The battered
First Amendment
Commentary by PAT MURPHY
If the First Amendment were a boxer, it would be punch drunk and puffy with
scars from more than 200 years of use, abuse, misuse, misunderstanding and
controversy.
Yet the First Amendment’s 45 words remain strong and still the basic charter
of American freedoms of speech, press, religion, assembly, and petitioning the
government.
Now it’s in the news more than ever, engulfed in issues and disputes about
its fairness, equal application and abuse.
Watch for it to be invoked in the brewing White House dispute over the name
of a CIA operative leaked to conservative columnist Robert Novak.
Two White House officials are said to have told six Washington journalists
the name of former U.S. ambassador Joseph C. Wilson’s wife as a CIA "operative."
Novak, the only one to publish her name, received the information, according to
Ambassador Wilson, as reprisal for his debunking the later-discredited White
House claim that Iraq was trying to buy uranium ore in Niger.
Leakers could face 10 years in prison. But what about Novak, who literally
acted as a "fence" in peddling illegal information? Is he a criminal accessory?
Novak will claim First Amendment privileges and probably not be prosecuted.
He undoubtedly won’t reveal sources who broke intelligence laws, despite his
avowed tough-on-crime politics.
Elsewhere, telephone solicitors are pleading First Amendment protections to
justify annoying dinner hour telephone solicitations.
Maybe. However, co-opting telephones paid for by households to harass people
with unsolicited messages is not within the First’s meaning as I understand it.
Critics target the press about First Amendment abuses, citing smut in
tabloids and highbrow newspapers for not publishing certain material. But that’s
the First Amendment: the press is free to print or not print what it wishes,
fairly or not.
But, even speech has limits. Screaming "Fire!" in a crowded theater if
there’s no fire is illegal. Slander and libel are not protected. But here again
there are exceptions: libelous statements often are repeated in a privileged
surrounding such as a courtroom or on the floor of Congress.
In addition, some people are harder to slander and libel than others—such as
"public figures" (i.e. politicians, celebrities).
The provision for unfettered religious freedom always is controversial. How
come Congress can open sessions with prayers but school classrooms may not? Why
is U.S. currency engraved with "In God We Trust" but the Ten Commandments can’t
be displayed in an Alabama courthouse lobby? Baffling.
And again, a controversial constitutional amendment is being proposed to
criminalize abuse of the U.S. flag by protestors who claim free speech.
Even First Amendment disciples create goofy contradictions.
An Arizona State University journalism professor recently boycotted the
appearance of CBS "60 Minutes" curmudgeon Andy Rooney at an ASU-sponsored event
because Rooney belittled female TV commentators at pro football games.
The professor exercised his free speech right to protest Rooney who, yes,
simply exercised his free speech right to make a fool of himself by demeaning
women.