THE LIBERTARIAN ENTERPRISE
Number 352, January 29, 2006
"Another Major Dose of Smoke and Mirrors"
First Amendment First No More
Special to TLE
The Bill of Rights was appended to the Constitution almost from the beginning to protect what our Founding Fathers termed to be "unalienable rights." The intent was to preserve those rights for the individual no matter what the government or the majority of its citizens might think. In references to the "tyranny of the majority," the first ten amendments made a good deal of sense.
There are some among the Bill of Rights that enjoy less popularity than others. The Second Amendment, for example, is under consistent attack. So are the Fourth and Fifth Amendments castigated when bad guys go free because the good guys violated one or both, or when we determine that expedience in catching the bad guys outweighs civil liberties. But the First Amendment has almost always had broad support. Apparently, "had" is the operative term here.
The First Amendment says quite clearly that the government shall not establish a religion or prohibit the free exercise thereof. The so-called "establishment clause" has often been inferred to include actual or apparent endorsement of any particular religion by government entities, something I personally believe to be quite proper. It's the establishment clause that keeps creationism from being taught in public school science classes (fundamentalists have since renamed it "intelligent design" and are trying again with limited success) and which put a stop to coercive prayers with "captive" audiences.
In recent years, though, lawsuits demanding religion be a part and parcel of government entities abound. Ten Commandments displays are a common rallying point for those on both sides of the issue. The Chief Justice of the State of Alabama Supreme Court brought the issue to a head when, under cover of darkness, he had installed in the rotunda of a state building a 5,000 pound monument etched with the Ten Commandments. Judge Roy Moore eventually lost his job over the issue, though his removal from office wasn't over religion but rather his refusal to obey a federal court order (a legal analysis from FindLaw.com goes into more detail as to just how and why Moore's actions and attitudes were inappropriate and unconstitutional).
At the same time, and with some success, various public entities such as schools and libraries have excused discrimination against religious groups by claiming fears of violating the establishment clause. They've refused to rent rooms or facilities available to all other groups to religious groups; schools have declined to permit Bible clubs even as other extracurricular clubs of all kinds are encouraged. In recent months, a Wisconsin college was sued after its policy forbade Residential Assistants from teaching Bible studies (the policy is currently in limbo as the entire university system reviews the matter); a student in New York had to sue simply to wear a t-shirt with a message that was construed as being religious in nature (it was, but other students wore "message" shirts, too, and were allowed to do so). Meanwhile, even as a school did the right and constitutional thing, some in New York are suing to prevent the school from renting facilities that are available to all to a church.
In short, over the course of recent history, it's becoming abundantly clear that most Americans don't want freedom of religion. They want freedomand favoritismof their religion. Everybody else's is second class and must thus be subservient in status and recognition. The First Amendment is becoming damned inconvenient for them. Meanwhile, those who have little or no religion are also finding the Bill of Rights problematic when they can't simply erase all mention of all religion in every public venue.
The First Amendment prohibits any laws that infringe on the freedom of speech, and yet we see more and more infringements on an almost daily basis. College campuses, which used to be famous for public debate, have lately begun to relegate free speech to small parcels of property euphemistically called "free speech zones." Political correctness is rampant to the point of prohibiting certain words all together. Sure, it's offensive, but how ridiculous is it that some words can't even be spoken without fear of repercussion and we relegate ourselves to the mentality of a five year-old when we whisper of "the 'n' word?" That particular word is, in fact, apparently so awful, that even words that sound a little like it are determined to be offensive no matter their meaning, and those who spoke must suffer accordingly!
The First Amendment was written in large part to protect the right of the citizenry to criticize government. Political speech was much frowned upon during the reign of King George III, and is apparently as much frowned upon today under the reign of King George W. At the 2004 Democratic National Convention in Boston, those who wished to make their point had to do so from a small caged area. Shortly thereafter, the Republican National Convention in New York City resulted in about 1800 arrests, many of which were mistaken and virtually all of which resulted in no charges.
Speaking out against the War on Terror in any format has sometimes resulted in serious trouble for the speaker, and with the NSA's domestic electronic surveillance program and the authorities' recently acknowledged opening of personal mail, rest assured that, if you criticize, you will be heard. But the War on Terror isn't the only threat to free speech. Earlier this month, President Bush signed into law a measure that makes it illegal to "annoy" anybody via the Internet unless you use your real name when you annoy them.
The First Amendment's guarantee of freedom of the press would probably be in far more danger than it is if the media was actually doing its job as a government watchdog. Unfortunately, media bias as well as the overwhelming push for "scoops" has ensured that cronyism and sensationalism are far more often the watchwords for the press than are responsibility or investigation. To further discourage such things, The New York Times does face possible criminal charges for revealing the existence of the domestic surveillance program that's been so much in the news in recent weeks.
The government, of course, isn't alone in its efforts to quash free speech. Special interest groups would also be perfectly happy to do so. There is, for instance, an ongoing campaign to demand that NBC affiliates refuse to air a new drama entitled "The Book of Daniel." Some Christians are unhappy with what they believe to be a negative or a blasphemous depiction of their religion on the show, and they're demanding en masse that stations simply don't show the program.
Why not refuse to watch the show themselves if they find it objectionable, but let the rest of us make up our own minds? Freedom would dictate that that's what they should do, but this isn't about freedom but rather their own sensibilities whether the rest of us share them or not. (As an aside, I saw the premiere episode. While it's not the greatest show ever made, it does show Christians as having problems just like everybody else, and it represents the title character as leaning strongly on his personal relationship with Jesus. Say whatever else you will, but I thought that's what Christianity was supposed to be all about.)
Somehow or another, it's rapidly becoming impossible to say anything without offending someone, and many seem to consider causing offense to be at least as reprehensible as an actual crime. Government, of course, has its fingers in that pie with its various hate crime and hate speech laws. But government has also expanded the infringements to include a variety of things of which it doesn't approve, or which might somehow be tantamount to helping the cause of terrorism (at this point, it appears that anybody who doesn't jump up and down and cheer for the PATRIOT Act is "helping" the cause of terrorism by federal definition).
Free speech isn't really very free in America anymore. In fact, I'm not sure it can even be bought for any price short of one most of us aren't inclined to pay. But one of the best ways to see that a trend is reversed is to pretend it doesn't exist and to play no part in it yourself. So speak up when the spirit moves you. Apologize when you're wrong, and don't deliberately hurt other people, of course. But the minute you're afraid to speak what's on your mind is the very same moment we lose the First Amendment all together. Is that something you're prepared to think about? God knows we're not supposed to be talking about it!