Van Kirk 30

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Discussion 41

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Discussion 52

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Discussion 58

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PARTICIPANTS 63

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Introduction A Gathering of First Amendment Eagles By Paul K. McMasters

he occasion was a con- sions led by some of the bright- ference convened to est lights in the First Amend- Tannounce the release of ment firmament. A dozen ex- the State of the First Amendment perts laid out the trends and report and a new national poll issues in “Speech on the on public attitudes toward First Fringe,” “Institutions Under Amendment freedoms. It was Fire,” and “The Medium is the December 16 and a busy time of Target.” Keen Umbehr, a trash the year, but a veritable Who’s hauler from Alma, Kansas, and Who of the First Amendment the plaintiff in a landmark First v community crowded the roof- Amendment Supreme Court top conference room at The case, delivered an urgent dis- Freedom Forum World Center. patch from the First Amend- In his welcoming remarks, ment trenches, and Robert S. Chairman and CEO Charles Peck, author and constitutional Overby said, “I once worked scholar, put the day’s worries with someone who said that and warnings into perspective you cannot call a meeting a by noting that attempts to cen- summit unless it is a true gath- sor speech invariably arise out ering of eagles. As I look out and of people’s fears and reminding see the eagles who are here, I the assembly that, “History know that this is truly a sum- teaches that, no matter how mit meeting about the First legitimate the fear, suppression Amendment.” never secures safety, never State of the First Amendment empowers anyone and never was written by Donna Demac, prevents ideas from gaining who researched the project for circulation.” a year as a Freedom Forum fel- In all, the intellectual fire- low. In her opening speech, power and inspirational Demac warned of a First eloquence of these proceedings Amendment in peril: “These were such that we decided to are freedoms that must be share them with an even larger fought for and won over and audience. We think you’ll over again. The first step in this agree after reading this report battle is to understand the that the State of the First threats that we face.” Amendment Conference was, Her remarks set the tone and in fact, a gathering of the First the standard for a day of invigo- Amendment eagles.

rating presentations and discus-

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State of the First Amendment

Turmoil Beneath a Tranquil Surface ○○○○○○○○○○○○○○○ n December 16, 1997, one day after the First SPEAKER Amendment’s 206th birthday, 130 attendees Opacked a Freedom Forum conference culminating a Donna Demac year-long project on the state of the First Amendment. One Fellow reason for the high interest, unfortunately, may be the pre- The Freedom Forum carious state of our nation’s First Amendment freedoms. These freedoms have to be won every day, as Freedom Fo- rum Fellow Donna Demac has long argued. Demac, who produced the State of the First Amendment report released at the conference, is a lawyer, scholar, and the author of two 1 books and numerous other articles and publications. Her

speech opening the conference follows.

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By Donna Demac

he State of the First consider the current contro- Amendment report versy over Internet ratings. A T conveys mixed con- few weeks after the Supreme clusions because our society Court struck down the Com- today is ambivalent. On the munications Decency Act in surface, the environment 1997, major Internet-service seems peaceful. There is no providers, prodded by the heavy-handed suppression White House, publicly an- of dissidents, nor are gov- nounced plans to rate ernment officials shutting Internet sites and block down newspapers. Instead those deemed indecent. more subtle, yet potentially This supposedly benign dangerous, threats abound. effort to restrict access to cer- Government entities, as well tain parts of the Net raises as groups of citizens, have some important issues about taken some very troubling private censorship. First, is actions. this form of information This is a time when control a good thing, and threats to the First Amend- does it fit with the goal of ment are more complex than free speech and hope for a

ever before. For example, communications medium

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with enormous potential to speech pose serious First Department official stated, aid the expansion of people’s Amendment problems. the plan was not to license knowledge about the world? Clearly this debate contains journalists but “to license Second, will rating systems important legal and moral the right to do business developed by private compa- issues which are not easily transactions on Cuban soil.” nies stay private, or is the in- resolved. How tame that sounds. But direct tie-in with govern- Still another difficult area is this a sufficient rationale ment a problem? Already, an involves the so-called Hit for licensing the media? aura of virtue has freed these Man controversy. A book by News organizations permit- companies from public-inter- that title included graphic ted to open Havana bureaus est obligations such as dis- detail on the art of assassina- received licenses good for closure about which sites tion. Several years ago a con- just one year—suggesting have been blocked and by tract killer followed its in- that renewal might be what criteria. structions, murdering several linked to the media organi- Another problem area is people in Maryland. The vic- zations’ performance. To the so-called “hate speech” tims’ relatives later sued pub- date, only the Cable News debate—the conflict be- lisher Paladin Press, charging Network has received ap- tween traditional thinking that the publication of Hit proval from Fidel Castro to 2 open a bureau—which is a condition for obtaining a There are more subtle, yet still license—while nearly a dozen media organizations have applied. This new type potentially dangerous, threats to of restraint on press freedom should be monitored the First Amendment. closely. Next, welfare reform passed in 1996 dismantled about freedom of speech Man aided and abetted the the old system of federal as- and attempts to control killer. The case, still making sistance, in its place encour- speech meant to intimidate its way through the courts, aging organizations such as others based on their race, raises tricky issues. The knee- churches to get involved. religion or gender. Advo- jerk reaction is to say that Participating churches are cates of hate-speech regula- mere speech should always not required to remove reli- tion agree with critical race be protected. On the other gious symbols and may share theorist Mari Matsuda that hand, some First Amend- church doctrine with the “tolerance of hate speech is ment scholars argue the First people they assist. Some say not tolerance borne by the Amendment is not intended this is nothing new and that community at large. Rather to protect the content of a it involves churches in their it is a psychic tax imposed book such as Hit Man. traditional mission. Critics on those least able to pay.” A fourth example of the argue that allowing churches First Amendment pieties, greater complexity of First to share their beliefs with, some argue, mainly benefit Amendment threats in our even to evangelize, those the haves of our society and society is a provision of the they help breaches the tradi- often ignore the disadvan- Helms-Burton Act of 1996, tional separation of church taged. On the other hand, which established a licens- and state and will involve there is no getting around ing system to open news bu- churches deeply in govern-

the fact that controls on reaus in Cuba. As a Treasury ment functions.

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These are all complicated points this country toward an the respondents knew the areas. era in which the public can five freedoms. Only 11% In addition, more use technology to broaden knew that the First Amend- straightforward forms of cen- our knowledge of the world ment includes freedom of sorship continue. Oklahoma and of one another. the press. These are indi- City police not long ago Another positive step oc- vidual liberties, really the seized copies of the film The curred when the Supreme bedrock of what makes ours Tin Drum, not only from Court decided last June to a vibrant democracy. video stores but from people in their homes who had rented the video. Barnes & The Supreme Court’s ruling against Noble was indicted for selling allegedly obscene mate- the Communications Decency Act is rial in some of its stores. And the courts are increasingly exhilarating. It points this country toward willing to seal criminal and civil records so the press cannot see them, let alone in- an era in which the public can use form the public. In criminal 3 cases, sentencing terms are technology to broaden our knowledge routinely available. But civil- case settlements are often se- of the world and of one another. cret, keeping the public in the dark about product de- let stand a ruling that recog- So, even if today’s First fects that injure or kill hun- nized artists’ First Amend- Amendment issues are more dreds of people. For ex- ment rights. This case complex and sometimes ample, a protective order stemmed from an attempt subtler than ever, and public that sealed litigation records by the Giuliani administra- understanding of these free- kept the dangers of silicone tion in New York City to doms remains inadequate, breast implants hidden for ban artists from displaying the only hope for the future eight years. or selling their works on the is that some people will Alongside all that trou- sidewalk. continue to stand up and bling news, there have been Finally, I included a chap- defend the five freedoms. bright spots. At the top of the ter on civics education in As has been said many list is last year’s Supreme the report. As the poll done times, these are freedoms Court’s veto of the Commu- for this project shows, most that must be fought for and nications Decency Act. After people in this country are won over and over again. more than a year of serious unaware of exactly what The first step in this battle is worrying, the Supreme Court freedoms the First Amend- to understand the threats

ruling is exhilarating. It ment protects. Only 2% of that we face.

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Ray Jenkins retired, The Sun, Baltimore: The Mike Godwin Electronic Frontier Founda- Paladin case is now before the Fourth Cir- tion: Another factor is that The Tin Drum cuit en banc, to determine whether the was released in the late ’70s, prior to the three-judge panel correctly held that Pala- 1982 Supreme Court ruling in the Ferber din Press could be sued for a reader’s ac- child-pornography case and prior to many tions. What do you predict? laws now on the books addressing so-called “child pornographic content.” Demac Based on the history and what con- tinues to be a strong belief that words don’t JJ Blonien Enterprise Communications: I kill, my sense is that those suing the pub- used to be a newspaper publisher for about lisher will not succeed. 22 years, and now I publish on the Internet. We see throughout the country legislation Ronald K.L. Collins If private corporations to regulate the Internet by placing the onus have a right not to be compelled to air of censorship on the service provider. In 4 views in newspapers, television and radio Wisconsin we just defeated a bill, intro- stations or other properties they own, why duced for the third time, that would have doesn’t the First Amendment protect the held us responsible for the content of any same “right” for Internet service providers? electronic document we publish. Legislators Why do online entities have a standing dif- want to shut down the information even ferent from newspapers, television stations though it is technically impossible. We or shopping-center owners? could always move computers offshore. Leg- islators just don’t understand that Internet Demac You raised several unresolved issues, technology has no boundaries. Does Con- but I think what is most important, legally, gress understand that you cannot legislate is that it is still open to question whether an the world of information? Can we as a online service is a publisher or whether it is country legislate censorship or restrictions more like a common carrier. on information worldwide?

Tom Simonton Society of Professional Jour- Demac I take that as a rhetorical question, nalists: The Tin Drum circulated widely and I wonder what you suggest should be about 15 or 20 years ago without incident. the zone of liability for someone like your- Why is this suddenly an issue in Oklahoma self. Would you like it on a parallel with City? newspapers?

Judith Krug American Library Association: Blonien Absolutely. The whole issue began because one person wanted to clean up the library, and when he Paul McMasters I suspect Congress under- got his hands on The Tin Drum, he took it to stands this is a real issue with Americans. a judge who viewed 11 minutes and de- There is a certain amount of ignorance, clared it child pornography. Subsequently, therefore fear, of this new technology, and of course, the issue involved video stores the word about the Internet’s scariness has and the confiscation—or as the police put gotten out ahead of the word about its po- it, the giving back—of the film when police

went to video renters’ homes.

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tential and promise. Those concerned about Bob Richards Pennsylvania Center for the Internet content have been better organized First Amendment, Penn State: Donna, your and gotten out in front with their message a report looks across all First Amendment ar- lot sooner than the other folks. Those in the eas. Does any one pose more perilous prob- community who take their First Amend- lems than the others? ment rights for granted have not been so quick to tell the other side of the story. Demac Time and again, I have thought to myself that our First Amendment goals are Jim Keat Maryland-Delaware-DC Press As- being trumped by money, and what do we sociation: The answer to whether Congress do about that? Powerful corporations have can legislate worldwide, unfortunately, is First Amendment rights now, and there are yes. Congress does it when it tells Canadian clearly situations in which, if you take an and French firms they cannot trade with absolute line, governments cannot establish China or Cuba. It stretches all kinds of any safeguards with regard to advertising of American rules and expects the world to go harmful products, for example. The report along. Now, I don’t happen to approve of it, doesn’t cover this, but with regard to media but it is a real danger that if Congress gets concentration, the pools of big money are whipped into a frenzy, it could do things in having a dampening effect on free speech in the middle of the night as it did a few years our society. So, I cannot find one biggest is- 5 ago with motor-vehicle records. sue. These all are big, complicated problems with regard to carrying the goals of the First

Amendment into the 21st century.

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Speech on the Fringe

Many Want Protection to End Where Offense Begins

peech on the fringes of First Amendment protection ○○○○○○○○○○○○○○○ is the category most frequently under attack and MODERATOR considered for regulation and restriction. However, as S Robert O’Neil moderator Robert O’Neil said, “If it is speech, then almost Director by definition it cannot really be on the fringe. Some mes- Thomas Jefferson Center for the sages are concededly more controversial than others. They Protection of Free Expression, are harder to defend or harder to understand, but in a sense, University of Virginia just by being on the fringe, we cannot say that they are somehow less deserving of First Amendment protection.” 7

The following speakers provided insight into the tensions, ○○○○○○○○○○○○○○○ crosscurrents, complexities and inherent difficulty of these SPEAKERS issues in four primary areas of speech under siege today. Marjorie Heins

Director ○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○ Arts Censorship Project, VIOLENCE American Civil Liberties Union

By Marjorie Heins Ronald K.L. Collins Director want to talk very briefly love feast of his children’s Foodspeak Coalition for about three themes—art, flesh. He cuts the extremi- Free Speech, Center for Science in the science and law—and let ties, feet and delicate hands I Public Interest me start with art. into small pieces, scatters “Menelaus hacked them over the dish and Joan Bertin Pisander between the eyes, serves it.” Director the bridge of the nose, and The first two of those National Coalition bones cracked, blood three extracts you will rec- Against Censorship sprayed, and both eyes ognize from The Iliad. The Elliot M. Mincberg dropped at his feet to mix in third is from Agamemnon by Legal Director the dust. Aeschylus. All three are and General Counsel “Little Ajax lopped the quoted in a report published People for the American Way head from the corpse’s limp last spring by the Associa- neck and with one good tion of the Bar of the City of heave sent it spinning into New York, entitled Violence the milling fighters like a in the Media. Obviously, I ball.” could regale you with Atreus made his brother countless other examples of Thyestes a feast of his own gory literature, art and children, “a feast that popular entertainment in all

seemed a feast for gods, a media throughout history.

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Violent behavior—every- least since 1952, when Con- and what causes humans to thing from kids battling in gress held its first hearings act aggressively and violently the schoolyard to genocidal on the subject. Almost 50 … Some [psychologists] see world wars—has been part years and many studies aggression as an innate hu- of human history since its later, what do we really man drive which demands inception and, accordingly, know about the mysterious discharge in some form. a critical subject for artists, mental mediation through Evolutionary psychologists historians, cartoonists, tra- which millions of individu- see it as a naturally evolved gedians, TV scriptwriters, als of diverse ages, person- response to particular envi- video-game creators, pup- alities, family histories, ge- ronments. … Finally, there pet-show performers, Nobel netic makeups and life are psychologists who be- Prize winners, crime-fiction experiences process the in- lieve aggressive behavior is authors, manufacturers of undation of art, literature, learned from the environ- “serial killer” trading cards, journalism, advertising and ment. It is primarily these country music singers and other information sources theorists who have looked particularly at television and violence. … For over 30 Scapegoating art and entertainment years researchers have been 8 attempting to discern the re- for social ills remains a perennially lationship, if any, between aggressive behavior and television violence. The results popular American political sport. remain controversial, and skeptics abound.” opera composers. that comprise our culture? Why, then, is Congress A December 1993 report Often one is accused, and and a large portion of the from Sen. Byron Dorgan (D- I am among those, of either American public persuaded N.D.) summarized a one- hopeless bias or pathologi- that media violence affects week survey of TV violence. cal denial if one questions behavior? Let me suggest Among the shows contain- the supposedly well-estab- that the “social learning” ing the highest numbers of lished “proof” that media theorists, who believe ag- violent acts per hour were violence causes aggression. gression is learned from the The Miracle Worker; Civil War The facts are more ambigu- environment, have received Journal; Star Trek 9; The Un- ous. On this point I com- undue attention because touchables; Murder, She Wrote; mend to you again the City that is where the grant Back to the Future; Our Cen- Bar Association report. It ex- money is. That’s where the tury: Combat at Sea; Teenage plains, in part: grant money is because Mutant Ninja Turtles, and “The subject of violence scapegoating art and enter- Alfred Hitchcock’s North by and aggression in psychol- tainment for social ills re- Northwest. The Dorgan re- ogy is vast. … What is most mains a perennially popular port nicely illustrates the striking, even after sampling American political sport. overbreadth problems that a small amount of this lit- Final theme, law. The arise from attempts to label, erature and thought, is how ACLU wrote a recent brief to block, regulate or ban vio- little agreement there is the 2nd U.S. Circuit Court lent content in the media. among experts in human of Appeals involving a Second theme, science. behavior about the nature Nassau County ban on sell- Violence in the media has of aggression and violence, ing to minors trading cards

been blamed for social ills at

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depicting “heinous crimes.” crime,’ the remedy cannot be not applicable to kids. Nev- It says, in part: censorship.” ertheless, the Nassau County “The very premise of the We won that case last case was in line with every law … is constitutionally re- week but not because the court decision I am aware of pugnant. … Whether relying trading-card law tried to cen- involving attempts to regu- on social-science studies or sor bad ideas. The court late violent content in the general ‘common sense’ be- found the law unconstitu- arts or entertainment. That liefs, our most fundamental tional because Nassau is, all such attempts have What do we really know about the mysterious mental mediation through which millions of individuals process the information sources that comprise our culture? 9

