Democratic Underground

Weeding the First Amendment
August 25, 2001
by William Rivers Pitt

"We are willing enough to praise freedom when she is safely tucked away in the past and cannot be a nuisance. In the present, amidst dangers whose outcome we cannot foresee, we get nervous about her, and admit censorship." - E. M. Forster

This is the short version as I understand it:

Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We all know these words, from the First Amendment to the Constitution of the United States. If America were a religion - it is, for many of us - those words above would be on par with such phrases as, "Do unto others as you would have them do unto you."

It is scarcely possibly to describe how important those words are. Think of them as you would any legislation. The words "Life, liberty and the pursuit of happiness" are poetic and brilliant, especially when one considers that they are words meant to define our most essential purpose. They do not, however, have any teeth. They cannot be used to enforce law in a courtroom. The words of the First Amendment can, and have been many times.

The First Amendment is the bulwark of the people. It is all that stands between us and oblivion. Consider life without it for a moment. Be chilled by the thought, as I am.

The words of the First Amendment have been immortalized in legal decisions for as long as this nation has existed. There is precedent piled upon precedent that describes, in detail, your ability to speak as you please and gather where you may. In so many ways, those words are a living thing, in transition each day.

Like all other living things, however, those words are mortal. They are not written in stone. They can sicken, and they can die. The death of the First Amendment would not be heralded by jackboots kicking in your door. It would be far more insidious in nature.

Our right to freely speak and freely gather lives and dies in the courts. It is before judges and juries that your liberties are redefined, virtually every day. The essence of the law is precedent - the case that came before yours which speaks in favor of your argument. Consider the slow cancer that would burn through our rights if one, or two, or ten cases were decided that took away a piece of our freedom.

Those cases would be used to justify other arguments in other courts. Eventually, a case based upon these precedents might reach all the way to the Supreme Court, where a favorable outcome is far from certain. We know all too well the Herculean effort required to overturn a decision made in that chamber.

That is the hypothetical. This is the real.

Not so very long ago, protesters outside clinics where abortions are performed were able to get nose-to-nose with women entering and exiting the facilities. They would hand these women flyers, shout verses from the Bible at them, and follow them step for step to the door.

In 1993, a law was passed in Colorado that required protesters to maintain an eight-foot buffer zone around any person within 100 feet of a clinic. The protesters sued, claiming that their First and Fourteenth Amendment protections were being violated.

The case of Hill v. Colorado made it all the way to the Colorado Supreme Court, which refused to hear the case. In essence, their refusal to take up the matter affirmed the legality of the buffer zone.

Hill v. Colorado went to the U.S. Supreme Court. On June 27th, 2000, that court upheld by a 6-3 margin the law mandating the eight-foot buffer. Hill v. Colorado was as permanently fixed a law as any can be.

Basically, the Colorado case affirmed the ability of those in authority to corral protesters who infringe too far upon the rights of others in their quest to further their cause. The degree of that infringement is decided by said authority. Today, the precedent set by the Colorado case has been broadened. Dare I say, it has been perverted.

Over a year after the Hill v. Colorado decision, a new phrase has entered our political lexicon: the First Amendment Zone. A First Amendment Zone is an area specifically cordoned off by police or Secret Security agents. Protesters must remain within this Zone or face arrest and detainment. Often, these Zones are placed far away from the object of protest.

A vast army of protesters follow George W. Bush wherever he goes today. These protesters have much to complain about. None of them are wealthy donors, and will therefore never be able to purchase an opportunity to speak to Bush personally and voice their grievances. The only redress they have is in the street, where their combined voices might reach his ears.

Not long ago, the First Amendment Zone established at a protest against Bush in Birmingham Alabama was nearly five miles away from where he was attending a fundraiser.

No shout carries five miles. For all intents and purposes, Bush is completely unaware of the vigorous response his policies have drawn from common people, who own no press machine and have only asphalt to use as a platform for their concerns. He has never seen them, and has never heard them, thanks to the Zones.

For personal reasons, I am loath to call the decision in Hill v. Colorado a case of bad law trying to do good. I live very close to the Planned Parenthood clinic where a man named Salvi chose to defend the rights of the unborn to deadly effect with an automatic rifle. I pass it every day, and watch the protesters line up to harass private citizens in pursuit of private business.

It is clear, however, that the Colorado case has been used to establish a reason for those in authority to place political protesters at arms length. Authorities are now able to remove and contain people who are neither trespassing, nor violent, nor a security concern, on the justification that they might be a security concern. In Alabama, the protesters were moved several Zip Codes away.

