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The State of the First Amendment (First Amendment Center) (PDF file)

The First Amendment to the United States Constitution guarantees the nation "freedom of the press," but what does that mean? Most of us have at least a vague notion of freedom of the press, but even after 200 years of the republic, we still have not nailed it down definitively. Here we explore some of the history and precedents that have helped us arrive where we are today in our ideas of a free press.

Notes

2007 -- the year of the First Amendment? Well, it isn't likely, but I always begin a year with that great hope -- and very little else. There is no reason to be confident. Our leaders want to diminish the rights of the Constitution because it will make them more comfortable and more secure in their power. The people seem to buy these outrages in the name of solving "problems." The problems are rarely solved, but the politicians get more comfortable. This past year we saw the Federal Elections Commission "reprimand" a NASCAR driver because he had a "Bush-Cheney" sticker on his car during a race. We can only hope that the FEC continues to make such ridiculous decisions so that people will wake up to how dangerous that agency has become. Meanwhile, we can hope (but, as I said, without a lot of confidence) that high school principals will leave the student press alone, that prosecutors will find other ways to pursue their cases besides jailing journalists, and that FEC bureaucrats will get stuck in traffic on their way to work. And to give you a taste of what is going on with the First Amendment and the Constitution, I recommend the following as a starter:

Looking after the First Amendment is never easy, but it's always worth doing. (Posted Jan. 1, 2007)

That was then. Once upon a time, a president of the United States -- in the face of grave danger to the nation -- had this to say about government secrecy:

The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings.

It wasn't George W. Bush. More. (Posted July 12, 2006)

First Amendment protection. With the Jack Abramoff lobbying scandal story dominating Washington, one of the cable news shows earlier this asked its viewers to go online and vote on the question of whether or not "all lobbying should be banned." The question was both silly and stupid -- and maybe even a little dangerous. Nobody likes "lobbyists" or the amounts of money that go along with their modern activities, but lobbying is what the Founding Fathers meant when they wrote a protection in the First Amendment for the right to "petition the government for redress of grievances." This right of petition is one five the First Amendment gives us (religion, speech, assembly, and press are the others), and it's a pretty important one because it is a right extended to everyone, not just lobbyists. We should remember that before we go tossing it away. (Posted Jan. 6, 2006)
Update. Washington lawyer Jan Baran has an excellent piece about this topic in today's Washington Post. The article has a bit about the history of lobbying in Washington. (Posted Jan. 8. 2006)

Censorship, pure and simple. It is sad, frustrating and infuriating when you see people who should know better acting in ways that are just not very intelligent. That was the case this past week with the high school principal and school superintendent in Oak Ridge, Tenn. The principal confiscated copies of the school newspaper before they could be distributed because she objected to the subject of a couple of the articles in the current issue. She did not point to any errors the articles had made. She simply didn't think her students needed to know about birth control. More (Posted Nov. 27, 2005)

Contracting the First Amendment. One of the ideas this web site advocates -- in addition to good journalism and good journalistic practices -- is expanding the First Amendment. Unfortunately, there are too many people and organizations trying to do just the opposite. A recent example comes from a judge in Washington state who thinks that controlling campaign finances is more important than political advocacy and free speech. More (Posted Aug. 8, 2005)

Miller goes to jail; Cooper released by source. Judith Miller, a reporter for the New York Times, was taken into custody today because she would not reveal her confidential sources to a grand jury investigating the naming of a CIA agent. Matthew Cooper, a reporter for Time magazine who was threatened with jail in the same case, has said that his source has released him from his pledge of confidentiality and that he will testify before the grand jury. This is a complex case that has been developing for many months. The Poynter Institute has put together a page of resources about this case. It also quotes its ethicist Bob Steele as saying, "I admire her fight on principle. I admire the spirit of journalistic independence. The result may be an additional traction point for the federal shield law cause." One of the best places to get information on "reporter's privilege" is on the web site of the Reporters Committee for Freedom of the Press. This page looks at the privilege on a state-by-state basis. (Posted July 6, 2005)

Artist, journalist . . . or both? The University of Alabama, where I taught for 25 years, has sued artist Daniel Moore saying that Moore's paintings, many of which depicted memorable moments in Crimson Tide football history, violate the University's trademark protections. Moore has responded with a suit against the University saying it is interferring with his business. Moore also makes a First Amendment claim. He says that what he does -- observing a game, executing a painting, making prints and selling them -- is no different from what a photojournalist for a newspaper does. The University, he says, does not charge the newspaper with trademark violations when it publishes pictures of the football game and sells its newspapers to the public. So why should it charge him? Why, indeed?
More (Posted April 13, 2005)