First Amendment ideals bar County had not proven it been struck down. government from regulating would serve the Indeed, the fact that speech because it is thought government’s “compelling speech about violence, short to give people ‘bad ideas.’ In- interest” in protecting mi- of incitement, enjoys full deed, if the law were other- nors from psychological constitutional protection no wise, virtually any work of harm or criminal conduct. doubt explains why Con- art, entertainment or news The assumption here is that gress in last year’s V-chip law reporting could be banned. if Nassau County had been adopted an indirect method One obvious target would be able to make a factual case of television censorship—a the Bible, which contains ex- against “heinous crime” convoluted scheme of man- tensive descriptions of vio- trading cards based on so- datory blocking technology lence. … The Supreme Court cial-science evidence, then combined with supposedly has ruled many times that the court might have permit- “voluntary” industry ratings. government cannot pass laws ted an exception to the First It remains to be seen ‘aimed at the suppression of Amendment. The court ei- whether the new govern- dangerous ideas.’… Whatever ther ignored the principle ment-compelled ratings will ‘moral’ harm Nassau County that government may not survive constitutional attack. believes … is caused by censor “bad ideas,” or it sim-

speech that depicts ‘heinous ply thought the principle

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By Ronald K.L. Collins

The Washington Post recently fects as it presses for accep- commercial speech? ran an interesting story tance of an idea.” Given Furthermore, does the about the Ku Klux Klan’s at- that, what if the conse- speech in question amount tempt to buy underwriter or quences of speech are more to a criminal threat? This sponsorship ads for “All than unsettling? What then? was the issue a few years Things Considered.” It We talk a lot about “hate back in U.S. v. Baker (E.D. sought to purchase air-time speech” and the “hate-speech Mich., 1995), concerning from a National Public Ra- doctrine.” Let us be clear at whether or not a student’s dio affiliate in St. Louis. The the outset. There is no hate- words on the Internet Klan claimed that if a pub- speech legal doctrine. The Su- amounted to criminal lic-funded radio station runs preme Court has never, if threats. Did the speech vio- underwriter ads by the Lexis-Nexis can be trusted, late federal law? If so, the NAACP and B’nai B’rith, used the words “hate speech” question was whether the then by the logic of RAV v. in a majority opinion. The statute violated the First 10 City of St. Paul and other term has only appeared in a Amendment. The court cases, the station cannot dis- concurring opinion by Justice never reached the First criminate on the basis of Byron White in RAV v. City of Amendment question be- content. The Klan argued it St. Paul. cause it found that the al- had a First Amendment Hence, to attack hate leged threats did not violate right to air its views in a speech, assuming it can be federal law. But that does not public forum equal to the defined, is to attack it indi- deny the possibility, the ev- right of other organizations. rectly. That is, it is a cause in eryday reality, that criminal I think that claim brings us search of a legal doctrine. Just threats consistent with the to this topic of “hate as racism and segregation statute might well withstand speech” in a very sharp way. once were attacked indirectly, constitutional scrutiny. By and large, Americans just as the 14th and 15th Finally, does a regulation believe in the power of the Amendments couldn’t be amount to state action? For word—not that the word is used to frontally attack rac- example, if the government always successful but that the ism prior to Brown v. Board, so says, “No racial hate speech,” word can change minds. It today attacks on racist ex- that might well violate the can help democracy. It can pression and on hate speech First Amendment as currently improve our environment. It must be attacked indirectly. constructed. But if an can improve our cities, our Therefore, many ques- Internet service provider bars culture, our faith in mankind tions arise. For example: Is hate speech, using filtering and womankind, too. So, at the expression in question devices to find and block it, least, goes the noble account protected speech or unpro- arguably the online service’s of the First Amendment. tected conduct? Does a law action not only cannot be Well, if the word has target speech itself or the regulated by the government power to do good, it also has “secondary effects” of but constitutes a First the power to harm. Justice speech? Does the expression Amendment right in and of William O. Douglas made a in question fall under a tra- itself. Government censor- telling point when he said, ditional First Amendment ship violates the First Amend- “Speech may strike at preju- exception—e.g. fighting ment, whereas private cen-

dices and have unsettling ef- words, libel, obscenity or sorship is protected by it.

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It is quite often said that speech occur on a college cam- Canada and Israel among hate-speech regulation is a pus? Or does the hate speech them, ban hate speech. Their slippery slope. I submit that occur in a public or private high courts have upheld the slippery slope metaphor workplace? Recently, the Su- those bans, and I think the isn’t very helpful. Life itself preme Court denied certiorari debate would be far better in- is a series of slippery slopes. in a case where a municipal of- formed by looking to devel- I risk slippery slopes every ficial was fired for engaging in opments in Canada or Israel. day with my four-year-old hate speech connected to his Finally, I would like to say who is becoming increas- job. I think the outcome had a that to talk about hate speech ingly sophisticated in argu- lot to do with the fact that the in the context of Supreme ing about why he has to go speech occurred in the em- Court doctrine is to ignore to bed at 8:30. Even if we ployment context. something very important— lend credence to the meta- Does the speech occur in the culture of free speech. phor in the hate speech a public forum? Does it oc- That is, there may be a First context, it works against us. cur on TV, radio (FCC v. Amendment right to engage Arguably, to permit racial Pacifica), or does it occur on in whatever we define as hate hate speech of one type the Internet (Reno v. ACLU)? speech. But that doesn’t could engender more racial Does the notion apply in mean the culture will honor hate speech of another type, face-to-face contact, where that right. For any society 11 and another type, and an- the likelihood of fighting wedded to the equality prin- other type, until the threat of racist acts becomes clear and present. There may be a First Amendment I see a broader philosophical issue here, too, right to engage in whatever we define concerning equality or anti- discrimination principles on as hate speech, but that doesn’t mean the one hand, and free speech or liberty principles the culture will honor that right. on the other. In the 1960s, the equality and liberty words is greater? If so, com- ciple, any society mindful of principles joined forces. The pletely different standards the threat of discrimination First Amendment thereby come into play. All of these and racism in a post-Holo- helped to dismantle racism. contexts raise questions caust world, will impose con- There was a time when the about hate speech and sequences on anyone who First Amendment and the whether it will or will not be publicly engages in expres- 14th Amendment worked in regulated. sions of hate. And it is well tandem to fight discrimina- In the United States, we and right that it do so. Those tion, racism and bigotry. To- First Amendment defenders non-governmentally sup- day, with some merit, have varied stripes but none- ported consequences may be Catharine MacKinnon and theless hold to a certain social, they may be personal, others argue that the First chauvinism. We think that but that is a part of the cul- Amendment is on a colli- the United States, and the ture of the First Amendment. sion course with equality. United States alone, got it That culture may not always The question of context is right when the Supreme be in harmony with the Su- also quite relevant when con- Court rendered its St. Paul preme Court, but it is still a sidering race hate speech is- opinion. I mean, other civi- part of the First Amendment

sues. For example, does the lized, democratic societies, as we know it.

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By Joan Bertin

he pornography depiction is, or appears to image that looks like a child, debate framed by be, of a minor engaging in whether or not it is a child, T Catharine MacKinnon sexually explicit conduct.” and about how those images and Andrea Dworkin is rela- The phrase “sexually ex- affect the observer’s mind. tively quiescent, except per- plicit conduct” was in the We are really back in the haps on college campuses. prior statute, but “appears old-fashioned thought-con- What is important now is — to be a minor” and “com- trol arena here. The assump- not surprisingly — con- puter-generated image” are tions are that such materials nected to our perhaps obses- new. The Act further defines stimulate sexual crimes sive rhetorical focus on the sexually explicit conduct to against minors and that welfare of children. We are include “lascivious exhibi- anyone interested in view- fighting about The Tin Drum, tion of the genitals or pubic ing such materials should be Lolita and Jock Sturges pho- area.” This amended statute punished. tos, and these debates relate significantly expands child- The Tin Drum case is 12 to two developments. pornography law. based on a comparable state One is the Child Pornog- In the 1982 Ferber case, statute. This 1979, Oscar- raphy Prevention Act of upholding the New York winning film contains no 1996. The second is the na- State child-pornography explicit sex scenes. It has tional sentiment that seems statute, the Supreme Court’s some suggestive scenes in- to permit, if not encourage, rationale was that it was ap- volving young Oscar, who is prosecutions undreamed of propriate and necessary to born into pre-World War II 10 or 20 years ago. criminalize child pornogra- Europe and refuses to grow up because of his disgust with what he sees around him during the war years. It The dominant idea is that if you can is a complex allegorical movie, like Günter Grass’ fa- control undesirable images you can mous book, from which it was drawn. control undesirable actions. Consider next the difficulty of getting an American distributor for the new film I want to read from the phy to protect children used version of Lolita, starring Child Pornography Preven- in its production—the Jeremy Irons. Some reasons tion Act. It now defines premise being that if you why this movie is not being child pornography as “any created sexually explicit im- circulated relate to film-in- visual depiction—including ages using actual children, dustry economics. However, any photograph, film, those children were harmed, the potential threat of pros- video, picture or computer and that harm justified a ecution for a movie about or computer-generated im- limitation on any First pedophilia is simply so great age or picture, whether Amendment rights that that the topic is now off- made or produced by elec- might otherwise exist. limits for the genre. tronic, mechanical or other Plainly, Congress now is The final case-in-point re-

means … where such visual simply concerned about an lates to the protest against

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Jock Sturges’ books. Sturges on the erotic. Greek vases Brigham Young University. is a fine-arts photographer had some pretty racy stuff As the curator of this travel- whose works hang in many around the edges. In some ing show said, “Well, you museums of great renown. versions of Romeo and cannot really have a Rodin He takes pictures of Juliet, the young lovers con- show unless you are willing naturists — in other words summate their relationship. to show nudes because that nudists — in France and Sex-education materials was his metier.” California. Many works are for teenagers and even films These events epitomize a intergenerational pictures of about sexual abuse of mi- problem endemic in the naturists who have fre- nors, female genital mutila- First Amendment area, and quented the same beach in France for years. Sturges has been targeted by Randall Terry, who now leads a We are really back in the old-fashioned group called Loyal Opposi- tion, and by Focus on the thought-control arena here. Family. Other photogra- phers have been similarly targeted, but the Sturges tion and the like, if they in- that is confusion and 13 books have received the volve minors, would pre- conflation of thoughts, most attention, and Terry’s sumably be outlawed by this ideas and actions. The followers have defaced them statute, even if made to op- dominant theme is that if in book stores. pose child sexual abuse or you can control undesirable These books depict nude female genital mutilation. images you can control un- children who are uninhib- We are talking about all desirable actions. ited in the way in which kinds of historical, scientific A little anecdote illus- they sit around and pose. and artistic expression that trates the problem and how There are no pictures focus- the Act does not exclude, far it goes into other sectors. ing on the genital area. not to mention morphed or At the Internet Online Sum- There are no sexually sug- fantasy images. mit, Vice President Gore gestive pictures, unless you The focus on nudity as a said that just as it is parents’ think a child’s nude body or form of child pornography duty to lock medicine cabi- a pre-adolescent body is in has spilled out into other ar- nets and protect young chil- itself pornographic. eas. A San Francisco book- dren by covering electrical Think about everything store owner recently wanted sockets, so it is their duty to that would go down the to know if he could be pros- lock off portions of the tubes if the Child Pornogra- ecuted because two women, Internet containing sexual phy Prevention Act were en- with children in strollers, imagery. forced as its language sug- complained about a poster It struck me then that we gests it could be. with a picture of a nude really have reached a crisis, Some of you may have male in the store window. A if we equate the physical seen the painting by Balthus woman in Tennessee called harm from an electrical called “The Guitar Player.” about trying to exhibit a charge or poison with some Balthus was plainly inter- painting called “The Philly unknown, undefined and ested in the young female Flasher,” which is exactly hypothetical harm that body, and “The Guitar what it sounds like. Sculp- might occur from seeing a Player” demonstrates that tures of nudes were removed sexual image.

interest, certainly verging from a Rodin exhibition at

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By Elliot M. Mincberg

his subject is a bit dif- other First Amendment is- importance of retaining the ferent from the other sues is that it stems from full protection of the First T topics we’ve consid- two events that in my view Amendment. ered. For one thing, a very, should never, ever be Some of the controversy very serious proposal has mixed—a political campaign cooled by late that summer. arisen to amend the Consti- and a controversial Supreme Nonetheless, Congress passed tution to allow government Court decision. the Flag Protection Act, to ban flag desecration. After the Vietnam War, which advocates hoped Second, flag desecration the debate about flag des- would pass constitutional makes for strange bedfel- ecration was relatively qui- muster. But few of us were lows. Among those who escent until 1988, when surprised when the Act was claim it should be illegal are Gov. Dukakis vetoed a Mas- ruled unconstitutional in not just the American Le- sachusetts law calling for a 1990, in U.S. v. Eichmann. By gion, but also Adrian mandatory Pledge of Alle- then, the public had tired of 14 Cronauer, the “Good Morn- giance. President Bush used the issue, and the Supreme ing, Vietnam” disc jockey this to question Dukakis’ pa- Court became more temper- who opposed military cen- triotism, campaigned in flag ate. In fact, Eichmann drew sorship, and Supreme Court factories, and things went only one temperate dissent Justice John Paul Stevens, upward or downward from joined by four justices, and who wrote the decision there, depending on your the dissent specifically criti- striking down the Internet point of view. cized the manipulation of the flag for partisan purposes. The issue stayed quiet Amendment backers want to ban until 1994, when the Repub- licans gained control of desecration because of what it both houses of Congress. As a bipartisan matter, Con- gress also became more con- communicates. Opponents argue servative, opening a new opportunity for flag-amend- against a ban for the same reason. ment supporters. Addition- ally, the American Legion censorship law. The other This primed the political and other amendment side, those who have op- reaction in 1989 to the Su- boosters tried to help enact posed flag desecration laws, preme Court’s 5-4 Johnson it by forming the well- includes not just People For decision, which found a funded Citizens Flag Alli- the American Way and the Texas flag-desecration law to ance. In 1995, only a hand- ACLU but arch-conservative be unconstitutional. The ful of Senate votes stopped voices like George Will, Wil- Court’s language on both Congress from approving an liam Safire, The National Re- sides inflamed much rheto- amendment. view and Justice Antonin ric about the shame of al- Like so many other is- Scalia. lowing the flag to be burned sues, the issue has now re- The third reason this or desecrated as a unique surfaced. The House of Rep-

controversy differs from national symbol versus the resentatives recently

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approved a flag amend- tion because of what it com- For those and other rea- ment, and the Senate will municates. Opponents ar- sons, many of us oppose the undoubtedly consider it gue against a ban for the proposed amendment. To around one of the upcom- same reason. To paraphrase balance Mr. Cronauer, I will ing patriotic holidays. We Voltaire, I disagree with quote someone often on the hope, again, for a small mar- what you say but will de- other side of the political gin of victory in the Senate. fend to the death your right agenda from those like me. So, what are the substan- tive arguments on both sides? Supporters argue that Flag burning is a problem seeking flag desecration is not speech but conduct, of an a solution. Desecration increases especially repulsive nature. They claim public support, based on polls they helped whenever somebody tries to ban it. sponsor, and say the flag is a unique national symbol that to say it. In fact, when the Sen. Mitch McConnell (R- deserves unique protection. American people under- Ky.) wrote, “Those who Let me read from Adrian stand that you’re talking burn the flag deserve our 15 Cronauer because I think he about changing the First contempt, but they should put it for his side very well: Amendment, the support not provoke us to tamper “The flag is qualitatively dif- for a flag amendment drops with the First Amendment. ferent from any other sym- significantly, as The Free- After all, among the values bol we have in this country. dom Forum poll showed. the American flag symbol- It represents things that are Flag burning is a problem izes is free speech, even uncommonly powerful, seeking a solution. Desecra- those ideas with which we both intellectually and emo- tion increases whenever disagree. While we revere tionally — love of country, somebody tries to ban it. the flag for the values and the country itself, patrio- I’m also concerned about history it represents, we tism, and the sacrifices that vagueness, overbreadth and cannot worship the flag as have been made on behalf the slippery slope. Would a an end unto itself, and we of our nation for genera- flag-desecration amendment cannot coerce people to re- tions. I have concluded the apply to art? To commercial spect the flag in the manner flag has a secular sacredness exploitation of the flag? To in which we know it de- that entitles it to a special the web site with a com- serves to be respected. To do form of constitutional pro- puter image of a burning so would be tantamount to tection, one that can be flag? Moreover, how in the imposing a speech code and achieved without under- world can we truly stop with our own conservative brand mining the basic values of the flag as the only symbol of political correctness.” the First Amendment.” we are concerned about? Patriotism undoubtedly is Few would claim that flag What about Roseanne’s des- an important issue here, and burning incites sexual mis- ecration of the National An- the following passage ex- conduct or violence, despite them a few years ago? What presses the experiential argu- a few claims on the violence about displaying the Nazi ment, so to speak, from score. It clearly is an issue flag or swastika, which James Warner of the National about the message sent by clearly cause many people Rifle Association, who was a flag burning. Amendment pain equivalent to desecra- prisoner of war in Vietnam:

backers want to ban desecration of the U.S. flag?

