SINCE 1759

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Deconstructing the Bill of Rights
First Amendment Memories

Some of the following is excerpted from Friday’s lecture to the Volusia-Flagler chapter of the ACLU. Most of it is already on the cutting-room floor: My time there is limited, and the talk covers all ten

The First Amendment is the most cherished, most fascinating, most challenging and probably most challenged and known of them all for the obvious reason that we all talk and we all have beliefs, so speech and religion are like the oxygen and nitrogen around us: we couldn’t function without either. We could also say that speech is the oxygen and religion is the carbon dioxide around us. It wouldn’t be a bad observation—keeping in mind that nature is still a massive producer of carbon dioxide. Either way, it’s not for nothing that the Founders gave the First Amendment top billing in the Bill of Rights.

The First Amendment is not in danger in obvious ways. No one is going to come after you for writing vicious things about the president — actually, that’s not a very good example anymore considering that you’re likelier to be criticized for not writing vicious things about this president anymore. There isn’t a sexual act or perversion or fetish of any kind you can’t get your hands on, in person or in glossy or rubbery or DVD or internet form. And even if you’re Muslim and you’re at a rest stop on Interstate 24 in Kentucky, facing Mecca and praying on your prayer rug in a corner of the welcome center with Rednecks from Tennessee and Arkansas and Mississippi passing through, no one is going to bother you. Now facing Mecca from I-24 in Kentucky also means facing Nashville, so may be all those Rednecks think it’s pretty cool that Muslims would pray to Graceland and Elvis, as would I, but you get my point: No one is forbidding anyone from practicing whatever religion they please, no one is forbidding anyone from saying whatever they please.

Yes, there’s silly scrotum-scented book banning in some of our libraries and school districts. But it’s almost a guarantee now that a book-banning is the best way to get that book read more, not less, so I actually welcome book bannings as a good thing for literature. Yes, there’s the seasonal battle over nativity scenes planting Jesuses where they shouldn’t or dumping Ten Commandment monstrosities in front of government buildings just to make a point. But that’s just it: You look at those things and you can’t help think of the controversies they proudly reference in order to be where they are. So those displays have lost their effectiveness, as messages in and of themselves or as symbols of religious preeminence precisely because their existence is owed to the idea of making a point — not to the idea that the Commandments or Jesus convey. In-your-face Jesus or the Commandments have thus become stepping stones to ideological stubbornness.

And yes, you can argue, as I never miss a chance to, that schools and libraries that filter their internet connections are involved in systematic censorship, that libraries assume their primary mission is to prevent anyone from being offended at a glance or that schools assume that their primary mission is to keep hormonal students from catching an occasional breast or a penis, but the filters, like most blanket prohibitions, can also fuel curiosity and rule-breaking, and given the enormous availability of unfiltered internet connections, filters just channel more curious eyeballs elsewhere. One thing I’ve discovered about the Internet is that if there’s something you want to see or read, whether it’s a beheading in Iraq or those famous shots of Britney Spears without panties, it’s never a matter of whether you can or not. It’s a matter of whether you’re willing to put in the necessary number of clicks. It usually takes no more than five.

