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Strong First Amendment Tradition Relies Upon Those Willing To Fight
Published on Monday, February 28, 2000 in the Casper (WY) Star-Tribune
Strong First Amendment Tradition Relies Upon Those Willing To Fight
by Charles Levendosky

Our nation has the noblest and strongest free speech tradition in the world. This tradition has been the very foundation of our liberty. It would be good to remember that fact -- as communities around America wrestle with what should or should not be available on the Internet, whether concerts by rock groups should be banned or not, why speech that demeans others should or should not be outlawed.

The First Amendment is a fabric that weaves through all our liberties. The warp and weft of this fabric protects our right and ability to govern ourselves. And those who would pull out a thread here or cut one out there do not realize they risk unraveling the entire cloth of our freedoms.

Open government and open records are necessary corollaries of a strong First Amendment tradition. The right to know is imbedded in freedom of speech. How does a nation govern itself if its people are deprived of the right to know? What good is the right to criticize the government if such speech can only be delivered in prison while in solitary confinement?

Our First Amendment tradition protects even speech that is deliberately provocative or offensive. For good reason. In the U.S. Supreme Court decision, Terminiello v. Chicago (1949), Justice William O. Douglas noted that civil rights leaders often used speech that "induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

When Martin Luther King Jr., spoke in Montgomery, Ala., in support of the boycott against segregated buses that had been begun by Rosa Parks, he said: "There comes a time that people get tired. We are here this evening to say to those who have mistreated us so long that we are tired -- tired of being segregated and humiliated; tired of being kicked about by the brutal feet of oppression. ... One of the great glories of democracy is the right to protest for right ..." King's speech was protected by the fabric of the First Amendment. And later, the amendment would also protect civil rights sit-ins and other peaceful but provocative marches.

And so, too, union protests are protected by the First Amendment. And the peaceful demonstrations of any downtrodden group are protected by that great liberty. Eventually, the First Amendment overturned loyalty oaths and threats to employment if one belonged to a disfavored group. And it protected the Vietnam Nam veterans who returned home and burned the American flag to protest a dismal, unpopular war. Our nation protects dissent because it understands that from dissident voices may come a public dialogue that changes the minds of our leaders and the path our country takes.

Slip a thread from the fabric, and it may no longer be true.

Few professional journalists or newspapers supported Hazelwood East High School student Kathy Kuhlmeier when she challenged the principal's right to censor two articles in the school newspaper she edited. In January 1988, the U.S. Supreme Court issued a broad ruling against Kuhlmeier and her fellow-students and now school administrators have nearly carte blanche authority to censor student speech. The ruling has even impacted community college and university student publications. Many young journalists who seek work at newspapers no longer understand the importance of a free press. They haven't experienced it during their school or college years. How willingly or effectively will they defend their First Amendment rights or ours?

This nation's free speech tradition did not arise accidentally. It took civil liberties groups dedicated to protecting the speech and press liberties spelled out in the First Amendment: "Congress shall make no law ... abridging the freedom of speech, or of the press... ." As Samuel Walker has demonstrated so clearly in his 1994 book, "Hate Speech: The History of an American Controversy," the American Civil LIberties Union must be given credit for its key role in preserving the core meaning of freedom of speech. The ACLU was founded in 1920 specifically to defend this right -- not only for Communists and Socialists and liberals, but for everyone, including the Ku Klux Klan.

Without the ACLU's perseverance earlier in this century, it is likely we would not have such a magnificent free speech tradition. In his book, Walker concludes that "the protection of offensive speech has been critical to the pursuit of racial equality, along with defense of the rights of other powerless groups -- the Jehovah's Witnesses, Vietnam War protestors, and others."

The ACLU was an advocate for unpopular minorities and those without political clout. In recent years, other groups have added their advocacy for freedom of speech, including the American Library Association and People for the American Way and a number of coalitions to ensure that speech on the Internet remains free.

Pull a thread from the fabric, and some other powerless groups will suffer.

During the late 1930s and '40s, the Jehovah's Witnesses, a small persecuted religious group, attacked the Roman Catholic Church with a viciousness that brought states to pass laws against their inflammatory propaganda. The ACLU defended the free speech rights of the Witnesses, and eventually all those state "hate speech" laws fell aside.

Constitutional scholar Henry J. Abraham points out that of the 50-plus cases involving religious freedom and free speech issues the Witnesses took to the courts they lost very few. In winning, they won for all of us.

On June 14, 1943, when America was still involved in World War II, the U.S. Supreme Court issued one of the greatest rulings in favor of individual conscience (West Virginia State Board of Education v. Barnette). Three years after it had decided that Jehovah's Witnesses could be forced to salute the flag and say the pledge of allegiance, the high court dramatically changed its position. Witnesses believe that the flag is a "graven image" and their religion forbids them to salute it. The Barnette ruling upheld their right of conscience and struck down West Virginia's flag salute laws.

In Barnette, Justice Robert Jackson wrote for a majority of the court: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

He concludes: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." To underscore its decision, the high court announced it on Flag Day.

The ruling sweeps further than the flag salute. It resonates deeply with all those who cherish liberty. We have Jehovah's Witnesses to thank for this victory -- and many other persecuted or despised minorities who have secured free speech liberties for us by fighting for them. That's the real lesson.

(Charles Levendosky is the editorial page editor of the Casper (Wyo.) Star-Tribune. His commentary has won numerous national First Amendment awards.)


Copyright Casper Star-Tribune

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