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“I didn’t appreciate the proves that you are wrong.’ astonished to see pain com- power behind the views ‘No,’ I said, ‘That proves pounded by fear in his eyes. about the flag and freedoms that I am right. In my coun- I have never forgotten that before I was a prisoner of try we are not afraid of free- look, nor have I forgotten war. I remember one interro- dom, even if it means that the satisfaction I felt at using his tool, the picture of the burning flag, against Freedom “is the best weapon we have.” him. We don’t need to amend the Constitution to —James Warner punish flag burners. They burn the flag because they gation where I was shown a people disagree with us.’ hate America and they are photograph of some Ameri- The officer was on his feet afraid of freedom. What bet- can protesting the war by in an instant, his face purple ter way to hurt them than burning a flag. There, the of- with rage. He smashed his with the subversive idea of ficer interrogating me said, fist onto the table and freedom? Don’t be afraid of ‘People in your country pro- screamed at me to shut up. freedom. It is the best test against your cause. That While he was ranting, I was weapon we have.”

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Harvey L. Zuckman Institute for Commu- The second part of your question has to nications Law Studies, Catholic University: do with giving parents information. We must What, if anything, is wrong with Congress look at the kind of information a rating sys- mandating hardware circuitry in the televi- tem provides and who really makes the decision set, or software in a computer, that can sions. These are private industry ratings. We allow parents to decide what they want don’t know who really decides which marks their children to see? and symbols the shows get. It is going to be difficult for raters to make subtle judgments Marjorie Heins The hardware itself, of about whether the violence is gratuitous, course, accomplishes nothing without a rat- whether it is valuable, whether it is educa- ing system, and Congress did not think it tional, or whether it is likely to lead a child could affirmatively mandate that. But it to be traumatized or become violent. These tried to accomplish the same result through are judgments on which there is little agree- semi-coercive measures. Now we have a ment, and so there are going to be numbers complex system awaiting FCC approval that and letters assigned to art that don’t give par- includes both age-based and content-based ents any useful information and certainly ratings. Congress was not interested only in don’t give them actual control over their ratings in general; it targeted violent and children’s upbringing. sexual content. It focused on what it considered harmful, ideas it didn’t like and wanted Ronald K.L. Collins Even if one agrees with to discourage if not completely suppress, the laudable idea of parental control, the and it went as far as it thought possible to- question is whether or not the technology ward censorship and a law it thought could will do what it portends. That is, can it re-

be upheld. ally do what parents hope? Furthermore,

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many recent arguments also reveal that fil- Collins It’s healthy that you are conflicted. tering software is discriminatory. If the word I think a society that is not conflicted about “gay,” “lesbian” or “homosexual” appears, hate speech, that sees even liberty sans for example, a web site may perforce be equality as an absolute, invites a certain deemed objectionable. Here, too, the ques- tyranny. Concerning the St. Louis NPR case, tion is whether the software delivers in a insofar as the government decides to with- way that does not in itself offend our values. draw funds from public radio and public television, it invites commercialization of Joan Bertin The notion of parental control those media. We can call it “underwriting,” is very appealing but problematic as a way but the ads are getting longer and more to mediate culture wars. When we talk commercialized. If NPR says, “These aren’t about parental control, we blur the distinc- really commercials; these are statements tions between 6-year-olds and 16-year-olds. that underwrite public-service sorts of We forget that at some point children de- things,” then all of a sudden they are no velop an independent right and interest in longer commercial speech. They are politi- knowing about the world of ideas even if cal speech, meaning the claim for content their parents don’t want them to. We also neutrality becomes substantially stronger. blur the point about parental duties to help In terms of hate speech, I think too children handle offensive ideas and images. many, often well-intentioned First Amend- 17 Ratings and the V-chips foster the notion ment defenders fail to appreciate the hu- that you deal with the world by shutting man societal cost of protecting hate speech. out what you don’t like. Right there, you What is so wonderful about the First lose the essence of the First Amendment, Amendment is that it involves an experi- the notion that our rights are best served by ment, as Holmes said. And experiments can robust debate and the willingness to look fail. We have examples in Nazi Germany of the full range of ideas and images in the eye failed experiments, including experiments and respond to them. Apart from the legal in speech. To defend the First Amendment concerns, we should talk about values and is to defend risk-taking. We need to remem- how parents teach children how to respond ber that. to unpleasant things. On the strictly legal front, the blurring of Solange Bitol ACLU: Does Mr. Collins see lines between government and private ac- any First Amendment implication in federal tion is very, very scary. Congress threatens hate-crime statutes, particularly the recent to act if the industry doesn’t respond volun- proposed expansion of the federal hate- tarily. Well, “voluntarily” has no meaning if crimes definition? you know that members of Congress have bills ready, often already introduced, man- Collins One of the real difficulties with so- dating that you do this, or else. called “hate crime” legislation is there are already a variety of ways to prevent or pun- Bob Becker attorney: This is directed at ish hate crimes indirectly. When lawmakers Ron Collins. I, too, read the Washington Post regulate hate speech, there is always a defi- article about the Klan, and I had a decidedly nitional problem: Are we regulating an act queasy feeling in my stomach when I fin- or expression? To regulate hate speech con- ished because I couldn’t figure out which sistent with existing law, regulators must side I was on. How do we discern where our aim not at speech but rather at its “second-

First Amendment feelings reside here? ary effects.”

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Elliot M. Mincberg I wanted to point out at least in part, for the intent behind their that after RAV v. St. Paul, the Supreme Court acts. If not, you would have to eliminate the issued another decision, Wisconsin v. Mitchell, distinction between first-degree and other which distinguished between hate speech forms of murder. How far that goes I don’t and what we popularly call hate crimes, think has yet been fully resolved. crimes motivated by a specific intent. There is a point at which the law punishes people,

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The Freedom Forum Poll

Public Opinion: Much to Celebrate, Much to Improve

he Freedom Forum commissioned a nationwide poll ○○○○○○○○○○○○○○○ on public attitudes toward the First Amendment as MODERATOR part of the State of the First Amendment project. T Lawrence T. McGill Ken Dautrich, director of the Center for Survey Research Director of Research and Analysis at the University of Connecticut, conducted The Freedom Forum the poll and analyzed it in Chapter 6 of the report. The poll Media Studies Center shows that Americans are conflicted about First Amendment freedoms: very supportive of the First Amendment in the

abstract but wavering when confronted with specific in- ○○○○○○○○○○○○○○○ stances of objectionable speech. Here are the perspectives SPEAKERS 19 on the poll and its results by Professor Dautrich and others. Ken Dautrich Director

Center for Survey Research and ○○○○○○○○○○○

○○○○○○○○○○○○○○○○○○○○○ Analysis, University of Connecticut THE POLL Bob Wyatt By Ken Dautrich Professor of Journalism and Director, Office of Communication Research espite the plethora Our study dealt with a Middle Tennessee of polls in America wide range of public atti- State University D today, few have fo- tudes about the First cused completely and com- Amendment, including the Kenneth A. Paulson prehensively on First importance of different Senior Vice President and Executive Amendment issues. Three rights; the salience, aware- Director landmark studies can be ness and knowledge of First The Freedom Forum identified since 1950. One Amendment rights; and the First Amendment Center, Nashville back in the 1950s, during viability of the First Amend- the McCarthy era, looked at ment in contemporary soci- political tolerance and ety. We wanted to know: Are largely concluded that Americans satisfied with the Americans are intolerant of current degree of freedom in many rights guaranteed by the areas of speech, press the Constitution, particu- and religion? To what ex- larly First Amendment tent do Americans support rights. The second, in the restricting First Amendment late 1970s, arrived at similar freedoms under certain cir- conclusions. The third, in cumstances? 1991, was conducted by Bob Here are some of our find-

Wyatt, who is on this panel. ings, beginning with the per-

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centage of Americans that the low levels of knowledge gion. However, only 50% consider each of eight rights about specific rights. say the press has the right to be essential, including Despite Americans’ lim- amount of freedom, with First Amendment rights. ited knowledge about the 38% saying that the press Among the First Amend- First Amendment, the vast has too much freedom. ment rights, 81% said the majority—fully 93%—would Our poll confirmed past right to practice one’s chosen approve the First Amend- studies, which found that religion is essential; 72% said ment in a vote today. high support for First free speech is essential; 66% Response to another ques- Amendment rights in the said freedom from religion is tion, related to the “slippery abstract drops in response to essential; 66% said a free slope” argument, showed specific examples. While press is essential, and 56% Americans are wary of gov- most, 90%, believe in free- said the right to peaceably ernment restrictions, espe- dom to express unpopular assemble is essential. Less cially of First Amendment opinions, support falls radi- than 10% said that no First freedoms. More than eight cally for sexually explicit or Amendment freedom was ei- in 10 agreed that once re- offensive expression. ther important or essential. strictions are in place, fur- Despite low levels of tolerance for sexually explicit 20 material, there is some evidence that the public has The First Amendment is alive and become more tolerant than in the past. We found a 14- well ... at least from the perspective point increase since 1979 in the percentage of Americans of the American public. agreeing that school libraries should be allowed to include novels with sexually However, the ability to ther restrictions become explicit content. name specific rights guaran- easier to enact. Bear in mind, We also explored support teed by the First Amend- though, that when the poll for examples of press free- ment was not terribly im- specified expressions or prac- dom. With the exceptions pressive. Almost half, 49%, tices that might be unpopu- of using hidden cameras named freedom of speech, lar, support for those respec- and televised projections of but 37% could not name tive rights plummeted. election winners while polls any of the five First Amend- Another important point is are still open, most people ment rights. Those other the intensity with which largely support press free- than free speech were speci- people agreed with the slip- doms under a variety of cir- fied by only one in five, or pery-slope argument. Most cumstances. They decisively fewer, respondents. This who agreed with the argu- endorsed the idea that tab- finding has implications for ment “strongly” agreed. loid newspapers should the education system. As Americans sense that have the same freedom to the poll bore out, most they have the right amount publish what they want as Americans receive little or of freedom in each of three the so-called “elite” papers. no First Amendment in- First Amendment areas— In terms of government’s struction in grammar press, speech and religion. role in the TV ratings sys- school, high school or even About eight in 10 say Ameri- tem, there appears to be a in college. Clearly the lack cans have the right degree large increase in the percent

of instruction is apparent by of freedom of speech or reli- saying that giving the gov-

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ernment the power to de- personally feel free to ex- tions, and they feel quite cide on TV content is a vio- press themselves in a variety free to express themselves. lation of the public’s right to of situations – 70% say they Despite these reasons to watch what it pleases. have not in the past year be optimistic about the state When we compared 1979 to been in any situation when of the First Amendment, the current survey, there is they did not express them- there are areas of concern. an increase (from 39% to selves because they thought Majorities are willing to 63%) in the percentage of they might be penalized for agree with practices that people who feel that gov- doing so. blur the line between ernment power to decide Overall, the First Amend- church and state. Majorities which TV programs can or ment is alive and well in support restrictions on free cannot be shown violates 1997, at least from the per- speech when it comes to the public’s right to watch spective of the American sexually explicit and offen- what it pleases. Our survey public. A strong majority say sive material. The educa- also found that, by a 52% to that the First Amendment tional system is not doing a 44% margin, Americans say rights are not just important very good job in providing government should not be but essential to American so- instruction on First Amend- involved in TV ratings. ciety. The vast majority say ment issues. And while When it comes to reli- that they would vote to ap- most feel the right amount 21 gious freedoms, most people prove the First Amendment of freedom is offered for supported several examples today. They would be reluc- speech and religious expres- of religious expression in tant to amend the Constitu- sions, many feel the press public schools, including al- tion to restrict First Amend- has too much freedom. lowing a public-school ment freedoms. I think the broad picture teacher to lead prayers. With the exception of from this survey suggests Even so, when Americans sexually explicit and offen- that we have much to cel- were asked if they would sive material, the majority ebrate in how Americans support a constitutional support free speech in par- feel about the First Amend- amendment allowing local ticular circumstances. There ment, and there is much communities to decide on are a few situations where more that can be done to prayer in schools, they re- press rights are not sup- further improve Americans’ jected the idea by a margin ported. Americans under- knowledge and views of of 55% to 42%. stand the slippery-slope First Amendment rights. The survey found that problem when it comes to

most people say that they First Amendment restric-

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By Bob Wyatt

In a book following my teaches people to answer a siderable resistance to un- 1991 poll, I wrote, “Free ex- multiple-choice question popular and offensive pression is in very deep correctly. It is raising the speech, paints a bit too rosy trouble.” However, I focused general level of education a picture of journalism. In a lot of that interpretation that over the last 20 or 25 controlled experiments, a on free speech around the years has increased support former colleague of mine fringes. I think Ken Dautrich for free expression. demonstrated that usually, if focuses a lot of his interpre- If you look at data from you give a right to the tation on the broad support the University of Chicago’s people, say, the right to en- for mainline free speech. General Social Survey, you dorse a candidate for office, We First Amendment will see that support has oh, two-thirds will support near-absolutists tend to get dropped dramatically for it, but if you give it only to rather hysterical when we banning books from librar- the press, only about half think about what might hap- ies if written by homosexu- that number, or one-third, 22 pen on the Internet or at our als. Support for racist mate- would support it. In this re- local book store. The Barnes rial has not dropped, gard I think the current sur- & Noble down the pike from incidentally. We must real- vey does not contain tough- me is under assault, yet it is ize that support for very enough questions about valuable to understand that challenging, very offensive, press rights; for example, there is broad support for free very harmful expression— the right to criticize the speech, at least in abstract and I favor protecting ex- military during the Persian principle. My study and oth- pression even if it is demon- Gulf War. Finally, I think there have probably been enough stud- It is probably time to try to ies to get the general idea: the more you dislike it, the understand … how education leads less likely you are to support it. That includes me and people to support free expression. you, not just the unwashed American public. It is probably time to try to under- ers have emphasized that strably harmful—is still very stand the mechanisms that when things get bothersome, high in this country. lead people to support free offensive or challenging, that I think the current sur- expression, particularly support drops out the bot- vey, also, taps into a lot of those mechanisms by which tom. Therefore, I like to say general anti-government education leads people to that people believe they be- rhetoric. For instance, I support free expression. lieve in free expression, but think we could get fairly Does education raise sup- when it pushes them to the large numbers of people to port because it raises general brink, they do not. ratify anything that began tolerance for pluralism, for I agree that education is with the phrase, “Congress different ideas, or does it key to increasing support for shall make no law.” raise support for free expres- free expression, but not just I also think this survey, sion because it teaches

the kind of education that although it does show con- people to engage in prin-

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cipled reasoning—that is, to reason from them as to play without covering a take the general principles whether or not you want to book by Jock Sturges?