The ramifications of the twisted use Hill v. Colorado is being put to must be addressed. This infringement of our right to assemble and to seek a redress of grievances with the government happened in the courts. It must be unmade there.

A group out of Texas is working in concert with the ACLU to put forth a legal challenge to these First Amendment Zones. If you have any input on the subject, or if you wish to aid in the fight, contact them at this address: This is a battle we can win.

There are other fronts where our First Amendment rights are under assault. Our ability to effectively defend ourselves is far from certain.

James Higdon, in his marvelous essay 'Borking the Fairness Doctrine,' describes in detail the manner in which the free flow of ideas and opinion has been dammed by a few powerful corporations. At one time, Higdon explains, it was illegal for any entity to own a newspaper in the same city where it owns a television station.

Today, thanks to conservative judicial activism culminating with a ruling that the FCC's 'Fairness Doctrine' is not a law but a guideline, and thanks to Clinton's 1993 signature upon the telecommunications bill, Rupert Murdoch's News Corp. now captures 41% of the nation's news market. Much of the remaining 59% is controlled by the monolithic AOL/Time-Warner corporation. In New York City alone, Murdoch owns two television stations and the popular New York Post.

The purpose of the First Amendment is to ensure and protect the free flow of ideas and political opinion in this country. Today, the dissemination of those ideas is controlled by a politically conservative few. Virtually all of America perceives political and ethical debate through the medium of television and newspapers.

It has become clear that the conservative elements who control the vast majority of the message have no interest in that free and open exchange of ideas. The idea of a 'Liberal Media' is a sham. There is no nationally known liberal voice with the audience that Rush Limbaugh or Bill O'Reilly enjoy, because no liberal voice is allowed to build one.

Freedom of speech becomes utterly worthless when the concepts and arguments that enrich that speech are hidden, pruned, and caged behind fences. You cannot argue in favor of, nor petition your Congressperson for, nor even be allowed to believe in, that which you have never been told of.

As Higdon explains, in order to reverse this dangerous trend, Congress must pass a law. Congress must also be prepared to override the inevitable veto from George W. Bush, a veto his father and Ronald Reagan either threatened or actually used when similar legislation was offered during their administrations.

The need for such a law is self-evident, but it is doubtful such legislation could succeed. In order to build a consensus for such a law, a Congressperson would have to publicly rally the people. The only medium where such opinions can be widely heard is television. The conservative corporations that control what is broadcast could easily squash any public attempt to break their hegemony. Such is their power.

The limitations placed upon free expression have crept into virtually every corner of American life. Mayor Rudolph Giuliani has been working for years to tear down First Amendment protections for artists in New York City that were established in 1982. If he succeeds, freedom of speech will be imperiled for all New Yorkers, their rights left to the rough mercy of political fiat.

The highest levels of government have not escaped taint. According to the New York Times, Alfred Ross, the keynote speaker at a recent convention for corporate anti-discrimination officers, was barred from speaking. He had intended in his speech to denounce members of the conservative Heritage Foundation, whom he claims have "engaged in a battle to turn back the clocks on the civil rights gains of the last four decades."

Upon reaching office, Bush appointed Elaine Chao to the position of Labor Secretary. Before her appointment, Chao worked for the Heritage Foundation. It was made clear to Ross by convention co-chairman Robert Willis that the Labor Department would look with severe disfavor upon the National Industry Liaison Group, which depends on the Labor Department to win lucrative Federal contracts. Pointedly, all the corporations represented at the convention, including Ross', would be affected.

According to the Times, Willis bluntly told Ross that, "They are making threats·you need to understand that they audit you."

The Times reports that the direct source of these threats is Labor Department official Charles E. James, Jr. James threatened to withdraw Labor entirely from the convention. The outcome of such an action, and the effect a hostile Labor Department would have, would be devastating to the companies involved. Ross was summarily dropped from the speakers list.

This blatant strong-arming and silencing of a voice out of step with conservative ideology by the Bush administration is profoundly disturbing. When corporate officers charged with ensuring racial equality within the business community are not allowed to hear how that equality is under assault, they cannot properly defend workers against discrimination. They are not even granted the ability to consider the situation from more than one perspective.

Thus, the cancer spreads.

The words of the First Amendment that define and protect our freedoms are a living garden. Tend them, for your very lives. They are being pruned and uprooted every day, in all walks of our American life. Without them we are nothing. Worthless. Gone.

Supreme Court upholds abortion protest limits

"Borking" the Fairness Doctrine

Bush Aide Accused of Having a Talk Canceled

Giuliani To Challenge 1st Amendment in NYC

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