Saving Our Children from the First Amendment

1 The Most Important Freedom

The Most Important Freedom The First Amendment was originally the third of the amendments sent to the states for ratification, but it is fitting that it enjoys the place and title it does. The first to be ratified, it contains the most important of our freedoms—the freedoms of speech and of the press. A people cannot be free and self-governing unless they are free to discuss the issues facing their society and to debate the direction society should follow or to protest actions the government may have taken. The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” but the amendment has never been understood as providing the absolute protection the language seems to convey. The Supreme Court has said time and again that certain classes of speech, such as obscenity, fighting words and libel are outside the scope of the amendment’s protections.1 Actually, the First Amendment may have been intended to do nothing more than remove prior restraints and licensing requirements present in English law in the pre-Revolutionary era. Leonard Levy, a noted historian of the issues surrounding the American Revolution and the Constitution, takes this position.2 He notes that John Milton, an early champion of free expression, attacked licensing but would have allowed criminal sanctions to punish the abuse of that freedom and that John Locke took a similar position.3 Levy also quotes Blackstone’s statement of the law in the Revolutionary era: The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.4 1 19 Whatever may have been the intent behind the First Amendment, the more restrictive view certainly has not survived. The evolved First Amendment includes within the protections of free expression the right to criticize the government without facing the possibility of a seditious libel charge. The free expression of views regarding governmental action is now recognized as essential to self-government and to a free society. Without such freedom, without the right freely to express one’s political opinions, government cannot take account of the various opinions of the populace, and government cannot be said to be by the people. Furthermore, the scope of First Amendment protection has broadened beyond political debate. A wide variety of entertainment, including pornographic films, video games and rap music, have come under its umbrella . A number of theories have also developed to explain the protection of other than political speech and press. Some build on ideas derived from John Stuart Mill, the marketplace of ideas and its role in the search for truth in all areas of inquiry and theories of autonomy in personal development . Others are based on free expression as a method of social control or as a way of building tolerance in society. Nonetheless, the core of the First Amendment is the protection of political speech, and that value will be considered first. A. Political Speech Alexander Meiklejohn, in his book Free Speech and Its Relation to SelfGovernment , argues that the basis for the First Amendment is the same as the basis for the Constitution as a whole. Both must be understood as being built on, and are justified by, the idea that the people are both governors and the governed. For Meiklejohn, “What is essential [to the freedom of speech] is not that everyone will speak, but that everything worth saying shall be said.”5 Equality of voice across divergent opinions is necessary to self-government. If a people are to govern themselves, they must have all the information necessary to that task. If some opinions are barred as unwise or incorrect, the decisions of the community will not be well considered and the policies adopted well balanced. As Meiklejohn put it, It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. The princi20 | The Most Important Freedom ple of the freedom of speech springs from the necessities of the...