First Amendment Anniversary Finds Press in Sea Change

Gene Policinski

Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

As the First Amendment marks its 217th anniversary on Dec. 15, here’s a quick look at where our basic freedoms stand — starting with a free press:

As 2008 ends, most newspapers are shrinking dramatically in size, staffing, circulation. At least a few sizable cities — including, at one point, Portland, Maine — have faced the possibility of having no local daily newspaper at all. Analysts predict similar changes in local and network broadcasting in 2009.

Ironically, this “free press” vanishing act is propelled in no small part by “free media” (as in “no charge”). Even as the Internet and new technology spur new and ever-more-varied methods of sending and receiving news and information, they are helping to decimate once-lucrative business models that supported what we now call mainstream media.

In one sense, this latest American media revolution also is about opportunity, and a return to its individual, locally owned, locally focused roots. In our early history the emphasis was on the opportunities of a free press, not its size or wealth. No longer was a king’s license required, a king’s voice the only one heard, or a king’s wrath to be feared.

Echoing that history, an explosion of community bloggers and community online ventures is providing commentary and some reporting, and Yahoo, Google, America Online and other sites are piling up regular users though they originate little reporting of their own.

But while there’s more news and information available, the First Amendment question of the year — and likely for the next several years — is whether the “watchdog” role of a free press will carry over from the “dead tree” media to their electronic progeny. Some blogs fill the bill: Multiple sites reporting on the U.S. Supreme Court are an example. But there is no new-media machinery yet in place to provide most of us with expert, year-after-year reporting and tracking of courts, legislatures, police departments, schools and taxes.

A free press as an effective check on government is what the nation’s Founders had in mind when they provided constitutional shelter for scribes of their time and ours. Individual expression and opinion are vital in a democracy, but so are accurate information and public accountability. And for more than two centuries, we’ve been able to expect all of that from a free press – even if it cost us some coins to purchase the means of reporting.

New technology is creating other First Amendment challenges, as well:

  • President-elect Obama’s successful fundraising, with a powerful online component, attracted $750 million as he spurned public funding. In the process he challenged a creaky system of federal campaign-finance limits that some maintain improperly limit free speech. In this year’s State of the First Amendment national survey, support declined for limits on contributions.
  • Social-networking sites like Facebook and MySpace spawned controversies ranging from defamation flaps between school administrators and students to a trend involving teens’ sending naked or semi-naked pictures of themselves to friends — triggering child-pornography charges.
  • Spurred by a teen’s suicide, Missouri lawmakers enacted a law making online harassment — “cyberbullying” — a crime.

Not all First Amendment challenges are electronic in nature:

  • In Boston, a Rastafarian man will get his day in an appeals court challenging as religious discrimination a Jiffy Lube company policy requiring him to cut his hair and shave off his beard. A lower court held the company had a right to control its public image and that it did not have to exempt the employee because of his beliefs.
  • Legal fights erupted in several state courts over vanity or specialty license plates, prompted by individuals seeking to display creative messages or by state-approved slogans like “In God We Trust” or “Choose Life.”
  • Laws to ban picketing at military funerals were challenged in several Midwestern courts, and a small protest group vowed to fight criminal charges.
  • On a Sunday in September, pastors in as many as 22 states defied an Internal Revenue Service regulation barring direct candidate endorsement from the pulpit under penalty of their churches’ losing tax-exempt status.

And with the holiday season, one more First Amendment debate is worth noting. In Washington state, officials permitted atheists to post a message alongside a Capitol hallway Nativity scene. That upset some, including demonstrators who marched around the building with protest signs — exercising their rights of free speech, free press, assembly and petition.

All in all, a pretty vigorous 2008 workout for a 217-year-old.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].