of the First Amendment and let the local book store dis-

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By Kenneth A. Paulson

This is an interesting study anything if couched the What is so encouraging that asks some questions proper way. However, there here, though, is that core of that haven’t been asked in were other parts of the sur- support for ratification. If any depth before. We can vey couched in the same you could imagine the First overreact to some of them. glorifying language, and the Amendment being a private That only 2% of Americans respondents just didn’t go corporation, calling in some can name all five freedoms in that direction. folks from Madison Avenue is interesting, but only criti- On the flag-desecration and Wall Street and saying, cal if you are playing the issue, Elliot Mincberg “Here’s the deal. We’ve got 23 home version of Jeopardy. pointed out that when this company, it’s been pri- At the American Press In- people know a ban involves vate, and it’s got a 93% sup- stitute, virtually every amending the Constitution, port and acceptance factor,” month, we hold sessions support for a ban drops to the Madison Avenue person with seasoned journalists from the U.S. and a few folks from Canada and else- We try to remind people daily that where in which John Seigenthaler and I do a basic 90-minute discussion of the the First Amendment has to be protected, First Amendment—its past, its present, its future—and that there are issues in our everyday one of our stock questions to begin the session is to lives with First Amendment implications. ask, for five points, how many freedoms there are in 49%. But the very next would be dancing in the the First Amendment and question was fascinating. aisles, saying, “All we need then, for 10 points, to name When that 49% was told is a slogan and a mascot, them. About 20% of the that an amendment prohib- and we are in business.” The teams get it right. iting flag-burning “would be Wall Street person would go, So, in any survey there the first time any of the “We clearly need a public of- are things you can react to freedoms in the First fering of this product. This and overreact to. I will say, Amendment have been can be sold.” though, that the notion amended in 200 years; That is part of the chal- that 93% would ratify is as- knowing this, would you lenge here. All education is tonishing, encouraging and still support an amendment positive, but one thing we exciting. I also agree with to prohibit flag-burning?” a attempt with The Freedom some of the sentiment that full 88% still said, “Yes.” Forum’s web site (http://

people will buy just about That was really surprising. www.freedomforum.org) is

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to remind people daily that most fall into the category waves.” It said “sing.” It the First Amendment has to of goofy. It didn’t surprise didn’t even say “in public.” I mean, there could be a First Amendment risk in your shower. There may be “What is so encouraging here, though, no better question for con- versation starters than that is that core of support for ratification. one, and I appreciate the fact that you put it in. Many questions in this be protected, that there are me that 38% say the press study suggest, depending on issues in our everyday lives has too much freedom. your perspective, a glass half- with First Amendment im- What amazed me is that full or a glass half-empty, but plications. We can draw on 49% said musicians should this is one of those subjects that enormous good will for not be allowed to sing songs where we all need to make the First Amendment. with words others might sure that glass is pretty much Some results in the study find offensive. It didn’t say filled to the top. floored me because they al- “record.” It didn’t say “air-

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Leslie Harris Leslie Harris to read you some rights Bob Wyatt But is it essen- Associates: As someone guaranteed by it. Tell me tial when the Nazis are who’s been a lobbyist for how important it is that you marching in Skokie? That, the First Amendment, I am have that right. Is it essen- you see, is the challenge. struck that among the core tial, important but not es- Again, it is very abstract, freedoms for a functioning sential, or not important?” and each of us has his or her democracy, we haven’t When it comes to, “You own hot-button issues over talked about the remarkable have the right to assemble, which we would shut down lack of support for petition- march, protest or petition a march. I would not bet ing the government. It feels the government about 100% that there is not some like maybe we have moved causes and issues,” 56% said form of expression even a people to support the Hare that it is an essential right. First Amendment absolutist Krishnas in the airport, but Another 36% said that it is wouldn’t restrict. when it comes down to important though not es- some of the core things we sential. Again, it is largely a Dan Kubiske Society of need to function as a na- question of interpretation. Professional Journalists: I tion, the study makes me Is the glass half-full or half- am really happy to see that fairly pessimistic. empty? My interpretation is 93% would vote for the First that if 56%, a majority of Amendment, but I wonder, Ken Dautrich We asked, Americans, say it is essen- if the First Amendment were “The U.S. Constitution pro- tial; that is fairly high. reworded, words we weren’t tects certain rights, but not raised with, would it still everyone considers each pass by such an overwhelm-

right important. I am going ing majority?

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Wyatt There is still a lot of the First Amendment. We Ethel Sorokin Center for experimental research about tried to keep the question at First Amendment Rights, phrasing the question in dif- its bare bones so the word- Hartford, Conn.: Given the ferent ways to see if changing wouldn’t necessarily af- answer that 70% have not ing the words makes a dif- fect the responses. been in any situation when ference. Simply rephrasing they didn’t express them- as to whether individuals Richard Schmidt counsel selves for fear of being pe- have the right or media for the American Society of nalized, that seems like a have the right would make a Newspaper Editors: Mr. pretty free precentage. I difference, for instance. Paulson said that the survey mean, those people go to showed 88% would vote for work. They go into public Kenneth A. Paulson One a flag amendment; I think and social groups and meet- exercise we do with college that was 88% of the 49%. ings of all kinds. I wonder students at the First Amend- ASNE, the American Bar As- whether the fact that, say, ment Center is called “Sec- sociation and a couple of seven or 10 major compa- ond Thoughts on the First other brave organizations nies control all major media Amendment.” We tell a have been fighting to pre- affected that outcome—that group, “This thing is old, it’s serve the integrity of the Americans actually don’t got this stodgy language. First Amendment as it con- have as many diverse opin- 25 Let’s rewrite the First cerns flag-burning. In the ions as a group as they may Amendment, build the ABA survey, an overwhelm- have had in the past? World Wide Web into this, ing percentage said, “No, we build e-mail into this. What do not wish to amend the Dautrich That is a good are we going to protect and First Amendment.” So, I point. It is not something what aren’t we?” You would hope we understand that we asked specifically in this be amazed. When they come the response referred to a survey. In another poll early back with the rewrite, more majority of a minority. in 1997 for the Newseum, often than not, the original however, we asked a na- 45 words are still there. Paulson Exactly, but when tional adult sample their at- that minority, or that 49%, titudes about media mergers Dautrich Paul, Larry and I cast their vote and then it and the role of corporations agonized over how to ask was explained to them, “Do in media ownership. About this question because the you realize what you are do- two-thirds of the respon- way you ask can affect the ing with this?” a full 88% dents found those develop- results. So, we decided to still said, “No, we will stick ments problematic.

present the actual text of with our position.”

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The Trashman’s Triumph: Taking Principle to the Supreme Court

Heroism on the First Amendment’s Front Lines ○○○○○○○○○○○○○○○ n 1991, Keen Umbehr from Wabaunsee County in north MODERATOR central Kansas lost his longstanding trash-hauling con- Itract with the county commissioners because of his vocal Gene Policinski and rather extensive public criticism in many venues, in- The Freedom Forum cluding newspaper columns that criticized the commissioners for practices he didn’t feel were appropriate.

With the Justice Department siding with Mr. Umbehr, ○○○○○○○○○○○○○○○ the Supreme Court endorsed the concept that contractors SPEAKERS do enjoy the same First Amendment protections as employ- Keen Umbehr ees, a 7-2 decision by the Court in June 1996. Plaintiff 27 His case has deep implications for the future, a future in Board of County Commissioners which the government is making ever-increasing use of v. Umbehr contractors rather than full-time employees, an estimated Robert Van Kirk 300,000 alone in the Defense Department. Plaintiff’s attorney Because Keen Umbehr pursued his First Amendment rights, Williams & Connolly, the principle might even be extended to establish that con- Washington, D.C. tractors may actually enjoy more protection than full-time employees because they are less likely to cause a sort of disrup- tion in the government office’s chain of command, where arguably there is a necessity at some point to salute and move forward. Following are remarks from Keen Umbehr, the man who guaranteed for a lot of us the right to gripe.

—Gene Policinski ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KEYNOTE ADDRESS

By Keen Umbehr

am not an author, a you pull the trigger and file scholar or a lawyer. I’m a First Amendment lawsuit, Ia trashman from Kansas. it is a war. So, today I want When Paul McMasters to frame my remarks as a re- asked me to speak about port from the front lines. what it’s like down in the My story begins in 1981, trenches in a First Amend- when I bid on and received ment lawsuit, I thought, a trash-collection contract you know, that is a real from the Wabaunsee good analogy because that County Commissioners. For

is exactly how it feels. Once 10 years, everything was

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fine until I became inter- On one occasion, the vestigated and concluded ested in local county gov- commissioners forcibly re- that public resources had ernment. There seemed to moved me from a public been improperly used. be things that didn’t add meeting so they could talk Now, you can imagine the up. So, in my spare time I privately to employees of county commissioners had started researching my sus- the county Road and Bridge just about had enough. I had embarrassed them. I had caused investigations. I had Once you pull the trigger and file a destroyed their credibility. Elections were coming. The First Amendment lawsuit, it is a war. newspaper editor and I both had county contracts that picions and made numerous Department. I warned them neither of us could afford to open-records requests. Im- that they were violating the lose and stay in business. mediately, the county com- Kansas Open Meetings law I guess about here I missioners changed their and suggested they seek should answer the obvious open-records policy, making counsel. One of them quite question: By publicly criti- it so difficult and expensive proudly told me, “It will be cizing the very government 28 to get records that they were a cold day in hell before we officials who hold your out of reach for most take advice from a trash- contract in their hands, people. I was so angry that I man.” After I wrote about aren’t you biting the hand wrote my first column for this, the state Attorney Gen- that fed you? Aren’t you the local newspaper, charg- eral investigated and found petting the bulldog against ing the commissioners had the commissioners had vio- the fur? That is exactly violated the Kansas Open lated the Kansas Open Meet- what you are doing. But I Records Act. The county at- ings Act. He forced them to grew up overseas and lived torney researched the issue, sign a consent agreement, in some Third World coun- found the new policy vio- publicly admit they violated tries that didn’t have First lated the Open Records Act the Open Meetings Act and Amendment or civil rights, and forced the commission- to take some remedial in- so I took my rights seri- ers to rescind it. struction in open public ses- ously. I believed in my Over the next 18 sion—while I was there. heart that my constitu- months, I attended almost But the straw that broke tional rights and, most im- all of their meetings and the camel’s back was the portantly, my First Amend- started writing a weekly commissioners’ practice of ment rights were alive and newspaper column called lending county road and real, waiting to be acti- “My Perspective.” More of- bridge equipment to friends vated. I believed that expos- ten than not, I wrote about and supporters—backhoes, ing governmental corrup- the county commissioners. bulldozers, dump trucks, tion and malfeasance was at The newspaper editor agreed whatever you needed. If you the very center of what the that if I could prove my ar- were one of the chosen few, First Amendment protected. ticles with hard-copy docu- you could get the equip- I saw it as my duty to speak ments, he would print ment for work on your pri- the truth, regardless of the them—and that was a good vate property. I wrote a se- consequences. system because I wanted the ries of articles exposing this The commissioners’ re- truth printed, to guide our practice. Again, the Attor- taliation wasn’t long in discussions about the people ney General and the Kansas coming. They summoned

who govern our county. Bureau of Investigation in- the newspaper editor to a

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meeting and told him, in Another man I read a lot dismissed. my presence, “Bob, you had about is Thomas Paine, who We were thrown out of better start taking a second said, “Those who expect to court without so much as a look at what you put in reap the blessings of liberty hearing. We were seemingly your paper if you want to must, like men, undergo the defeated, deep in debt and avoid trouble.” So, I raised fatigue of supporting it.” very discouraged. We had 30 my hand. “Sir, could you You know, those are easy days to decide what to do. clarify this thinly veiled words to say, and they roll The previous attorneys we threat for me? I want to off the tongue nicely until had weren’t very crazy make sure I get it right you are faced with suing to about going forward. We here.” He was so angry, he get back something that is owed them a lot of money. pounded his fist in his palm inalienably yours: Your right That is the reality of a First and said, “Umbehr, your ar- to express your opinion. Amendment lawsuit. It takes ticles are offensive and My wife and I decided we a lot of dollars. should be censored!” would not suffer tamely and My brother-in-law Bob You know, as much heart- that we would spend what- Van Kirk, four or five years ache and trouble as this ever it took, probably a lot out of law school, offered to whole lawsuit caused, I still more than we had. So, in take the case, and we gladly am dumbfounded when I re- May 1991, we sued, alleging accepted. Bob wouldn’t al- 29 call that statement. These are that the Wabaunsee County low us to take care of any of the same men who put up Commissioners terminated his expenses, so he paid a their hands and swore to God my contract in direct retalia- big price right along with us and country that they were tion for my public criticisms. because he signed on for the going to uphold the Consti- On Dec. 30, 1993, after dis- expensive part and had to tution, yet they make a state- covery was complete, Federal spend evenings and week- ment like that—that your District Judge Richard Rogers ends preparing our appeal. views should be censored. in Topeka, Kansas, granted a In January 1995, the 10th Eventually, the commis- summary judgment for the Circuit reversed, ruling that sioners realized that I wasn’t county. He ruled that inde- independent contractors do going to quit writing articles, and the newspaperman wasn’t going to quit publish- I believed in my heart that … ing them. So, they sum- marily terminated our con- my First Amendment rights were tracts—the newspaperman’s contract to publish legal no- alive and real, waiting to be activated. tices and then my contract to haul trash. With a stroke pendent contractors working have the same First Amend- of a pen, we both lost our for the government do not ment rights as government livelihoods. have the same First Amend- employees, remanding the Samuel Adams once said, ment rights as government case back to Topeka for trial. “If we suffer tamely a lawless employees, stating, “The Of course, the county com- attack upon our liberty, we First Amendment does not missioners could not believe encourage it and involve oth- prohibit the defendants from this. If we can’t suppress the ers in our doom.” I had a de- considering the plaintiff’s ex- speech of independent con- cision to make. Would I suffer pression as a factor” in de- tractors, what’s the point of tamely? Would I dig in and ciding whether to do busi- having them, you know?

fight, or turn tail and run? ness with him. Case

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The commissioners ap- First Amendment rights.” which they work.” Indepen- pealed to the Supreme We had finally won. dent contractors and em- Court on the question of We learned many lessons, ployees at all levels who whether, and to what ex- but today I want to high- provide goods and services tent, the First Amendment light an issue that you won’t to the government need adequate ammunition in the form of knowledge. They Independent contractors and government employees need to know how to express their opinions on mat- need adequate ammunition in the form of knowledge. ters of public concern in a time, place and manner that They need to know how to express their opinions keeps them within the protective scope of the First on matters of public concern in a time, place Amendment. and manner that keeps them within the protective Under this roof today, we have the knowledge, the ex- scope of the First Amendment. perience and the expertise. In my mind, this is a logis- 30 protects independent con- find in the written opinion. tics problem: You have that tractors from retaliatory ter- I want to tell you that the here, and they need it out mination. On June 28, 1996, troops on the front lines there. We need to find a way the Supreme Court decided desperately need help. As to package it and get it to 7-2 in our favor. Sandra Day Justice O’Connor stated, the troops on the front lines. O’Connor wrote for the ma- “Because of their dealings jority, “We recognize the with the government,” rights of independent con- these citizens “are often in tractors not to be termi- the best position to know

nated for exercising their what ails the agencies for

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Gene Policinski I’m not sure I know of a Bob Van Kirk plaintiff’s attorney: First, Keen more unlucky group of people than the published in a traditional First Amendment County Commissioners of Wabaunsee forum—newspaper articles and editorials. He County when they chose these contracts to talked about issues unrelated to his own con- terminate. At the time Bob Van Kirk entered tract, not about the commissioners turning the case, he was not just Keen Umbehr’s down his price increases or not letting him brother-in-law, he also was at the Justice De- dump in the landfill at preferred times. We partment. As the case progressed, he moved were able to argue, “This is the kind of speech to the Office of the Counsel to the President the government has no business regulating.” and at one point was an Acting Deputy As- One of the decision’s disappointing aspects sistant Attorney General. Bob, what did was that the court adopted a Pickering balance Keen do right to set himself up to win in the test for independent contractors without really

