Inside the First Amendment
By Gene Policinski
First Amendment Center
New-year resolutions often have the real-world substance and life expectancy of steam vapor. We resolve to lose weight, communicate better, stay in closer touch with family - often to no avail.
But then there are resolutions that stick.
Think of the five freedoms of the First Amendment as a resolution by the nation's Founders, setting out the goals of religious freedom, freedoms of speech and press, and rights to assemble freely and petition the government for change. Goals for a new nation and at the same time the workings of a free society.
Of course, the Founders set out their promises of freedom of expression and faith not just for a new year but for a new era, with no expiration date. Their resolution was binding on succeeding generations.
So how are we doing?
In the wake of what critics have called "journalistic bedlam" after the December school shootings in Newtown, Conn., came calls for "common-sense media control" and even outright government censorship of breaking-news reports.
When the deliberately shocking Westboro Baptist Church advertised an intention to parade its anti-homosexuality views during some of the Newtown funerals, public pushback included attacks on the group's and members' websites by hackers. A petition started on a White House website to have the protesters declared a "hate group" - presumably to remove legal protections afforded Westboro and its ilk by a 2011 U.S. Supreme Court decision, Snyder v. Phelps.
And after a New York state newspaper published the names and addresses of gun-permit holders in several counties, not only were angry comments aimed at the editors, but a Maryland legislator also proposed banning publication of the "private" information of who holds gun permits in his state.
Until news media and public-accountability groups mounted a successful challenge, Congress was considering legislation to greatly restrict which bureaucrats could speak with the public or journalists about work even remotely connected to national security. The original proposal probably would have eliminated a long-standing practice of background briefings on terrorism and other security matters.
To be sure, our national debates on First Amendment issues have sometimes produced less-than-ideal situations: the 1798 Sedition Act, the 1950s "blacklists" of authors and playwrights, Vietnam-era and post-9/11 surveillance or suppression of protesters or religious faiths deemed extreme or weird. But the good news is that we've generally come to our First Amendment senses after flirting with such limits, controls and pogroms.
Congress as editor? The specter of government "media control" raises questions not just of constitutionality but also of practicality. Who makes the final decision on what the "one, true story" is? How would government stop publication of "wrong" facts immediately after an event without a massive bureaucracy that would, at the very least, be far too slow to deal with any kind of breaking news? Moreover, do we want government to produce a single set of approved facts?
As to Westboro's antics: Far better for the public to hear and see the hate-filled messages directly. Yes, without its sidewalk performances, few would know of this family-run group from Topeka, Kan. But our Founders believed the cure for speech you don't like is more speech, not less - and in each generation, the marketplace of ideas will have a few stalls operated by the wildly unpopular.
Finally, trying to close off public and press access to government officials to stem leaks hasn't worked in the past - and with the Internet, there's even less reason to believe it would work today. Government secrecy is needed in some matters, and laws on treason and espionage already are on the books. Case in point: Army Pfc. Bradley Manning, facing trial in March for leaking huge amounts of secret documents to the global web organization WikiLeaks.
But whistleblowers who disclose waste, fraud and abuse are positive factors in self-governance, not turncoats. Let's not condemn a mid-level official who exposes internal policy disagreements on water-quality standards in the same voice as a spy whose work endangers national security.
So let's keep faith with the Founders and resolve to step into the New Year with a goal of preserving, using and celebrating our core freedoms.
Gene Policinski is senior vice president and executive director of the First Amendment Center in Nashville, Tenn. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@facorg.