On speech, court’s center has been on the right

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Vladimir Putin’s visit to Maine last weekend and two Supreme Court decisions announced just prior offer strong reassurance the First Amendment in the United States is alive and well.

During the “lobster summit” between the American and Russian presidents in Kennebunkport, about 1,700 demonstrated against the Iraq war and Russia’s crackdown on Chechnyan separatists. Given tensions between the former Cold War rivals, it would have been expected – if the summit were in Russia – to see anti-Bush protests.

It would be unlikely, however, that anti-Putin demonstrations would also have been permitted.

Protests were forbidden and the regime’s critics were silenced in Soviet Russia, and “democratic” Russia seems to be backsliding toward these bad old ways. Newspapers and television stations are increasingly under state ownership or control, and journalists and publishers critical of government are intimidated, prosecuted or even assassinated.

In the United States, by contrast, the First Amendment, now 216 years old, protects every individual’s right to freely speak, publish and assemble.

To be sure, our courts have struggled to balance these rights against the complex and sometimes competing demands of other legal rights, such as private property, and our fundamental need for security and stability. Yet this continual judicial balancing reaffirms the importance we attach to the First Amendment.

Mainstream right

Two Supreme Court cases decided in late June illustrate this point. In Federal Election Commission v. Wisconsin Right to Life Inc., the court struck down campaign finance reform legislation prohibiting corporations or unions from broadcasting “issue” ads shortly before an election, if the ad mentions a candidate for office. In Morse v. Frederick, the court upheld an Alaskan student’s school suspension for displaying a banner touting illegal drug use.

Many pundits saw these cases as the Supreme Court’s swing to the right. In fact, they are firmly within the mainstream of First Amendment decisions going back more than 40 years.

Judges have long been confronted by situations in which they felt obliged to sanction legislated restrictions upon free speech. As Justice Oliver Wendell Holmes famously wrote in a 1919 decision, “The question is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger.”

Holmes cited, as example, “falsely shouting fire in a theater.” There are many others: inciting a crowd to riot, revealing military secrets to the enemy, soliciting the commission of a crime, defaming another’s reputation, committing fraud in commerce, releasing a computer virus, etc.

Judges, at various times, have sought to avoid such “clear and present” dangers by issuing injunctions, entertaining criminal prosecutions or allowing private parties to sue for monetary damages.

Since the 1960s, however, a strong judicial trend has existed towards weighing free speech heavily against government assertions it has a legitimate interest in limiting speech. This has been accomplished in two ways – by requiring the government to identify its compelling interest in curbing speech, and insisting laws restricting speech be narrowly drawn to avoid gagging or discouraging related – but harmless – expressions.

Decades of controversial First Amendment decisions have upheld citizens’ rights to expressions ranging from the sublime to the outrageous – like the right to publish without “prior restraint” (censorship), burn the American flag as political protest, refuse to say the Pledge of Allegiance, possess obscene materials, conduct a neo-Nazi march in a heavily Jewish neighborhood and shout obscenities at a police officer.

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Twenty years ago, I was privileged to participate in the defense of a lawsuit brought by L.L. Bean, which attempted to bar an adult magazine from spoofing its trademark and clean-cut image with a salacious spread entitled the “L.L. Beam Back to School Sex Catalog.”

A decision issued by the First Circuit Court of Appeals, and allowed to stand by the Supreme Court, held that the private property rights of a trademark owner to exclusive use and control of its trademark are trumped by the First Amendment-guaranteed right to satirize it.

Though the Wisconsin case gutted a key provision of campaign finance reform law, the court acted to protect a critical interest – preserving an open forum on issues of public interest. The Morse decision was also reflective of a long trend of trimming constitutional rights of children to protect them from harmful influences – notably drugs, pornography and violence – while bolstering the authority of teachers and administrators to maintain school discipline.

Society’s division

Every time the First Amendment is judicially interpreted, it has profound consequences. First Amendment decisions, therefore, attract considerable public attention and controversy.

Despite the ideological differences between “conservative” and “liberal” jurists over affirmative action, abortion and state’s rights in recent years, the Supreme Court has taken a non-ideological approach to First Amendment cases. It is the public, more than the court, which has divided along ideological lines.

Various groups assume opposing positions, depending upon whose ox is being gored. If one faction considers a form of speech offensive, it often seeks to ban it. Such a parochial view misses the point of the First Amendment.

If only speech acceptable to the vast majority is permitted, the yeast of change can never rise and the heavy hand of authority and conformity will stifle new ideas, dialogue and dissent. Worse, suppressed ideas tend to head underground, provoking extremism and violence, and enforcement of censorship requires governmental intrusion into citizens’ lives (through the use of spying, eavesdropping, informants and the like).

If you don’t care for the fact your neighbor can voice ideas you find offensive, think how much less you would like being silenced, Putin-style, when it came your turn to speak.

Elliott L. Epstein, a Lewiston attorney, is founder and board president of Museum L-A and an adjunct history instructor at Central Maine Community College. He can be reached at eepstein@isaacsonraymond.com.

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