Supreme Court? discussing how it should be applied, given the

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incredible variations among the roles con- there won’t be much future in that relation- tractors play. We were focused on whether or ship. People felt it was just a matter of time not independent contractors had First before the commissioners would get us, and Amendment rights at all. This question sub- we would go out of business. sumed the rest and made it difficult to focus on what test should apply. Ultimately, some Jim Keat Maryland-Delaware-DC Press Asso- federal judge is going to decide whether or ciation: How did your newspaper editor or not a given individual’s interest in speaking publisher survive during this period of time, out on the matter of public concern is having lost a big chunk of advertising? greater than the government’s interest in, for example, regulating its office environment. It Umbehr Mr. Stuewe was 72 years old, and is going to vary immeasurably from case to after his contract got terminated, I begged case. Keen did some things that weighed him to fight the case and actually provided heavily in his favor under the Pickering bal- him with the case law on point, North Mis- ance test. Other people won’t be so lucky be- sissippi Communications v. Jones, but he cause they are in situations that are less clear wouldn’t. He said he was too old and and less removed from their relationship wanted to sell out. The person who bought with the government. the newspaper vowed never to print “My Perspective” and, of course, he got the 31 Policinski Keen, you also faced pressure county advertising business back. from other contractors and some of your friends in town. Carol Ann Riordan American Press Insti- tute: Has the community gotten more in- Umbehr In a small town, everybody sec- volved in the political process and watching ond-guesses everything you do, what your the county commissioners, and are those kids do, what car you drive, how tall your supervisors still in office? grass gets before you mow it. People began to worry that I had ulterior motives in suing Umbehr After we sued, both commissioners the county. They wanted me just to take the in question resigned, thinking they some- hit because everybody took the hit. This was how would be excused from the lawsuit, the power structure. No one opposed it be- which wasn’t true. After we won, many fore me, and suddenly people had to decide people would complain to us about some what side they wanted to be on. But most government official, and I said, “I have al- people thought that my motive was just to ready paved the way. If you have a concern, bankrupt the county and make money be- put your opinion in the local newspaper, cause they didn’t understand all the intrica- and your opinion can change your situa- cies. They didn’t understand the precious- tion.” ness of First Amendment rights. It is not fun now to be an elected official What probably hurt the most was that in Wabaunsee County. The newspaper my wife and I became social outcasts. Our prints so many letters to the editor, about friends and, sad to say, even some of our even the smallest concerns. That is the kind relatives would cross to the other side of the of discourse we want, though. Now, if you street because anyone who talked to us are a government official, teacher or city- would be seen as supporting us. The com- council or school-board member, you get missioners paint with a wide brush, and no- tired of being second-guessed in the paper, body wanted to get caught up in what and you long for the old days when nobody would happen to us. No one befriends a paid attention.

man going to death row because they figure

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Policinski Bob, you now have some litiga- Keen, do you now continue to hold the tion coming, an extension of this case. contract, do you continue your trash-hauling business, and what compensation was Van Kirk I left government and joined a involved in this case? Also, it’s ironic that law firm and am currently representing a you talk about getting knowledge to the newspaper in a small Colorado resort town front lines because journalists tend to think that, like the Wabaunsee County paper, saw of themselves as the front line, and you its advertising dollars withdrawn based on have redefined that. What would you see editorial criticism of town officials. The case this information being exactly, and how demonstrates that there is more work to be would it be distributed? done. Even after Umbehr came out, the district judge said, “Isn’t this a discretionary Umbehr What I envision is a re-education function? Whether or not you pick up gar- of government employees, high-school stu- bage is an inherent government function dents and regular citizens. It has been too and something they have to do. They have long for most people to remember U.S. his- to contract for that, so Umbehr applies in tory classes that discussed the First Amend- those situations. But when you get into dis- ment, and there have been too many court cretionary situations such as whether to ad- cases since then. I see it as a general guide 32 vertise, and the government functions like to changing America, one opinion at a time. any other business entity, why can’t it do I would like to think that we are heading to- business with people it likes? Why can’t it ward a better, more efficient government do business with people who aren’t con- and one that engenders more interest from stantly stabbing it in the back?” It is tough the population. to explain to the judge that government Off the cuff, I see this as reaching three cannot act in the same ways that we can as groups. High-school students have a lot of private citizens. It has different constraints. gripes, and they need to be nurtured to ex- Ultimately, he did deny the government’s press those concerns in an appropriate time, motion to dismiss, and we are set to go to place and manner. The second group would trial this spring. be public employees’ unions, which could easily distribute information. The third Policinski Actually, if you append a sort of group would be state and national govern- support of the patronage system, and that ment groups. If we could send out an army was Justice Scalia’s argument, why can’t the of speakers to discuss this, I think it would government do it? After all, it’s always been be helpful. We could avoid a lot of lawsuits done that way. and needless suppression of speech. One of your questions was about com- Van Kirk Absolutely. I think Justice Scalia pensation. After we won in the Supreme wrote probably one of his most caustic opin- Court, we settled out of court for $100,000 ions in his dissent in this case. His best line plus attorneys’ fees. I think the total attor- was, “Day-by-day, case-by-case, this court neys’ fees were in the $178,000 range. fashions a Constitution for a country I no longer recognize,” which I thought was truly Policinski Keen, I think you said that be- extraordinary given the principles at stake. cause it was a case of first impression, you couldn’t get punitive damages. Buck Ryan School of Journalism and Tele-

communications, University of Kentucky:

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Umbehr It was the first time in more than Policinski Having spent a lot of my career two centuries that the Supreme Court had at community-size newspapers, I think the addressed the issue. Going back to the very legacy of your remarks and your legal battle first question about how I survived, I picked will be a unique flowering of First Amend- up the town contracts individually except ment opportunities for a lot of people in one, which amounted to 17% of my busi- your community. I think you are a true hero ness. Maybe you can live on 17% less, but I of the First Amendment. couldn’t because of the principle.

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Institutions Under Fire

Public Hostility Threatens Rights ○○○○○○○○○○○○○○○ ometimes, controversies about First Amendment free- MODERATOR doms involve more than individuals or issues. They Sinvolve entire institutions, and frequently they are not Kenneth A. Paulson far-off fights but right in our backyards, according to Ken The Freedom Forum Paulson. Three institutions where some of the battles are First Amendment Center, most intense today are the press, art and religion. Reports Nashville

from the front follow.

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about the poll discussed ear- that we were saving the

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country from itself, and I that. Defiance of the media For many people—and think a significant percent- now carries a particular re- this is one of the reasons I age of the American popula- spectability. have resisted using the term tion came to believe that, The biggest and most “press” instead of “media” too. Arriving in Washington worrisome question is here—local television news as a young journalist during whether people still pay at- symbolizes the media. the Nixon administration, I tention to the press (or the When you ask people what they think of the media, they often talk about blood The most worrisome question is and guts, the violence, the lack of importance of the whether people depend on the media stories that get the most attention. Weather news now crowds out even the sports for information or whether the media on local television, adding to the sense of insubstanti- represent a kind of sideshow. ality and triviality. But the worst problem 36 really felt the First Amend- media)—whether they de- facing us, meaning the me- ment might be threatened. pend on the media for infor- dia, may be one of the pro- As during other times in mation—or whether the me- posed alternatives, namely history, there remains today dia have come to represent a the Internet. Removing the a widespread temptation to kind of sideshow, entertain- media filter between people shoot the messenger who ing instead of informing. and news is touted as a brings bad news. There is How much of this wound wonderful means to em- not supposed to be bad might be self-inflicted? We power individuals, but it news now. It is post-Cold hear complaints everywhere also has made it possible for War. The Soviet Union has about the media’s focus on anything to be considered disappeared. Communism is the trivial, the personal, and journalism or reportage. I’m in retreat. How can all these the scandalous at the ex- not sure how much you things really be wrong that pense of the big issues. At a have looked recently at the media tell us about? meeting yesterday, I heard a what is regarded as “news” Like Cleopatra, who ordered very learned person say that on the Internet. There you the messenger beaten for American foreign policy is can find “newsgroups.” bringing her the bad news ineffective because the me- They distribute something about the misdeeds of dia don’t treat these issues as far from news as anything Antony far away in Rome, seriously, if they ever did. So you could imagine. politicians have a tendency it is convenient to blame the Newsgroups serve up opin- to want to beat the media media for the decline of ci- ion, if not demagoguery. for bringing bad news. As vility and civic discourse. Of The Internet has made it we see in the survey and course, the media cannot be harder, not easier, to sort around us every day, the held responsible for the way out the facts, and it is help- American people do not people treat each other on ing to create a crisis in necessarily trust the media. the floor of Congress. And America today over facts. In fact, if the question were the lack of public knowledge What are they? The urban posed with the right words, in many areas just might re- legends keep growing in we probably would find an late to the failure of our edu- size and shape. One story

easy majority confirming cational system. out there says that if you

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check into certain hotels At the same time, the me- still are disliked when seen around the country, you dia are entirely appropriate to oppose and criticize the might end up being places for experimentation, government and the institu- drugged and having a kid- for some of the culture wars tions we were taught to be- ney removed without per- or skirmishes to be fought. lieve in, the really subtle mission. All these stories are circulated on the Internet as fact, as truth, The Internet has made it harder, substituting for all that al- leged propaganda otherwise not easier, to sort out the facts. presented by the press. The irony is that, as with the tabloid media, the They are a place to take surveys show you that now Internet is presented as an society’s pulse, which is often people regard the press as alternative to the main- difficult to do through official part of the problem along stream; but in the end the channels. Some of the at- with government. If the media get blamed for much tempted remedies to the press is just one more insti- of the false trash on the problems—public journalism, tution to be distrusted along Internet anyway. That is a for one—raise as many ques- with government, then I 37 problem we will grapple tions as they answer. would submit that is per- with for quite a long time. I find it a supreme irony haps the worst fix of all that

that, although the media we could be in.

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By Amy Adler

I can think of one group sorship controversies, all in- acters and some new, con- that is even less popular volving threats to artistic ex- troversial artist who is dug than journalists in this pression: The Tin Drum, the up to horrify and shock the country, and that group problem of finding a dis- nation. Yet the NEA, bat- would be artists. Art—called tributor for Lolita and the tered and bruised, limps a “sandbox for the rich,” threat to photographer Jock along even eight years after “pork for the cultural elite,” Sturges. Something about Mapplethorpe and Serrano a bastion of perversity and art as a medium generates first became so famous. pornography, and a haven real political hostility, so it’s The NEA will be a party to for homosexuals, AIDS ac- no accident that art is on one of the most significant tivists, feminists and race ac- the front lines in many, First Amendment lawsuits be- tivists—at once worthless many censorship battles. fore the Supreme Court this and threatening. Nowhere is this political term. That is the Karen Finley Art is a good topic for a hostility toward the arts case, challenging the so- would-be censor. You can more visible than in the called “decency amend- get a lot of bang for your seemingly endless battles ments” to the NEA funding buck; Mapplethorpe and over National Endowment guidelines passed in the wake Serrano are now household for the Arts funding, which of the Mapplethorpe contro- names. We heard this morn- recur every year like a bad versy. The court will hear the

ing about some recent cen- dream, with the same char- government’s appeal from

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the 9th Circuit’s decision, all. More importantly, elimi- of the atomic bomb. The which voided as unconstitu- nation of the decency clause “West as America” show was tionally vague Congress’ re- may change nothing, be- criticized for presenting a quirement that the NEA con- cause funding decisions or, negative view of Manifest sider “general standards of for that matter, decisions Destiny and subsequently re- vised. An Irish cultural exhibition in New York was can- Museums are so nervous they celed for fear it would reinforce stereotypes about will take down a show or alter it the Irish. Four anti-lynching cartoons were removed from an exhibit at the Library of in response to the possibility of Congress, again, for fear of offending people. One curator offending just about anyone. attempted to remove a well- known work of art by Sol decency and respect for the made by institutions about Lewitt from an exhibition be- diverse beliefs and values of what kinds of art to show, cause she felt that its focus on 38 the American public” in its already respond to a hostile a woman’s pelvic area was of- funding decisions. Alterna- political climate. In a sense, fensive to feminists. tively, the 9th Circuit argued the damage of these re- David Leventhal, a white that this requirement was un- peated controversies has artist who took photographs constitutional because it in- been done and already has of black memorabilia, had vited viewpoint discrimina- ushered in a chilling effect his show canceled by the In- tion. The Supreme Court will extending beyond the NEA. stitute of Contemporary Art, use this case to navigate the As an illustration, I want the very institution where gap between Rust v. Sullivan to note some incidents of the Mapplethorpe show and the Rosenberger prece- museum self-censorship opened eight years ago. dents; Finley’s significance from the last seven or eight “Back of the Big House”—a stretches far beyond its effect years. There has been a Library of Congress show on the arts. spate of museum cancella- documenting slave life that I think the plaintiffs have tions and revisions in re- tried, according to the cura- an uphill battle. Perhaps sponse to political fears. tors, to show the dignity of this is just my pessimism af- Museums are so nervous slave culture in the face of ter having observed arts that they will take down a tremendous adversity—was battles for several years, but show or alter it in response taken down after staff mem- even if the plaintiffs win, to the possibility of offend- bers, many of them black, their victory may be a Pyr- ing just about anyone. said it offended them to rhic one. The case doesn’t Some examples concern come to their workplace and go to the primary issue sur- historical exhibitions. This is see pictures of slaves. rounding the NEA, and that just a short list. The Freud One note about these is whether to fund it at all. show in Washington, D.C., controversies—in addition There is no constitutional was canceled because anti- to the point that there is obligation to do so, and a Freudians didn’t like it. I now a self-generating qual- victory for the artists might think everybody knows ity to censorship and the be the final fuel that NEA about the Enola Gay show arts—is that they represent a opponents need to kill the and the controversy over surprising array of pressures.

endowment once and for how to present the dropping Typically, when we think of

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the real players right now in censorship battles, we think The damage of these controversies has of the conservative Chris- tian Right. I don’t want to been done and already has ushered in a discount the impact that the far right has had on art censorship issues, but the battle chilling effect extending beyond the NEA. waged by the so-called “left” Feminists and opponents of Increasingly, art is subject to is quite alive and well and “hate speech” are coming to attack from both the right reflects the changing First the fore and calling a lot of and the left.

Amendment landscape. the shots.

