New Year Will See Some Old First Amendment Issues

Gene PolicinskiCommentary
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

Welcome, 2011, and all that you offer as a New Year: a chance for a fresh start and the promise of new opportunities.

But it’s fair to say that in terms of the First Amendment, you’re going to look a lot like your just-departed calendar relative. Many of the major court battles, legislative debates and public controversies of 2010 will waft right into the next 12 months with nary a pause for a chorus of “Auld Lang Syne.”

Several decisions on First Amendment cases argued this year are expected from the U.S. Supreme Court before its June recess. One involves whether relatives can sue over those hotly debated funeral protests. Another asks whether it’s constitutional for a California law to prevent minors from renting or buying violent video games. Others concern access to government records.

WikiLeaks apparently will go right on into next year leaking documents about U.S. government actions and policies, with an entirely new data dump of information about major banks and businesses threatened in the next few months. Then there’s the open threat that even more secret U.S. cables and notes will be disclosed if WikiLeaks founder Julian Assange is prosecuted, either on pending rape charges in Sweden or potential espionage charges in the U.S.

Potential fallout from the WikiLeaks controversy includes the possibility that The New York Times and other newspapers that did their own reporting on WikiLeaks-provided information could be prosecuted under the 1917 Espionage Act. If they are, it would be the first time news organizations were charged under the act since it was passed in the heat of World War I.

In any event, the U.S. Justice Department, Congress and the courts all are certain to be drawn into the situation even well beyond 2011, as lawmakers and federal agencies seek both to prevent future leaks and to find ways to prosecute domestic and foreign entities that disclose state secrets.

A just-signed federal law outlawing so-called “crush videos” replaced an earlier version voided this year by the Supreme Court. The new law was crafted in response to the justices’ decision that the original was too broadly written to be enforced, and might be used against legitimate productions such as hunting films.

But at least one group, the American Booksellers Foundation for Free Expression, notes that the new law still attempts to extend existing obscenity laws to cover depictions of violence — creating a new exception to free-speech protection.

School vouchers, corporate spending in elections, the role of religion in American public life … all will have a place in First Amendment debates in 2011.

Two anniversaries next year also are certain to produce First Amendment-related news: First, the 10th anniversary of the Sept. 11 terror attacks has great potential (if 2010 is any example) to exacerbate religious and societal tensions over the presence of Muslims in cities across the nation.

On a more positive note, Dec. 15, 2011, will be the 220th anniversary of the ratification of the Bill of Rights. Those original 10 amendments, beginning with the 45 words of the First Amendment, provide a constitutional safeguard for our basic freedoms. The national campaign “1 for All” — at — is working to raise understanding of our First Amendment freedoms and the visibility of this anniversary.

All in all, First Amendment issues will be front and center in American life in 2011. Just like 2010. Happy New Year.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. E-mail: [email protected].