Who is a journalist? The world of online journalism fluttered a bit last week when the Court of Appeals for the District of Columbia decided that the journalists subpoenaed in a federal investigation of the leaking of the name of a CIA agent in 2004 did not have any privilege to shield confidential sources. In a concurring opinion, Judge David Sentelle mentioned web logs and “bloggers” in his discussion of the problem of defining a journalist. That nod to bloggers, which seemed to equate them with journalists, was only incidental. The real question for Sentelle was, "Who is a journalist?" His logic is correct, but his conclusion is wrong. (More) (Posted Feb. 19, 2005)
The court's entire 83-page opinion is available on this site as a PDF file.
Update: Michael Kinsley's Sunday column (Feb. 20, 2005) has a different take on this issue (when should a promise of confidentiality be made, not who is a journalist) but comes to the same conclusion: It is in the public's interest to try to figure this out so that journalists do have some protection.
Update: The question of who is a journalist is playing out in a different way and in a different courtroom. A New York Times story by Jonathan Glater describes the issue in a California lawsuit where Apple is suing a blogger for publishing inside information about its products. The blogger is claiming protection of his sources under California's shield law. Should the judge rule that the blogger can be considered a journalist, it would open up the shield privilege for many people not working for traditional media outlets such as newspapers and television stations. The story says a ruling could come on this as early as this week. (Posted March 7, 2005)

Students and the First Amendment. A flurry of news reports – a good bit of hand-wringing – have appeared in the last couple of days about a new survey that shows that many high school students do not have much knowledge or regard for the freedoms guaranteed by the First Amendment. A third of the students said the First Amendment goes “too far” in granting rights to Americans. Hodding Carter, the head of the Knight Foundation that sponsored the study, called the results "not only disturbing; they are dangerous. Ignorance about the basics of this free society is a danger to our nation's future."

True, but as is the case with many news reports, stories about this survey have failed to put the numbers into some context. (More on this) (Posted Feb. 1, 2005)

A new approach to copyright. Most people understand one of the ideas beyond copyright laws, but they do not get the other one. The first idea is to give some protection to the creator or owner of a copyrightable work and to make sure that person has some control over its use and, possibly, value. The second idea is to limit that protection so that eventually the creative work – whatever it is – would go into the public domain. The U.S. Constitution gives to Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (Article 1, Section 8, Clause 8)

For limited times, the Constitution says, not forever.

But over the last four decades, Congress has extended the time an owner can hold a copyright 11 times, so that now if a copyright is held by an individual, it lasts for that individual’s life plus 70 years, and in some cases corporations may hang onto copyrights even longer. In the age of the Internet, that approach to protecting copyrighted works is becoming less and less workable.

Lawrence Lessig, a law professor at Stanford University, has been arguing against these lengthy copyrights for many years. (He led an unsuccessful challenge to the current copyright law and argued his point, unsuccessfully, before the U.S. Supreme Court.) He wants to bring back more of a balance between the rights of copyright holders and the general that having works in the public domain does. To that end, he and others at Stanford have formed Creative Commons, a web site that allows writers, photographers, illustrations, etc., to post their works and to specify how much copyright protection they would like. For instance, a photographer may post a picture and say that anyone can use it as long as the photographer is credited.

Creative Commons is the subject of an article in the Online Journalism Review by Linda Seebach. The article explains in more detail how this works and the thinking behind it. For publishers and editors of high school and college media, this site could provide material that can be used without fear of conscience or law. (Posted Jan. 23, 2005)

State of the First Amendment. A sidebar on page 452 of the book talks about public opinion toward the First Amendment. The survey cited there, conducted by the First Amendment Center, has been updated. The following is the introduction to the report on that survey:

In 2004, Americans’ support for their First Amendment freedoms — deeply shaken by the terrorist attacks of Sept. 11, 2001 — continues to rebound and is back at pre-9/11 levels, according to the annual State of the First Amendment survey, conducted by the First Amendment Center in collaboration with American Journalism Review magazine.

“The 2004 survey found that just 30 percent of those surveyed agreed with the statement, ‘The First Amendment goes too far in the rights it guarantees,’ with 65 percent disagreeing. The nation was split evenly, 49 percent to 49 percent, on that same question two years ago, in the survey following the ‘9/11’ attacks,” said Gene Policinski, acting director of the First Amendment Center.

The entire report is available on this site as a PDF file.

James Madison. The author of the First Amendment was James Madison, one of the brightest and most politically astute of the Founding Fathers. Madison studied and thought deeply about many of the political issues confronting the young republic. Here are a couple of the things he wrote about the value of the press in a free society:

Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people ... is favorable to liberty.
– National Gazette, 1791

It is to the press mankind are indebted for having dispelled the clouds which long encompassed religion, for disclosing her genuine lustre, and disseminating her salutary doctrines.
– Speech in the Virginia Assembly, 1799


Open records, open government. Many governmental bodies – particularly on the local level – like to operate in secret. That is, bodies such as school boards and zoning authorities find it easier to make decisions when they are not under public scrutiny. Sometimes these decisions are questionable, and those serving on these boards would rather not be questioned. Such an attitude, however, runs counter to how Americans view their government and in fact limits the First Amendment right to petition the government. The National Freedom of Information Center is an organization set up to fight secrecy in government. Check out NFOIC’s web site, and see if there is a Freedom of Information center in your state.

Student Press Law Center. The Student Press Law Center is one of the most valuable legal resources in the field of journalism. The center keeps up with the many challenges to student press freedom throughout the country. It also offers advice to those who might be facing such a challenge. The web site has many resources for students, plus a good list of links to other organizations with the same interests.


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