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By Charles C. Haynes

ometimes religious Despite some sad chapters we will muddle through as a liberty work is of prejudice, we have man- nation no matter how di- 39 Sseasonal—how many aged so far to apply the First vided or tribalized we be- Christmas carols to Amendment’s religious-lib- come. When we sue one an- have in the assembly pro- erty clauses fairly and justly other as the first resort or gram; whether to put a tree, to ever-increasing numbers of continue to demonize and creche or menorah in the people. I cannot say we are ridicule our opponents, we school lobby; sometimes “under fire” in religion as dangerously assume that we even what color paper plates much as we face a lot of chal- will win our causes without to have at the holiday party. lenges. Despite them, the tearing the fabric of the na- Even these small and per- United States remains the tion. The reality is that our haps silly-sounding issues best example in world history exploding religious diversity trigger deep emotions and of living with deep and abid- combined with our bitter ugly lawsuits. The issues re- ing religious differences. cultural wars create a public ally aren’t the Christmas tree or the prayer before the foot- ball game. They are whose Our exploding religious diversity schools are these, what kind of country are we, and what combined with our bitter cultural wars kind of country will we be? For many Americans, create a public square that is often not these are the deepest and most important issues. More broadly, conflicts over reli- only crowded but angry and hostile. gion and public life are arguments about the meaning The peril is not that we square that is often not only of religious liberty in the will become Bosnia or crowded but hostile. United States, and the out- Northern Ireland but rather I am convinced that the come of even small disputes that too many citizens take way to address these growing will shape our future lives the American experiment divisions is to ask average

together as Americans. for granted—that somehow American citizens to renew

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their civic commitment to is how to define neutrality in ment now shapes the peren- religious liberty, to think practice. The court indicated nial debate about school about how these principles that neutrality requires equal prayer. Most leading advo- should be understood and treatment when it upheld cacy groups are no longer de- applied in our time. When- the constitutionality of the bating primarily about ever the First Amendment Equal Access Act, which al- teacher-led prayer, and many Center is asked to intervene lowed kids to form religious share the recognition that in one of these issues, the clubs in public schools. government-sponsored first thing we ask people to Equal treatment also may prayers in a public school are do is to think about the extend to government ben- not a good idea. While still roots of religious liberty as efits that indirectly reach reli- contentious, the shift in em- an inalienable right for gious organizations. In phasis is good news about people of all faiths or no Rosenberger, for example, the the importance to people of faith. We ask them to reaf- court ruled that the First government neutrality, con- firm their civic responsibility Amendment may require cerning religion and the to guard those rights, even equal financial benefit, in public schools at least. for those with whom they that case, when publishing On the free-exercise deeply disagree. Finally, we religious viewpoints. In other front, recent Supreme Court 40 ask them to commit them- cases, the court indicated that rulings are less confusing selves to civil debate. The government may allow wel- but perhaps more chilling. good news is that, across the fare recipients to exercise When the court sharply cur- religious and political spec- freedom of choice as to the tailed application of the trum, Americans embrace service provider, whether reli- compelling-interest test in this task with enthusiasm, gious or secular. It remains to the 1990 decision, Employ- ment Division v. Smith, most religious and civil-libertar- The real test will come in the battles ian groups agreed that the free-exercise clause had been over public policy, where deep religious all but removed from the First Amendment. Govern- ment apparently may re- and philosophical convictions now strict religious practice through generally applicable collide with increasing fury. laws, and religious individuals and groups will have to and I think that is good be seen whether the court depend upon the whims of news for the United States. will extend this equal-treat- a legislative majority. I Any discussion of the ment principle to upholding thought that was what the state of religious liberty in a school-voucher program in- First Amendment was in- America today must take cluding religious schools. tended to prevent. into account how the Su- Some court watchers say the Congress’ attempt to re- preme Court interprets the court is ready to uphold store the compelling-inter- First Amendment. For a ma- vouchers. Upcoming rulings est test by passing the Reli- jority of the present Supreme will do much to define anew gious Freedom Restoration Court, “no establishment” what the court means by Act was short-lived. The Su- still appears to mean that neutrality. preme Court declared the the government must re- A similar debate about law unconstitutional, saying

main neutral. The question neutrality and equal treat- Congress had exceeded its

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powers. Some states are con- and made commitments to sion into practice and get sidering their own RFRAs, take religion more seriously schools to take it seriously. and members of the Free Ex- in the curriculum. The greatest test will not ercise Coalition are discuss- One statement we concern religion in the ing other remedies, includ- crafted—endorsed by the schools or the workplace. It ing possible federal Christian Coalition, People will concern public-policy is- legislation. Somehow, we have got to find a way to re- store the free-exercise clause We have managed so far to apply to the First Amendment. Some of these Supreme the First Amendment’s religious-liberty Court debates have actually strengthened many citizens’ clauses fairly and justly to ever- resolve to make religious liberty work better for more of increasing numbers of people. us. For example, the recent presidential directive on religious liberty in the federal For the American Way, vari- sues where deep religious and workplace—drafted with the ous national educational philosophical convictions 41 help of the American Jewish associations and many collide with increasing fury— Congress, the Christian Legal others—states that public abortion, homosexuality and Society, People For the Ameri- schools may neither incul- parental rights, to mention can Way and others—is an cate nor inhibit religion. just three. How we debate, outstanding example of how They must be places where not only what we debate, is Americans can work together religion and religious con- critical. Ultimately, these de- across religious differences to viction are treated with fair- bates will challenge us to re- maintain government neu- ness and respect. This is a affirm our commitment to trality while protecting the shared vision across the po- the guiding principles of reli- right to practice one’s faith. litical and religious spec- gious liberty, principles that Another example is the trum. In 1995, President we hope in the 21st century search for common ground Clinton announced direc- will enable citizens with deep in the schools. Scores of tives for schools on how re- religious differences to con- school districts have crafted ligion and religious liberty tend robustly but civilly with new policies protecting stu- should be treated. The chal- one another.

dents’ religious-liberty rights lenge is to translate that vi-

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Mike Godwin Electronic Frontier Founda- when Internet users’ investigations exposed tion: I was a little disturbed at Mr. Ungar’s the fraudulence of Time magazine’s dismissal of the wild rumor and speculation cyberporn cover story. you see on the Internet. We have tolerated it in barber shops and bars for years. The Sanford Ungar I am delighted to have the Internet has corrected errors in more tradi- Internet compared to barber shops and bars

tional journalism, for example in 1995, because much of what is on the Internet is

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about as reliable as the discussion in those Limbaugh, Howard Stern, Geraldo, Imus— venerable institutions. Sometimes it is quite contributed to the lack of respect for the reliable, depending on where you go, the journalistic-based media? time of the evening you stop by, and how crowded it is. I think it is an apt compari- Ungar In a word, yes. But it is all part of the son. Of course, people on the Internet have natural evolution of the product in some helped correct media mistakes. I think that’s ways. Some media at the last turn of the cen- excellent. I don’t dismiss the Internet. I’m tury made very questionable contributions trying to raise some cautions, and you only to the public discourse, and newspapers have to get caught up in one of these things competed for circulation in New York City once to feel cautious. About a year ago I had based on how sensationalist they could be. a forum at my university about some aspect But the age of yellow journalism passed of political or governmental coverage, and eventually. we were visited by people who called themselves “independent investigators” who Tom Simonton Society of Professional Jour- were working on, their words, “the assassi- nalists: Parochial schools seem to have poli- nation of Vince Foster.” They tried to take cies that students need not take religion over the forum. It was a pressing moment classes, but I have heard of requirements in 42 for them, but an inappropriate one for us some places, too. What is the situation in and offensive to some of the panelists. terms of parochial schools requiring reli- I ruled them out of order with some diffi- gious instruction? culty, and as it happens, you must believe me, for the only time in 12 years of doing Haynes Of course, it is their right to do so, these forums, the room’s sound system but I think a big question is what will hap- failed. By the next morning this pen if vouchers are adopted. Will religious “newsgroup” on the “assassination” of schools have to change their ways? The Sev- Vince Foster vilified me as somebody who enth-Day Adventists, for example, don’t was part of the conspiracy because I turned take aid for their schools because they want off the sound. It was really quite vitriolic complete freedom to teach what and how and went on for a couple of weeks. It was a they want. Even voucher proponents are bruising experience for me, and it gave me nervous about whether the program will an intense personal lesson about what can come with strings attached, keeping people go on in the name of open discussion. from instructing the way they wish. It is in Now, I don’t challenge the right of those the spirit of the First Amendment that reli- people to say anything about me they like, so gious schools can teach as they wish, and I long as it doesn’t put me in some kind of dan- hope we preserve that. ger, and it didn’t. But later, one of my stu- I think all students should be exposed to dents showed me how my address could be various religious perspectives. Public schools found on the Internet, my house pinpointed need to do this, too, if we are going to un- with a star, which was slightly chilling. derstand one another. The better job we do I worry that the Internet is given greater in creating a public-school culture that credibility than the bar or the barber shop treats religion fairly, honestly and openly, as a locale for discussion of matters like this. the less support there will be for leaving the Lots of people advance it as the new cure to public schools. Public schools have been ei- alienation and disaffection in America. ther imposing or ignoring religion, but we are offering a third model that will be good JJ Blonien Enterprise Communications: for everybody, including religious schools.

Have talk radio and tabloid TV—Rush

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Elliot M. Mincberg People For the Ameri- have certain exhibits unless there are some can Way: One of the two states with an ex- dollars to be had. Specifically in Los Angeles perimental voucher program, I think Wis- a few years, a public art museum had a consin, provides that kids attending Ferragamo shoe exhibit sponsored by religious schools on vouchers not be re- Ferragamo lock, stock and barrel. Folks in- quired to attend services and that the cluding myself wanted to take issue with schools should not teach “hatred based on Ferragamo and some of their history and religion.” This raises all sorts of difficulties practices by way of artistic exhibits. The entangling the government. The opposite of museum categorically opposed the idea. that—to say, “Let them do whatever they Any comment about the dangers of com- want”—would commit public funding for mercialization of public museums and the purposes that people may be concerned threat in terms of censorship? about. I wholeheartedly agree with what Charles said about teaching about religion Amy Adler You are pointing out an example in the right way. But the Fort Myers, Fla., of what happens when we lose public fund- case about a Bible-studies course shows that ing of the arts and turn to private sponsors. people can talk about doing it right when in It’s funny, Philip Morris is an extraordinarily fact they are doing it wrong, and it requires generous funder of the arts, certainly in New a lot of scrutiny on a case-by-case basis. York, and no one ever says a word about the 43 cigarettes distributed at Philip Morris events. Ronald K.L. Collins Artist groups are con- The problem you point to is bigger than just cerned, in light of the funding wars, about a funding issue. It is age-old, in fact, and goes commercialization of museums and how, back to the history of patronage.

with greater frequency, museums won’t

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The Medium Is the Target

New Technology an Excuse for New Censorship ○○○○○○○○○○○○○○○ ctivists and regulators offended by speech of a sexual MODERATOR or violent nature often try to restrict it by regulating A the mode of communication, especially when a new Adam Clayton Powell, III or fairly new technology is involved. A good example is the vice president Telecommunications Act of 1996, which sought to regulate The Freedom Forum “indecent” material on the Internet and violent and sexual content on television with the V-chip. There have been

similar efforts at the state and local levels directed at video ○○○○○○○○○○○○○○○ sales and rentals with sexual content. The following speak- SPEAKERS ers address the First Amendment implications of these gov- Robert Corn-Revere 45 ernment activities. attorney

Hogan and Hartson ○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○ Ann Beeson TELEVISION attorney By Robert Corn-Revere American Civil Liberties Union Chris Finan elevision is every- motes freedom of expres- executive director body’s favorite sion. Third, we need to ex- The Media Coalition T whipping boy, either plore the concept of “volun- because they feel it is just tary” self-regulation. mindlessly stupid, a vast First, technology as the wasteland, or because, con- issue. Reno v. ACLU was a stitutionally, people believe cause for celebration. The they get free rein to treat it Supreme Court looked at as they will. The issue is the Internet and said, “This somewhat broader. You can- is a protected medium. We not really treat television as see nothing in our prior de- a medium apart and intelli- cisions to treat this any dif- gently discuss the regulatory ferently from anything and judicial issues facing it. else.” In some post- There are three over- mortems, you see this un- riding issues. First, the issue derlying theme: “Protect us. isn’t television. The issue is We are not TV, for God’s technology. Second, quite sake. We are the Internet.” often there is an effort to It’s not that simple. In create an architecture that the Reno decision, the court enables control rather than distinguishes the Internet

an architecture that pro- from some precedents, for

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example, Pacifica v. FCC on No one would assume, for So, you don’t have to indecency. But I don’t think example, that you could re- look far to see that regula- you can read into it a simple quire a Braille edition of The tions once thought the statement that if it’s not New York Times, although it province of one medium are television, you cannot regu- might be a good idea. Yet the extending to all. More and late it. Within two weeks of government recently im- more media have electronic the Reno decision, the Fed- posed captioning require- components, which means eral Communications Com- ments for video distributors, the First Amendment will look very different in the future if those assumptions You don’t have to look far to see that aren’t challenged. We are seeing the begin- regulations once thought the province nings of that in the move- ment toward digital television. The FCC allocated of one medium are extending to all. spectrum space and developed a transition plan to- mission read it as upholding both broadcast and cable ward digital television, so 46 broadcast regulation, despite television. there will be less and less dif- the fact that it wasn’t about Then there is the old ference between technolo- broadcast regulation and standby, indecency regula- gies, such as between regular that the court’s discussion of tions, that have not been television and the Internet. broadcast precedents was permitted in the print It is important to pay very tepid. Reno is the first excep- world—and now in the careful attention to what tion, a wonderful and major Internet world—yet still ap- regulators have in mind for exception, to the history of ply to broadcast and increas- one medium when you treating new technologies, ingly to cable. think about how it might ap- at least initially, as second- These examples always ply to others. For example, class citizens under the First have been treated as an ex- the Gore Commission is Amendment. ception to First Amendment looking at public-interest re- Governments have felt analysis, not the rule. More quirements for television free to impose regulations on and more, people contend and digital-TV broadcasters. new media that you would that broadcast regulations are The recommendations the never think about if you the rule and that anyone commission comes up with were talking about the print who would live without will be important not only medium. Regulation is ac- them must justify their ex- for the television industry cepted as commonplace for ception to the exception. but the Internet, to the ex- broadcasting. The Fairness That was the argument in the tent we are talking about a Doctrine, for example, Internet case. Former FCC social-compact notion which which required government Chairman Reed Hundt said it can extend those regulations oversight of editorial bal- would be reasonable to put to other media, regardless of ance, is not allowed for all media under some obliga- whether they use the broad- print. Thank God, the FCC tion to serve the public inter- cast spectrum. The Commu- finally decided to discard it est. He said it would be won- nications Decency Act is Ex- on its own. Another example derful to require Internet hibit A, because that was a is the children’s television providers to hook up more broadcast regulation simply regulation requiring a quota connections for educational transposed and applied to

of educational programming. institutions, for example. the Internet.

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The second major issue: woodwork saying that sim- television has gone through the means of control. ply wasn’t enough. We that even if it is just to People argue that control- need, they said, what we in amend Webster’s, I think we ling the architecture is not the First Amendment busi- need to figure out what the regulation, that the V-chip ness see as a red flag: a con- word “voluntary” means. is not regulation, just a voluntary system that will give us a tool to choose our tele- The issue isn’t one medium versus vision programming. To say that is not regulation takes another. It is a much broader one some doing. Adopted as part of the Telecommunications Act of of how technology will be treated 1996, the V-chip requirement provided for the FCC under the First Amendment. to set technical standards for broadcasters to transmit tent-based ratings system. The FCC still hasn’t told ratings information, while Most of the industry agreed us whether the industry’s an FCC advisory committee to add content-based flags: S rating system is acceptable. 47 would recommend ratings for sex, V for violence, L for It also has a technical pro- guidelines. It gave the in- language, D for suggestive ceeding on V-chip transmis- dustry a year to come up dialogue or FV for fantasy sion standards and has with voluntary guidelines, violence. documented its intent to in- which the FCC would then Sen. John McCain (R- stall V-chips in any appara- accept or not. Otherwise, Ariz.), one of the primary tus receiving television sig- the FCC would impose its congressional voices urging a nals, including personal own guidelines. The overrid- voluntary solution, told The computers, and to rate pro- ing message is that the V- Washington Post, “This was gramming regardless of the chip is voluntary, and if the voluntary in that we in Con- transmission source. Now, industry knows what is gress did not dictate the that went unnoticed for good for it, it will come up terms of the agreement, and awhile, and a number of with a rating system, and it yes, we expect everyone to parties thankfully have filed did. Ted Turner probably put comply with it.” He ac- objections with the FCC. it best: “We are voluntarily knowledged the threat of But the language indicates having to go along.” legislation but said American how regulations can easily, The industry came up families would be happy sometimes subtly, bleed with a system based on the with the result. NBC chose over from one technology Motion Picture Association not to go along with it, and to another. The issue isn’t of America’s movie ratings, they are under pressure as a one medium versus another. with age-based categories result. The word “voluntary” It is a much broader one of and exempting news and is used a lot these days, and I how technology will be sports programs. It took think it is important to learn treated under the First about, oh, two hours or less from the experience that Amendment.

