In a fit of democratic euphoria, Thomas Jefferson, Esq., declared that if he had to choose between a government without a free press and a free press without a government, he would favor newspapers every time.
I Hear America Silenced
Will Jerry Ford Really Kill the First Amendment?
The prospect is certainly beguiling: the United States as one big city room, a kind of super Front Page or All the President’s Men (retitled All the Managing Editor’s Men). Eventually, characteristically, President Jefferson reversed his position. He came to detest the press. He took a particularly dim view of one editor who kept mentioning the long affair that the president had had with a slave girl. Finally, the ardent upholder of newspapers hurled the full power of the presidency at the hapless editor, with a most chilling effect.
Presidents have always disliked the press. In fact, the history of the United States can be interpreted as one long hassle between the rulers of the country on the one hand and the press on the other … that is, some of the press some of the time since most of the press most of the time reflects the views of the ownership every bit as loyally as the rulers mouthpiece the incumbent president. Nevertheless, John Adams nearly did the press in with the Alien and Sedition Act. Over the years editors have been intimidated, put in jail, destroyed financially by displeased sovereigns. Yet freedom of speech has never been entirely curtailed for long, thanks to that subIime afterthought to the Constitution, the Bill of Rights, whose First Amendment states, without ambiguity: “Congress shall make no law … abridging the freedom of speech, or of the press.”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speed, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.First Amendment
A Virginian named George Mason was responsible for the beautiful clarity of this amendment. A principal author of Virginia’s Declaration of Rights, Mason believed that “the freedom of the press is one of the greatest bulwarks of liberty.” He incorporated this conviction into the First Amendment. Over the years our rulers have done everything possible to abridge or nullify the First Amendment. Happily, to date, they have failed.
The late Justice Hugo Black used to say that the First Amendment means exactly what it says and that no power in the land may stop a citizen from saying or writing or publishing his opinions. But even Justice Black agreed that it would be a criminal act to publish troop movements in time of war, while Justice Oliver Wendell Holmes doubted that it was a good idea if any nut who wanted to yell fire in a crowded theater where there was no fire were allowed to do so. Except for these sensible limitations, we are — in theory — free to say or write or publish whatever we want to. In practice, however, this freedom is constantly threatened. Our rulers are nothing if not ingenious. After all, they ask, just what is a time of war?
According to the Constitution a time of war is that period between Congress’s declaration and the subsequent peace. In 1941 Congress declared war on the Axis powers. Now, thirty-five years later, we are still at war more or less openly with this power or that power. Why? Because the war/defense industries made so much money during the Second World War that they could not face peacetime and its discontents. After all, the one thing that American capitalism cannot bear is competition in the open marketplace. Recognizing this, gallant Harry Truman helped launch the Cold War. Only by frightening the citizens with the specter of monolithic international communism could he justify the maintenance of a huge army and the expenditure of billions of dollars for armaments. One does not need to be a philosopher to come to the conclusion that a permanent garrison state is not a healthy place for civil liberties.
The ultimate assault on the First Amendment occurred during the Nixon administration when government mistakes or crimes were routinely labeled “Secret” in the “national interest,” thereby making a criminal of anyone who tried to expose the government’s incompetencies. Happily, the Supreme Court has been moving toward a strict interpretation of the First Amendment since 1951, when the Court hit rock bottom by upholding a lower court’s conviction of a number of American Communists who were supposed, somehow, to be overthrowing the government. Since that nadir, the Court has come more and more to accept the position that ideas must be freely traded in, as Justice Holmes put it. Even the Nixon justice Lewis Powell takes a strict view of freedom of speech. In 1974 he wrote “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” This observation is worthy of Thomas Jefferson, Esq., though it is at variance with the practices of President Jefferson.
The Court has also begun to face the fact that obscenity is not an absolute concept. As Justice John Harlan put it: “One man’s vulgarity is another’s lyric.” This is not, alas, a majority view of the present Court. Although even the most repressive of the justices favors free political debate, a majority still accept the Mosaic-Pauline belief that the nation is a family whose father is represented by a court that thinks it has every right to determine what the children may or may not do in bed with one another, what they may eat, drink, sniff, and mainline. The law’s constant intervention in the private lives of the citizens is perfectly opposed to the spirit and, sometimes, to the letter of the Constitution. Yet the Burger Court blithely behaves as if a secular government had a divine right to implement, through law, the superstitions of the various decaying religions. Worse, the Court believes that certain arrangements of words on a page or of images on celluloid can somehow subvert the authority of that ruling class the Court unquestioningly serves; as a result, those words, those images, must be banned.
In recent months the Ford administration has emerged as a resolute enemy of the First Amendment. Disturbed that an influential minority in the Congress and in the media (to use that unlovely neologism) have found alarming the way the CIA has spied on Americans, plotted murders, and generally behaved like an organ of the Third Reich, Mr. Ford has come up with an extraordinary series of proposals whose object is not to curb the CIA but to silence (in the national interest, of course) its critics. For instance, anyone who discloses an official “secret” would be guilty of a crime. Since every mistake or illegality perpetrated by our rulers is promptly classified sec ret, the government would be, in theory as it now is pretty much in practice, absolutely unaccountable. Best of all, from Ford’s point of view, investigative critics could be put in jail. Yet, as Anthony Lewis points out, “there are very few real secrets, and attempts to define them have been grossly abused.”
The Ford administration’s proposals appear to be gaining support in the present Congress. Certainly, there was very little outcry when Danie l Schorr was suspended from CBS because he had given the Village Voice a congressional report. Yet Mr. Schorr’s fate is of interest to everyone, for if he is found to be in contempt of Congress (that universal emotion one must not express in words) “then,” as he put it, “they can get any reporter next week.”
Is next week at hand? Tune in during the Bicentennial season and watch the continuing battle between those who uphold George Mason’s beautiful invention and the bad guys who mean to destroy it. Bear in mind, also, Mason’s inspiration as published in Dixon and Hunter’s Gazette for May 18, 1776: “The use of speech is a natural right. Printing is a more extensive and improved kind of speech.” Whoever would limit this right does so at his own peril.
The First Amendment can mean a lot of things. As of this writing, for example, the Supreme Court just ruled that spending money on a political campaign — more specifically coordinating those efforts in this case — qualifies for free speech protections. Naturally this means that people with more money have more important speech than the rest of us, but that pretty much fits the rest of life if you think about it. Without taking a side as to whether that consititutes a good thing or a bad one, it does not take much understanding to know that protecting free speech should be a fundamental goal for all of us. How else can we tell our political leaders they are being complete bafoons?