No, the ways the First Amendment is being offended are more insidious, and more effective. Remember, the First Amendment’s free-speech clause takes its origins from the Founders’ desire to see rich, unfettered, public, civic discourse. I’m perfectly willing to concede that they did not have Penthouse in mind when they wrote it. Rather, they had the sort of free-wheeling debate that raged over the Constitution from September 1787 to July 1788 as the states were battling it out: should they ratify or shouldn’t they. In 1993 the Library of America collected the “Debates on the Constitution” in two magnificent volumes. It’s two thousand pages of material collected from pamphlets, newspapers and letters widely circulated at the time, by some of the most famous names in American history and many not famous at all — those columnists of the time who, as always, vanish from circulation the moment their last column has been written. Those debates are the greatest example of the First Amendment in action, even though it hadn’t yet been adopted. The debates ensured not just adoption of the Constitution, but set the tone for how an endless pluralism of ideas and intellectual discourse not only could survive in the Republic, but should be fostered, if it’s a vibrant republic we intend to keep. So how can we have such a pluralism of ideas when the president and what remains in so many ways a rubber-stamp Congress set the tone of public discourse within the extremely narrow bounds of what’s patriotically acceptable, when the mass media are so-called because there’s hardly a newspaper, a television or a radio station left that doesn’t belong to one of eight or nine media conglomerates who set the tone of discourse in their broadsheets and broadcasts almost as narrowly as legislators set theirs in Washington, and when even the president can operate in a bubble, politically and physically, thanks to the eradication of public protest as the First Amendment intended it? I’m referring to the “free speech zones” that have become routine and unchallenged anywhere the president goes, and whenever big events like the Republican or Democratic national conventions meet or when the G-8 Summit of industrialized nations happens to be hosted by the United States.

Think about that for a moment. Free speech zones. There are places where you may speak your mind, they’ll even be delineated for you, in some cases there’ll even be chicken wire planted around them, for your protection of course. And there are places, where politicians gather, where you may not speak your opinion. There are shirts you may wear during a public appearance by the president, as long as the shirts display messages supportive of the presidents. But should you be wearing a shirt that shows your displeasure with the president, and believe me, they don’t even have to say fuck you Mr. President, they can merely be displaying blunt displeasure with the war in Iraq or displeasure with Bush in general, then you will be removed, and probably slapped with a resisting arrest charge the moment you invoke your first Amendment rights. In America, ladies and gentlemen. In America. The First Amendment may be interpreted many different ways. But one clause that doesn’t leave too much room for interpretation is the free- and peaceful-assembly clause.

And one purpose of the amendment that’s hard to dispute is its role as a protector of public discourse purposefully directed at authority, and in order to influence, even disturb and shock authority if need be, the way Lyndon Johnson was so effectively shocked and disturbed by Vietnam War protesters outside the White House, the way George Bush has managed almost never to be disturbed by all sorts of protesters, who are kept well away from the White House and up to a mile away from any of his speaking engagements. We can also get into the subtler ways government overregulates speech and shuts off information, like the heavy-handed ways of the Federal Communications Commission going on a crusade in the name of decency, the way federal agencies have been advised to drag their feet on freedom of information requests or make them so expensive and arduous as to discourage the public from even trying, when you know very well that so much of the government information in demand, like your local clerk of court’s information, can be put on the web cheaply and quickly. Instead, the government under this administration has stepped up the classifying of documents at an unheard of pace, and with absurd results, too: a few months ago it re-classified old data about American and Soviet nuclear arsenals that had been available for years. As always, in the name of that eternal canard, national security.

Let’s not just blame government entirely: what government does to the First Amendment, we still can undo by force of Congressional will. We just lack the will. But to me the much greater danger to the idea of free speech is where the First Amendment applies with much less force or not at all: in public and private schools, in the workplace, in malls, in gated communities and homeowner associations, which have so much to compare them to little tyrannies that would have made Mussolini a happy camper there, even on the internet and through blogs, where companies and schools are now exerting disproportionate and disturbing power to regulate what their employees or their students may or may not say on their web pages.

What all this adds up to is a reversal of what the spirit of the First Amendment conveys. It’s there to protect individual expression. Protection would not be necessary if the expression is assumed always to be benign. But the Founders knew that by nature, individual voices will, on occasion, offend, revolt, upset the community around them. Protection exists for them. Otherwise, protection would be useless. Yet it’s those very voices that are being suppressed in the name of community standards, corporate interest, decorum, or, in school, what they call the “educational mission.” But where do we spend most of our time in life, outside of the home? In those private-public places, in school, at work, in shopping zones. In all those places, what we say and how we say it is severely proscribed, and now that employers and school districts are extending their disciplinarian conditions to how we behave in public or on the Internet, even what we do at home or on our own time is no longer our own. This is a society of commands and controls, not a society of freedoms and individuals.

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