for critics to come out of the

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By Ann Beeson

We ought to feel pretty tri- municate or access sexually First, minors, including teen- umphant. We’ve won sev- explicit material. [The court agers. Second, marginalized eral important battles, the has since ruled the law un- or controversial speakers, in- first being the Supreme constitutional.] cluding artists, speakers about Court’s unequivocal rejec- You would think we gay and lesbian issues and tion of the Communications should be feeling optimistic. disseminators of hate speech. Decency Act in ACLU v. Unfortunately, I am frus- Third, the poor and disen- Reno. The second was our trated, worried and most of franchised, who may not victory in the District Court all quite angry. even have a telephone, let in New York in American Li- In ACLU v. Reno, the alone a computer. They need brary Association v. Pataki, in lower court said the Internet to get on the Internet at the which the judge ruled that was the most participatory public library. Finally, of online indecency regulation mass medium the world has course, people all over the violated the Constitution’s yet seen. The Supreme world who see the Internet as 48 commerce clause. Court wholeheartedly their only chance to partici- A third victory, in ACLU agreed and commented that pate in democratic debate. v. Miller, struck down a Internet content is as di- Rating speech on the Georgia statute that would verse as human thought. Its Internet is not just about la- have criminalized pseud- very architecture encourages beling information. It is onyms or other anonymous free expression. The second about what happens after Internet communication. generation of battles over the labeling. The whole pur- We also won an important free speech on the Internet pose behind the rating District Court victory in U.S. will concern protecting that scheme, make no mistake, is to block access to whole categories of speech. First and The whole purpose behind the rating most importantly, minors will be blocked. The whole scheme, make no mistake, is to block rationale behind the debate is that we need to protect access to whole categories of speech. minors from information that is “harmful” to them. v. Bernstein, which we hope democratizing and equaliz- Minors’ rights were an the 9th Circuit will affirm, ing quality. All of these important part of ACLU v. finding the government’s battles have to do with ac- Reno, in the sense that many encryption regulations to be cess. Who is going to get to Internet content providers “an unconstitutional prior speak in this medium and believe minors to be a crucial restraint.” And on behalf of who is going to get unfil- audience. One [such pro- several university professors tered access? vider], the Critical Path AIDS in Virginia, Marjorie Heins This second wave of Project, offers a wide variety made a compelling oral ar- battles will be just as threat- of information to fight AIDS gument against a Virginia ening as the Communica- written in terms geared to- statute forbidding state em- tions Decency Act. They will ward teen-agers. Teenagers ployees from using state- be about whether to exclude even wrote affidavits in the

owned computers to com- certain groups of speakers: case, some of the most pow-

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erful I believe the Supreme puter and suspend your li- bidding political use. More Court has read. Neither the brary privileges. Obviously, recently at both high school lower court nor the Supreme that is a grossly unconstitu- and college levels, we see Court ruled on the minors’ tional policy and one we all policies that forbid student rights point, but it is crucial need to fight. newspapers to publish to remember that a wide va- Yet another policy we see online the real names of any riety of evidence showed no is a parental-permission re- of the students. How do you problem here. The govern- quirement for those under publish news like that? “Joe ment had the burden of proving a compelling interest in protecting minors Who will be allowed to speak in from smut on the Internet, and it failed. this medium? Who will get full, Marginalized speakers will get blocked because unfiltered access to this medium? third parties or the speakers themselves will be required 18. We believe that this Doe won the class presi- to rate their sites. Studies policy can be more perni- dency last week”? now show what a terrible cious than the use of filters, That voluntary Internet 49 job labeling and filtering because it excludes many ratings lead to legislation is programs do by blocking minors from getting any in- no longer just a hypothesis. valuable information. And formation at all on the About four bills pending in how can a site such as the Internet. The Supreme Congress would regulate Critical Path AIDS Project Court has held in the past content, including one that rate its own speech and still that minors do have First would impose penalties for communicate to minors? It’s Amendment rights to obtain misrating sites and another either got to rate its speech some information over their that would penalize Internet harmful to minors or not to parents’ objection, includ- service providers that don’t rate at all. Blocking pro- ing information about con- provide filters. At least 13 grams almost always block traceptives. states have passed their own unrated speech. So, you get I will mention schools Internet legislation. Some blocked either way. and universities briefly. laws have been overturned, The third big access issue About a year ago, Princeton but I am sure we will see a concerns libraries. Only there University passed a policy new flurry of bills requiring can universal Internet access that its online computer libraries to install filters. be realized. One of the most network could not be used It’s crucial that we try to important debates is about “for political purposes.” The expand on the principles we filtering at public Internet ter- university based the policy won in ACLU v. Reno. The minals in libraries. on fears the IRS could principle that the Internet Another threat is the in- threaten its non-profit sta- is entitled to the highest creasingly popular tap-on- tus without such a policy. degree of First Amendment the-shoulder policy. Instead We did our own research, protection will mean noth- of installing filters, librar- convinced Princeton to ing if we don’t protect the ians have the right to stop rescind the policy, and its right of all disenfranchised you if they see you viewing officials agreed they would or marginalized speakers anything offensive. They even help us fight any fu- to access and speak in this

can kick you off the com- ture IRS counter-ruling for- medium.

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By Chris Finan

After listening to all the The Miller definition is they have on their shelves. learned discussion of these not so bad. It sets forth a At least two stores decided heavy issues, I am beginning three-part test that is fairly not to carry adult products to suspect that I was invited specific. It says the material, rather than face the grand for my entertainment value. taken as a whole, must ap- jury. In fact, there are many Because in my job I am usu- peal to prurient interest; it cases that we never hear ally up to my neck in sex must be patently offensive about because retailers de- and violence. But the fact according to community cide not to fight. The one that a video retailer in the values, and it must lack seri- retailer who fought had four region was recently put out ous literary, artistic, political adult book stores, and he of business by an obscenity or scientific value. It is by said, “I got an adult business prosecution shows how seri- no means an easy test to license. I was in business for ous the problem of video meet. The community-stan- 12 years selling exactly the censorship can be. dards provision was built same kind of product I am 50 The Media Coalition is into it to give some latitude selling now, and now you an association of trade so that New York didn’t indict me for obscenity? groups that produce, distrib- have to be regulated by the This is capricious.” The jury ute and retail books, maga- standards of Peoria and vice agreed and acquitted him. zines, recordings, videos and versa. It is definitely a better Juries usually acquit obscen- video games that get into definition than any that ity cases. Unfortunately, the trouble because of sexual or preceded it. two stores that caved and violent content. We are not Having said that, it is still decided not to carry adult pioneering technology. We so vague that our members product anymore went out are the old technology, and wonder when something of business. we operate under laws that they sell might be found ob- A couple of years ago in have been on the books for scene because, in the vast Cincinnati, the police began quite a while. The Media majority of cases, we have no to visit a gay bookstore Coalition formed, as did the list of obscene material. There called the Pink Pyramid. National Coalition Against is always the risk that some- They rented something, re- Censorship, in the after- thing new will be attacked, turned to the police station, math of the last landmark and a good example came viewed it, decided it wasn’t decision on obscenity, Miller this year from Newport hot enough, returned to the v. California in 1973. NCAC News, Va. A grand jury inves- bookstore for more material, was to represent not-for- tigated nine video stores— and a customer said, “You’ve profit entities and we were viewing a sample of their vid- got to try this because this to represent the trade eos—decided one store’s has got everything in it.” So, groups. Even though laws videos were obscene, and the police said, “Thanks very are on the books, and prece- brought the retailer to trial. much.” They decided it in- dents established, we have a What is unusual in this deed had everything in it real problem: The definition case is the fact that some- and arrested the seller for of obscenity can threaten body actually went to trial pandering obscenity, not for non-obscene material with because, usually, the threat selling obscenity. sexual content, whether it is of prosecution is enough to The video that they

art, books, novels, or videos. make people change what busted was Salo, 120 Days of

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Sodom, a famous art classic had rented it, including the to the defense of Barnes & that was an allegory about development director of the Noble and have issued a fascism. There was really ACLU, and asked for their statement about why they never a case for establishing copies. So, we now are try- will not make decisions for obscenity; under the third ing to get justice in Okla- their customers about what prong of the obscenity test, homa City with a lawsuit. can and cannot be sold. he was going to walk. So, It can happen to Block- The good news in Okla- the prosecutor charged him buster, it can happen to homa City is that while we with pandering, which Barnes & Noble. Barnes & are in court for perhaps an meant they didn’t have to Noble is one of the two big- interminable period of time establish that the material gest national book-store trying to get this thing was obscene. They only had chains, but that has not pro- sorted out, an anti-censor- to establish the material had tected it (as well as Borders ship citizens group has been held out to be obscene. Books) from a national cam- formed. They recognize So the seller had to plead paign to stop selling Jock that, in order to protect free guilty. This little bookstore Sturges’ books because they speech in Oklahoma City, a had a two-year fight, not are allegedly child pornogra- group must pressure the po- only with the police but phy. As you heard earlier, a lice in favor of First Amend- with the threat of bank- 51 ruptcy and avoided it by the narrowest of margins. The definition of obscenity This example again shows the problems that all retailers have. Blockbuster can threaten non-obscene Video has a policy: “We do not rent NC17. We do not material with sexual content. rent X. We certainly don’t rent XXX.” Did that protect Barnes & Noble outside of ment rights because there’s them from the Oklahoma Nashville was indicted not a well-established anti-por- City police coming in and for child pornography, not nography group pushing the seizing without warrant cop- for obscenity, but for violat- other way. ies of The Tin Drum? No. ing a harmful-to-minors dis- What I see at the end of Again, largely with the V- play law—yet another way the 20th Century, with 27 chip kind of logic, police people can get into trouble. years of experience after asked for them to be “vol- Barnes & Noble insists it Miller v. California, is that untarily” surrendered. They will defend the suit, that it there is no end in sight to had no court order. They has a First Amendment right this. We will fight it in the also asked for the video to sell this material. Borders courts, but we also will fight records, to which they had Books and the American it politically, and I am confi- no right, and went to the Booksellers Foundation for dent that we will continue

homes of the people who Free Expression have rallied to hold the line.

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John Kamp American Association of Adver- important, and staying away from govern- tising Agencies: Ann, are you at all squea- ment solutions is best. mish about the under-12 children? And who actually has the First Amendment right in Beeson I also want to echo what Joan the case of parents with children under 12? Bertin said earlier today—that we shouldn’t be afraid to teach our kids how to deal with Ann Beeson The question is, who gets to controversial content. decide what that under-12 child has a chance to read? It shouldn’t be the govern- Steve McFarland Center for Law and Reli- ment, not even a public librarian. The par- gious Freedom: Ann’s list of triumphs in- ents should decide. cluded a challenge to Virginia’s prohibition against its employees accessing porn on Kamp How do they decide? What support state computers. Maybe I didn’t understand can they get that would meet your concerns? the facts in that case correctly, but I don’t 52 understand why it wouldn’t be within the Beeson I’m not sure what context you are state’s prerogative to say that activity is off- referring to, but it is the parents’ duty to base for our employees on company time educate themselves about the medium and on state-financed computers. decide what level of access in the home they want to provide. Beeson The state of Virginia did not forbid its employees to access something called Harvey Zuckman Institute for Communica- pornography. They forbid access to “sexu- tions Law, Catholic University: Yes, but par- ally explicit” content. Virginia employees ents are not there 12 hours a day. There are include quite a number of professors of state an awful lot of latchkey kids in this country. universities and colleges, many of whom study issues concerning sexuality. They are Beeson Right, and there always have been. either psychologists, teachers in the medical That was never a justification for the gov- college or cultural theorists who discuss the ernment to play babysitter. They never have effects of pornography. They study sexuality in other contexts, and they shouldn’t on in many facets, as academics always have the Internet. and will. They use the Internet to communicate their research and views, to commu- Robert Corn-Revere I have always been un- nicate with other scholars in a conversa- comfortable about the number of latchkey tional way and to access the information. kids determining my family’s rights. I have four children under 12 who use the libraries Jayne McQuade Arlington County Public Li- of Loudoun County, Va., where the board of brary: I read something the other day that trustees recently decided to protect us from said, “Next to your home, the public library the Internet. We were doing a pretty good is now the second most common place for job as parents before the library decided people to access the Internet.” Many people whether or not the material my kids could don’t have home computers, so the library is access over the Internet was appropriate. an important place for access. Our collection-

The training we have done at home is more development policies, both for online access

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and for materials, say that parents are in “voluntary” solutions to the “problem” of charge of their children’s reading, that they indecency. may influence their children’s, and only their children’s, reading or viewing. You have Corn-Revere I haven’t heard that one, but to educate people. You don’t just reach the when the FCC considers broadcast or trans- Internet and a pornographic picture jumps fer applications, they often will address con- up to get you. Lots of stuff there is very, very tent issues. During significant network good. We offer selected sites. So, if you are mergers a few years back, following some interested in medicine you can go to that complaints about the amount of children’s section of our home page and link to various programming, one network agreed to trans- medical sites that may be of interest. mit more children’s programming in exchange for a waiver of certain FCC owner- JJ Blonien Enterprise Communications: Are ship policies. This was actually before the you aware of any dialogue between the gov- FCC’s new children’s programming rules. ernment and Microsoft to incorporate web fil- But the commission nevertheless found a tering into the Windows operating system in way to impose the children’s rules before exchange for some slack in the antitrust case? the fact. The other network refused, and its waiver request was rejected. So, it’s not un- Beeson We certainly are aware of many dis- heard of for the government to use pressure 53 cussions between high-level industry and on unrelated regulatory issues to get con-

the White House to come up with these tent concessions.

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The First Amendment in Evolution

Suppression Never Secures Safety ○○○○○○○○○○○○○○○ ne of the most persuasive voices on the Bill of SPEAKER Rights, Robert Peck put an exclamation point on Othe conference. The constitutional lawyer, scholar Robert S. Peck

and author’s eloquent wrap-up follows. Constitutional lawyer and author

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By Robert S. Peck 55 y topic, “The First breaks down, and it is from Amendment in applying these timeless prin- MEvolution,” ciples to new situations and should not be taken liter- new contexts that an evolu- ally. Since it was enshrined tion has occurred. in our Constitution in That a single amendment 1791, the words of the First joined religious and expres- Amendment have not sive freedoms, and concerns changed. It reads as it did us here today, should not more than two centuries seem unusual. The world the ago—despite a plethora of Framers knew as colonials attempts to change it by was one where church and constitutional amendment. state were joined. Dissent The surface simplicity of from orthodoxy, thus, was at its language, “Congress shall once heretical and seditious. make no law …,” is mislead- These First Amendment ing because the text masks freedoms remain joined in submerged complexities important ways. When re- that become apparent only duced to their essence, they from its application to real represent freedom of the situations. The poll results, mind, a freedom to think, no different than polls believe, proselytize, express, taken early in the century, represent, boycott and in show overwhelming support some ways act, in accor- for the First Amendment— dance with one’s beliefs and more than 90%—as an ab- ideas. Such freedom, of stract thought. Once you course, is entirely subversive. start talking about specific That is why so many decry it

applications, that consensus and why so many celebrate it.

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Still, it forces people with Freedom: Use it or lose it injury alone cannot justify nobler ideas to defend much Now let me utter a little bit suppression. … Men feared that they regard as repre- of heresy: This is not neces- witches and burned hensible. Both free-speech sarily a bad thing. Yes, the women. It is the function and religious-freedom con- stakes are high, and the po- of speech to free men from troversies often involve tential for losing so much, the bondage of irrational individuals or causes at even everything, is great. But fears.” the outer edges of society— if people don’t use these History also teaches that, things you might not toler- freedoms to question popu- no matter how legitimate ate in your home but believe lar wisdom and the beliefs the fear, suppression never that society must, no matter that society accepts, as well secures safety, never empow- how unsettling, offensive as to unsettle what seems se- ers anyone and never pre- or even just plain wrong- cure, then, like a muscle that vents ideas from gaining headed. This is to be ex- atrophies from disuse, the circulation. It is a lesson, pected. Widely accepted very need and value of free- unfortunately, that we have religious practices and ex- dom will come into ques- to relearn again and again. pressive forays are in no tion, dimming little by little The Salem witch trials and danger of being suppressed. as of its own accord. the banishment of Anne 56 The need to protect what we Overlapping regimes, Hutchinson from the Mas- detest is the reason freedom protective or repressive of sachusetts Bay Colony in 1637 for questioning bibli- cal primacy resound First Amendment freedoms, when through history, as do a virtually uninterrupted string of religious persecutions of reduced to their essence, represent those who were different in their communities. freedom of the mind. Such freedom, In the realm of free expression, we recall the pros- of course, is entirely subversive. ecution of John Peter Zenger, the battle over the of the mind exists and freedom, have pockmarked Alien and Sedition Acts, in remains under siege. our history. For the most the same decade that the The Freedom Forum poll part, fear has engendered First Amendment was rati- results, like many before it, the episodes of repression— fied. Abolitionists were again show us why that is fear of the unknown, fear of jailed just for advocating an true. Talk about an indi- dangers real and imagined, end to slavery. The justifica- vidual situation and some- fear that a comfortable and tion? People believed it was one says, “Gee, that one welcome way of life is talk that could lead to a makes me uncomfortable. threatened, fear that our bloody civil war. That My support is not as broad moral underpinnings can- prophecy came true, yet no as it was a moment ago.” not survive exposure to one today seriously would The vulnerability and fragil- some evil. Justice Brandeis say that those words should ity of First Amendment val- spoke powerfully to those not have been uttered, that ues is nothing new. This is fears when he wrote in his this portent was a sufficient how it has always been and concurrence in Whitney v. compelling interest to si-

how it always will be. California, “Fear of serious lence the abolitionists.

