Our core freedoms are put to use — and put to the test

December 4, 2014

By Gene Policinski
Inside the First Amendment

Our First Amendment freedoms have been put to use — and put to the test — in recent days.

In the U.S. Supreme Court chambers in Washington, D.C., an angry ex-husband sought to overturn his conviction for for making threats over the Internet, claiming the violence-laced language and the vile visions he conjured up on Facebook were just "therapeutic efforts to address traumatic events," even akin to some song lyrics.

Some defenders of free speech say ideas are not actions and the speakers' intent ought to rule here. But prosecutors who convicted Anthony Elonis say his posts would lead any "reasonable person" to feel threatened, including Elonis' ex-wife and a female FBI agent. And, they say, moving away from that standard would open the floodgates to new levels of harassment and intimidation, particularly via new technology and social media.

In Kennesaw, Ga., northwest of Atlanta, the city council voted 4-1 to deny a request by a small group of Muslim residents to open a temporary mosque at a strip mall while they searched for a permanent location. The four opposing councilmen didn't speak during the vote, but outside a gaggle of protesters did, waving American flags and displaying signs claiming "Islam wants no peace."

City officials said the mosque would create traffic congestion, conflict with retail stores nearby during weekday religious gatherings, and that it's the first time such a request for retail space has come up. But local news operations said a similar request by a Protestant Pentecostal group was approved in July, and the one council member who voted "yes" said the denial was rooted in discrimination against Muslims.

And in Ferguson, Mo., and now in New York City, we're seeing the oldest form of public protest — marches, rallies and occasional civil disobedience — combine with the newest form of petition and assembly via the Web and social media, over the refusal of grand juries to indict white police officers involved in the deaths of unarmed black men.

Social media exploded with protest in August over the shooting death of teenager Michael Brown, including a Howard University-based photo that propelled the now-common "Hands Up, Don't Shoot" chants. Web images and commentary from the scene quickly took local protest to a worldwide audience.

On Wednesday evening, within moments of announcement of the decision not to bring an indictment in Eric Garner's "chokehold" death, the "Twittersphere" was awash with comments: USA TODAY reported a tweet that said, "They can't choke this mobilization, this movement, this furiousness over the injustice of years of impunity." Celebrities also took to the Web over the Garner news: Comic Bill Maher tweeted: "I'd just like to know what a cop WOULD have to do to get indicted..." And talk show host Tavis Smiley tweeted: "Illegal chokehold, caught on tape, and still no indictment? Black life has little value."

And even arenas where real-world concerns normally don't intrude are caught up in these national conversations. Five St. Louis Rams players came onto the field Nov. 30 with their hands raised — drawing free expression support from team officials, but the ire of a police association spokesman who issued a vague warning of "I've got news for people who think that way."

As different as these examples of our core freedoms-at-work are — and occasionally, as in Kennesaw, where one freedom is pitted against another — the value of those basic rights is abundantly clear: From raw emotion to measured discussion, from the street to the courtroom, in ways not seen since the anti-war and civil rights movements of the 1950s and 1960s, the nation is talking to itself about social challenges that range across old issues and new technology.

Talk is no guarantee of solution, and passion may not lead to progress. But the nation's founders had the belief that an engaged, informed public, combined with an independent judiciary operating in the open, would enable the nation to arrive at both solutions and progress as long as those in power were not able to cut off discussion and debate. Hence, the strong language that starts out "Congress shall make no law..." and which extends to every level of government.

There are just 45 words in the First Amendment — but they prompt, protect and propel a good many more, and the nation is far better off for it.

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.

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