State of the First Amendment — as others see it

July 30, 2015

By Gene Policinski
Inside the First Amendment 

There's no doubt that a huge number of Americans are unable to name the five freedoms protected by the First Amendment — national survey results each year since 1997 sadly leave little doubt about that circumstance.

On a more positive note, when reminded of the core freedoms of religion, speech, press, assembly and petition, our fellow citizens line up behind them in large numbers.

But when it comes to how those freedoms apply in everyday life? Well, it's not that there's less support. Rather, less agreement.

About a month ago, the Newseum Institute's First Amendment Center published the results of its annual State of the First Amendment survey and the findings of a follow-up survey that focused on issues around display of the Confederate battle flag. The former was taken before a U.S. Supreme Court decision that allows Texas officials to ban display of the flag on state license plates, and before the killings in Charleston, S.C., by an apparent racist who had posed for a photo displaying the flag. The latter survey was taken after both had occurred.

In sum, the two survey results showed a shift in how the public viewed the Texas auto tag ban — swinging from opposed to support. And the second survey found that while a majority of white and Hispanic respondents did not attach the same racist meaning to the flag as did black respondents, all three groups favored taking down the battle flag from public monuments and government buildings, and approved of private companies removing flag-related items from store offerings.

Some interesting reactions to the reporting of those results have come this way via email, and it is worth sharing a few.

In one email, noted as a "Letter to the Editor," in which the writer complained that the reporting, citing this column, "seems to be saying that as long as a majority believes then the First Amendment does not apply." Well, that's hardly the case. Freedom of speech means that you and I and others get to say what we will regardless of majority opinion — including, if we wish, public and vigorous display of the Confederate battle flag.

What the First Amendment does not mean is legal insulation for some from decisions by elected officials on how public funds are expended, or from a reversal of earlier decisions. The First Amendment protects our right to speak, but doesn't silence others who are just as free to disagree, criticize, and oppose.

This email writer also claimed desecration of cemeteries, violence, and even murder of pro-Confederate flag areas and supporters — saying the purported perpetrators "know how this First Amendment thing works these days." Even if such things have occurred, no one has repealed laws against such criminal actions, before or after decisions to remove "that flag" from public display. Illegal acts were never protected by the First Amendment.

Another writer, who says she lives "Up North," wrote that she's now getting her concealed gun permit to join "the overwhelming silent majority that is pretty close to rising up to all this politically correct garbage." Unable to get a proper flag, she said she settled for "a Confederate towel and it's pinned to my clothesline." After a few ugly slams at "welfare cheats, illegals, foreigners and fake causes," blacks, President Obama and "bedwetting" liberals and Republicans she does not like, she says the nation is "turning to Communism and socialism!"

Whew — a lot of negative territory in relatively few words. But that's free speech — even hateful remarks are protected. And one theory about the First Amendment is that by permitting such thoughts to be voiced publicly, without fear of government action, we're less likely to rely on our Second Amendment right to express ourselves — in most cases.

Another writer — who began by advising me to "get a life and grow up dude" — followed that greeting by addressing his note to "just another history/revisionist liberal who only 'feels good' when trying to suppress others."

On a more serious note, he suggested I have "little understanding of what this country's founders believed in when writing our Constitution." And a cartoon attached to the email noted, "We can remove flags and symbols all day ... but it's the hate in people's hearts that needs to be removed."

And what of the Founders' intentions in protecting our freedom of expression? The First Amendment and the rest of the Bill of Rights were written as restraint on government, not to provide government endorsement of any point of view, faith, or political party — even after such support, if we are to be honest, was tacitly or directly given for years, or even decades.

Our core freedoms were put in place to counter what those in the Founders' generation called "the tyranny of the majority" — not just superior numbers on this issue or that, but an entrenched majority that could control public policy over time — effectively denying a minority from ever being an effective force.

Removal of the Confederate flag from some publicly funded displays or private shelves does not signify a lessening of free speech. Rather, it demonstrates the power of unrestrained speech to reach even those who do not necessarily agree with the "why" but do approve of the "what" — even if it took 150 years to do it.

But let's give the emailbag writers their due on an underlying fear they express — the prohibition of private displays of the flag or other symbols some dislike. In a thoughtful dissent on the Texas flag decision, Justice Samuel Alito decried the Supreme Court's decision on Texas's auto tag that will preclude free speech on what he properly called personal "little mobile billboards" that no one should mistake for a government-sponsored message.

And let's all stand guard against legal erosion that would somehow limit the expression of those half-dozen folks I saw over the weekend on southeastern Tennessee roads, flying large battle flags from the rear of pickup trucks. Such overt displays may offend some, or even many, but those in opposition are free to buy their own trucks and flags and take the same highways.

No government subsidy, support or limits, and no Supreme Court justice in sight. That is how real free speech works. Really.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org. Follow him on Twitter: @genefac

For more on the U.S Supreme Court's decision in Walker v. Sons of Confederate Veterans (Confederate battle flag decision), more 'Inside the First Amendment' commentary, and reports on First Amendment news and issues, visit www.newseuminstitute.org.

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