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The suppression of politi- practices get their first foot- be compelling. We will hear cal dissent, from anti-war ing … by silent approaches that we can always pull back protests throughout the cen- as slight deviations.” from the brink if the restric- tury to civil rights marches; The danger is that, tions go too far. Yet, perhaps the purging of those who through balancing, we will not. If the purposes of free may have sympathized with communism; issues of artistic and academic freedom, History teaches that, no matter and the public’s right to know—all these are chapters how legitimate the fear, suppression of our history. Yet in spite of episodic repression, I suggest that our religious and ex- never secures safety, never empowers pressive freedoms have emerged stronger, generally anyone and never prevents ideas more secure and of greater importance for having been from gaining circulation. through the crucibles of these experiences. no longer regard freedom as speech, for example, are the 57 This is not to say there is a good unto itself. Instead, furtherance of democratic no danger in the land. The we will hear that minority government, self-fulfillment very idea of that freedom as religions seek special and self-realization, trade in an American article of faith rights—exemptions—not the currency of ideas and is being questioned, perhaps enjoyed by all because of knowledge, the kind of cre- to a greater extent than ever some seemingly strange re- ativity that serves human before. Instead, we are being quirements for their follow- achievement, or perhaps asked to justify these free- ers. We will hear that these even to provide a safety doms: What purpose does it exemptions, as well as the valve, it is not difficult to serve? Is it really so impor- toleration of certain kinds demonstrate that certain tant compared to this or of speech, will disrupt and speech ill serves these goals, that socially desirable goal? lead to disrespect for the while compelling justifica- What harm is committed, if rules and authority that the tions exist for curtailing it. we simply give up some rest of us are governed by. seemingly marginal reli- And don’t we have a respon- Six challenges gious practices or speech re- sibility, we will hear, to pro- We can engage in trench garded as very low value, es- tect children from speech warfare necessary to preserve pecially when it is for a they are not mature enough freedom as we celebrate it good cause? to question or analyze, par- here, eking out legal victo- I suggest that if we submit ticularly when the speech in ries here and there, or we to this kind of balancing question gives us a substan- can see the attacks as an op- that so many advocate, free- tial amount of discomfort portunity to have a rebirth dom will ultimately lose. and doesn’t seem to advance of freedom. So, I want to There will be small abridge- any legitimate values? leave you with six challenges ments that no one will re- A debate framed this way as advocates of freedom: gard as a serious threat. Yet has a predetermined out- First, recapture the no- as Justice Bradley recognized come. Freedom advocates tion that religious freedom in an 1885 decision, “Illegiti- can warn of a slippery slope, is a value of the first rank

mate and unconstitutional but that argument will not and not, as the Supreme

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Court now holds, an ad- mate concerns. sorship into expanding the junct to other constitutional As a fourth item, fight opportunities for access to values. the labeling of speech, free-speech platforms and Second, examine anew whether by government or into resisting the concentra- the interplay and synergy industrial initiative. If rat- tion of state or other power between the expressive ings become the standard over speech. rights of religious speech expectation of the public Finally, work to develop a and the separationist and can be found in movies, fuller, more widespread cultural appreciation for freedom in the practical ways We are being asked to justify these free- that are needed but often unrecognized. Religious and doms: “What purpose does it serve? Is it expressive freedom has long been a boon to those who really so important compared to this or seek social change. The First Amendment, despite the sanctuary it gives to bigoted that socially desirable goal?” and other detestable forms 58 of expression, remains our strands of the Establishment television programs, rock most important civil rights Clause. Our analytical tools concerts and web sites, re- law, an idea that is often for understanding and con- gardless of whether state ac- overlooked. veying these issues remain tion is involved, there is no We have an important far too crude. reason to expect that they role as educators as well as As a third item, I urge you will not be applied as well to advocates. If freedom of the to resist a child-protection art, literature and even news. mind—freedom of con- exception to free speech. It Once that is achieved, pres- science, freedom of inquiry has no limiting principle. sure groups and politicians and freedom of ideas—is to Instead, I suggest that we will push for more pervasive survive and remain mean- put time and effort into pro- and pejorative ratings in all ingful, freedom must be a viding educational tools to these media. guiding principle—not just assist parents in addressing Fifth, put as much effort in law but in spirit.

their very real and legiti- as you put into fighting cen-

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Harvey L. Zuckman Institute for Commu- distorting. I think the burden is on those nications Law Studies, Catholic University: I who say the government has no role to sug- like what I’ve heard, but I thought some gest how children can be protected. speakers were a bit cavalier about protecting children under the age of, say, 12. Child psy- Peck I have debated this issue with psy- chiatrists and psychologists suggest that ex- chologists too many times. Many say the re- posure to adult material at an early and for- search which shows a correlation, but not

mative age can be quite devastating and causation, shows equally that violent im-

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ages have that same adverse effect. They say The government probably has no role in that Forrest Gump, for example, harms kids this area, and I like to think in terms of a under 12 and they are concerned about net- First Amendment “inoculation” theory. To work broadcasts. They say that passing an help young people develop healthy sexual at- anti-abortion protest with their very titudes and have solid, useful, enlightening graphic signs also troubles children and and safe information, exposure to some im- causes nightmares. The only way to keep agery that we might find offensive, immoral children pristine is to shield them from see- or distorting of their developing attitudes, ing anything. and the ability to help them process it and to Studies also show these issues can be explain it to them, might affect them like an dealt with—that we have an obligation to inoculation. It might help them develop bet- teach media literacy, to understand the im- ter than if we suppress what we consider for- ages we see. But it has long been First bidden and immoral—and by that process Amendment doctrine that you cannot ban just make it more attractive. speech simply because of its emotive effect, and I think that once we start walking Joan Bertin National Coalition Against Cen- down that road we basically have thrown sorship: I am not sure I can fully shed my the First Amendment out. civil-libertarian perspective, but I want to speak as the parent of two children, 12 and 59 Marjorie Heins ACLU In ACLU v. Reno , we 14, who surf the Net without much supervi- put in a lot of evidence of sexually explicit, sion or concern by me but with a certain indecent or arguably indecent Internet con- amount of discussion about what they find. I tent that not only would not harm minors have had to talk to my children about never but might be educational and enlightening. revealing on the Internet where they can be We thought it necessary to start educating reached, their telephone number or address, the courts about the broad scope of these in the same way I talked to them when they laws to protect minors and to start explor- were much younger about speaking with ing their underlying assumptions. There is strangers or people not well known to them. no scientific way to contend that excessive I have been interested to observe that my amounts of violent media exposure causes children and others of my acquaintance aggression or violence in young people. know instinctively when something is They simply get, we all simply get, too much “yucky” (that is their term of choice). information of too many kinds, and there It strikes me that we are engaging in a are too many variables to draw scientific vast overreaction to something that in the conclusions. scheme of things for children is a very small As far as I know, and I am happy to be threat. When you think of the things that corrected, there is very little statistical data threaten the well-being of children—pov- in this area. When people talk about de- erty, educational inadequacy, war, famine, structive and distorting effects of, say, por- pestilence, bad parenting, the list goes on nographic material—if we can find a way to and on—the threat posed by the possibility distinguish that from other sexually explicit of stumbling onto something on the speech—what do “destructive” and “distort- Internet seems small. It behooves us to think ing” mean? What we are really talking about children’s well-being in a more global about is morality, about trying to suppress and comprehensive way and not to focus on certain difficult-to-define categories of infor- this piece as if it is the entire universe. mation because we think they will give young people bad, immoral ideas. John Kamp American Association of Adver-

tising Agencies: I think we also have to focus

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on whose First Amendment it is. I happen to we rush to the ramparts and make or em- agree with most of what you say about the brace proposals that, in the name of protect- effects research, and the inoculation theory ing the children, robs them of their First is at least as valuable as any of the others. Amendment rights after they are 21. But we shouldn’t forget the fundamental We have seen it with radio. We saw it questions: How do we raise our children in with silent movies. It took 34 years for our society, and how does the First Amend- courts to recognize First Amendment protec- ment relate to that? This fundamental notion for movies. We saw it with television. tion of who we are as a people and how we We saw it with comic books, when two- become adults is in the context of the fam- thirds of the existing comic-book titles dis- ily unless we are ready to make some pretty appeared after the “voluntary” Comic Books serious changes. Code was enacted. I worry that the same I also wanted to raise another First sort of panic over justifiable, useful and nec- Amendment issue that wasn’t discussed to- essary concerns, as Harvey points out about day that I think deserves some examination our children, blinds us to the larger ramifi- — the issue of commercial speech, one of cations of what we might rush to embrace. those backwaters like pornography and other hated speech. This is a First Amendment August Steinhilber, National School Boards 60 question that goes to the very core of who we Association: I would like to point out that are as a people, and I find it appalling that there are areas of exceptions to the First the Food and Drug Administration and the Amendment, and I live within one of them. president of the United States just signed an- No question that ACLU v. Reno was rightly other bill reinforcing the FDA’s ability to cen- decided. However, when we get into the edu- sor that kind of truth. I may need chemo- cation of children, particularly in public therapy one day. I want my doctors to know schools, we have a closed forum. At best we everything about that chemical compound have a limited open forum, and so what is that is available to them. To systematically our responsibility? It is a responsibility to disallow the company that created the prod- provide education within the norms of soci- uct and knows the most about it to tell the ety. That means most school systems, for ex- truth about it seems outrageous and amazing ample, do not allow a teacher to show any at the end of the 20th century. R-rated movie without prior approval. Com- munity standards still have a major force Paul McMasters, The Freedom Forum: Com- and a major place in the United States, and mercial speech alone could give us a couple that may be an exception to the First of days of conversations. I share John’s con- Amendment, but I think we have to recog- cern, not just with the FDA but the FTC and nize it. the FCC—three federal agencies that are becoming remarkably aggressive about ex- McMasters: Thank you, Gus. On that note, panding their jurisdiction over speech. The we have to conclude. I have been inspired by Media Institute’s most recent newsletter the idea that we have spent a whole day and contains a rather chilling series of stories not even begun to scratch the surface on the about the FDA alone and how the agency is issues raised and principles embraced by the trying to assert jurisdiction over, limit and First Amendment to the United States Con- regulate speech. stitution. This amendment started out as It has always amazed me how technology 114 words, was sent to a joint committee or any new medium is quickly assailed as an and wound up being just 45 words, yet they end to society as we know it, a threat to our laid down five of the most fundamental

children and our children’s children. Often freedoms known to man. We come at this is-

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sue from different perspectives, but I think ticipation. You have enthusiastically ex- we agree that the First Amendment is a re- panded the reach of what I consider my markable compact between a government mandate as the First Amendment ombuds- and its people, unique in all the world to- man at the Freedom Forum, which is, “The day, and, I would venture to say, unique in First Amendment: learn it, live it and leave all of history, too. it better than you found it.” Finally, just let me say how deeply grate- ful I am for your attendance and your par-

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Participants

Amy Adler Robert Corn-Revere Michael Godwin New York University Hogan and Hartson Electronic Frontier Foundation

Michael Aisenberg Judy Coughlin Kevin Goldberg Digital Equipment Mainstream Loudoun Cohn and Marks

Jonathan Alger Rebecca Daugherty Mark Goodman American Association Reporters Committee for Student Press Law Center of University Professors Freedom of the Press Jim Green Mary Alice Baish Ken Dautrich Federal Communications American Association University of Connecticut Commission 63 of Law Libraries Lindsay Decker Steven Green Bob Becker Thomas Jefferson High School Americans United for Separation Washington, D.C., attorney for Science and Technology of Church and State

Benjamin Bedrick Donna Demac David Greene Reporters Committee Georgetown University National Campaign for for Freedom of the Press Freedom of Expression Natalie Doyle-Hennin Ann Beeson Mount Vernon College Leslie Harris American Civil Liberties Union Leslie Harris & Associates Edward Felsenthal Abby Beifeld Wall Street Journal Charles Haynes Gaithersburg, Maryland The Freedom Forum Amy Fickling First Amendment Center Joan Bertin Telecommunications National Coalition Reports International Inc. Marjorie Heins Against Censorship American Civil Liberties Union Anne A. Fickling Solange Bitol Center for Civic Education Mike Hiestand American Civil Liberties Union Student Press Law Center Chris Finan JJ Blonien The Media Coalition Evelyn Hsu Enterprise Communications, Inc. American Press Institute Elizabeth Fluegel Fatima Brown Lutheran Church Missouri Synod Ray Jenkins Arlington, Virginia The (Baltimore) Sun Dan Froomkin Lou Brune Washingtonpost.com Charles Johnson The American Legion The American Legion Robert Gellman Ronald K.L. Collins Privacy and information John Kamp Foodspeak Coalition policy consultant American Association

for Free Speech of Advertising Agencies

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Rick Kaplar Jayne McQuade Nan Robertson The Media Institute Arlington County Public Library University of Maryland

Omri Kaufman David Mendoza Steve Robertson American University National Campaign for The American Legion Freedom of Expression James Keat Robert M. Ruggles The (Baltimore) Sun (retired) Elliot Mincberg Florida A&M University People For the American Way Carol Kellermann Buck Ryan Podesta Associates Mark Molli University of Kentucky Center for Civic Education Judith Krug Willie Schatz American Library Association Elizabeth Mottur The Schatz Group Motion Picture Association Dan Kubiske of America Richard Schmidt Society of Professional Journalists Cohn and Marks Tack Nail Odaale Lamptey Warren Publishing, Inc. Norma Schulman Thomas Jefferson High School American Association for Science and Technology Jan Neuharth of University Professors Paper Chase Farms 64 Frosty M. Landon Lauren Schumer Virginia Coalition for Robert O’Neil Religious Action Center Open Government Thomas Jefferson Center for of Reform Judaism the Protection of Free Expression Molly Leahy Tom Simonton Newspaper Association Thomas O’Toole Society of Professional Journalists of America BNA’s Electronic Information Policy & Law Report Solveig Singleton Barbara Lerner Cato Institute Reporters Committee for Charles Overby Freedom of the Press The Freedom Forum David Sobel Electronic Privacy Charles Levendosky Ken Paulson Information Center (Casper, Wyo.) Star-Tribune The Freedom Forum First Amendment Center Ethel Sorokin Joan London Center for University of Maryland Robert Peck First Amendment Rights Association of Trial Lawyers Jennifer Markiewicz of America August W. Steinhilber Catholic University National School Boards Association Gene Policinski Declan McCullagh The Freedom Forum Jenni Straus Time Magazine/The Netly News Americans United for Separation Adam Powell of Church and State Steve McFarland The Freedom Forum Christian Legal Society Joan Kennedy Taylor Peter Prichard Feminists for Free Expression Larry McGill The Freedom Forum The Freedom Forum Bernard Timberg Media Studies Center Frank Quine Radford University University of Maryland Jeri McGiverin Arthur Tsuchiya Mainstream Loudoun Robert D. Richards National Endowment for the Arts Pennsylvania State University Paul McMasters Christina Twyman The Freedom Forum Carol Ann Riordan Thomas Jefferson High School

American Press Institute for Science and Technology

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Keen Umbehr Brian Weaver Robert Wyatt Alma, Kansas National Newspaper Association Middle Tennessee State University Sanford Ungar Adam Wachter American University National Newspaper Association Daniel Yi Thomas Jefferson High School Robert Van Kirk Brian Whitehead for Science and Technology Williams & Connolly Reporters Committee for Freedom of the Press Harvey Zuckman Patricia Wand Catholic University American University Elaine Williamson Mainstream Loudoun

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○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Chapter 8 Participants 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 Cen- ter in New York City, the First Amendment Center at Van- derbilt University in Nashville, Tenn., and the Newseum at The Freedom Forum World Center headquarters in Arling- ton, Va. It also has operating offices in San Francisco, Cocoa Beach, Fla., London, Hong Kong, Buenos Aires and Johannesburg.

World Center Board of Trustees

BETTE BAO LORD BRIAN MULRONEY JOHN C. QUINN CARL T. ROWAN JOSEFINA A. SALAS-PORRAS JOHN SEIGENTHALER ALAN B. SHEPARD JR.