Nation Needs First Amendment Refresher Course

By Edward Fitzpatrick

We, the people, don’t know the first thing about the First Amendment.

Well, some of us do. But according to a new survey by the University of Pennsylvania’s Annenberg Public Policy Center, 37 percent of Americans can’t name any of the five freedoms protected by the First Amendment — not a single one.

The good news, such as it is: 48 percent of us know that the First Amendment protects freedom of speech.

But just 15 percent know it protects freedom of religion. If a Rhode Islander such as Roger Williams were still around, he might say: YouGottaBeKiddingMe!

Only 14 percent realize the First Amendment protects freedom of the press. (That hurts). Ten percent know it protects the freedom to assemble peaceably. And a paltry three percent know it protects the right to petition the government for a redress of grievances. (Yet five percent think the First Amendment protects the right to bear arms.)

So perhaps it’s no surprise we are seeing so much rampant ignorance, blatant disregard and flat-out hypocrisy when it come to the First Amendment these days — both at the highest levels of our government and at some of our finest universities.

Take Attorney General Jeff Sessions, for example.

Our nation’s top law enforcement officer recently attempted to deliver a lecture on free speech rights, saying: “The American university was once the center of academic freedom — a place of robust debate, a forum for the competition of ideas. But it is transforming into an echo chamber of political correctness and homogenous thought, a shelter for fragile egos.”

Well, there’s no doubt some students are failing Free Speech 101. But if colleges are supposedly filled with liberal “snowflakes,” this administration represents a fragile-ego blizzard that has tried to chill a range of First Amendment freedoms.

For instance, Sessions delivered his lecture at the same time that his boss — President Donald Trump — was encouraging NFL teams to fire players who kneel during the national anthem in peaceful protest against racial injustice.

While Trump has a right to condemn protesters, Roger Williams University constitutional law Professor Jared A. Goldstein said, “The national anthem stands for the freedoms that people fought for, including the right to free speech. You don’t know what the national anthem means if you think people should be punished for protesting police brutality. Patriotism means trying to get the country to live up to its ideals, not violating those ideals by trying to shut people up for expressing ideas that some people don’t want to hear.”

Also, Sessions delivered his lecture while his Department of Justice is prosecuting a woman who laughed at his confirmation hearing.

No joke.

When Sen. Richard C. Shelby, R-Ala., said that Sessions’ record of “treating all Americans equally under the law is clear and well-documented,” activist Desiree A. Fairooz laughed. Her laughter lasted seconds and Shelby continued speaking. But Fairooz was physically removed from the hearing and arrested. In July, a judge threw out her conviction, ordering a new trial. And now the Department of Justice plans to retry her.

“That could not be more violative of First Amendment free speech protections,” Goldstein said. “It shows his thin skin to allow the prosecution. And it makes me especially skeptical of anything he says about free speech. Sessions supports free speech for people he agrees with.”

But the First Amendment doesn’t just protect freedom for the speech we agree with — it protects freedom for “the thought that we hate,” as U.S. Supreme Court Justice Oliver Wendell Holmes Jr. said in a 1929 dissent.

Some have made clear that they hate seeing football players taking a knee during the national anthem to draw attention to racism and police brutality. Others have made clear that they hate seeing neo-Nazis, Ku Klux Klan members and white nationalists carrying tiki torches in Charlottesville, Va.

But the First Amendment protects both forms of expression against government interference. “Free speech means not just that we get to say what we want to say but that others get to say things we might hate to hear,” Goldstein said.

That’s a basic lesson. But it’s a course many high-ranking public officials and students at many high-ranking colleges seem to have skipped — or wish to apply only to their ideological opponents.

The Brookings Institution just released a survey of 1,500 current undergraduate students at U.S. four-year colleges and universities. It found that 44 percent of students think the First Amendment does not protect “hate speech,” and students across the political spectrum had that fundamental misunderstanding.

The most alarming finding was that 19 percent of students say it would be acceptable for a student group to use violence if a controversial speaker it opposed came to campus. Male students are far more likely to reach that dangerous conclusion: 30 percent of male students agree such violence is acceptable, compared to 10 percent of female students.

Such thinking might explain why we see violence at well-regarded schools such as Middlebury College, where violent protesters shut down a talk by a controversial conservative social scientist and injured a Middlebury professor who was with him.

Such violence deserves unequivocal condemnation. The best answer to hate speech is great speech. If you physically attack someone to “stop the hate,” you’ve lost your way.

At a time when the public discourse seems to grow more coarse and societal rifts seem to widen with each passing day, we need leaders on campuses and in capitols committed to civil discourse. At a time like this, we need a president who tries to bring a divided nation together.

Instead, we have a president urging NFL owners to fire protesting players, saying, “Get that son of a bitch off the field right now.” We have a president who called major news organizations “the enemy of the American people” and talked about changing the law to make it easier to sue them. We have a president who, when a protester interrupted a campaign rally, said, “Get him out. Try not to hurt him. If you do, I’ll defend you in court. Don’t worry about it.

We, the people, are going to have to do better than our president.

We can begin with basic civics.

The findings in the University of Pennsylvania and Brookings Institution surveys result from a lack of investment in civic education, said Tom Kerr-Vanderslice, Rhode Island executive director for Generation Citizen, a nonprofit that gives high school and middle school students real-world experience in identifying issues, marshaling support and pressing for action.

“When people lack understanding of how our democratic form of government functions and is sustained, they also disengage,” he said. “This constitutional and civic ignorance corresponds to the incredibly low voting rates among 18-to-30 year olds and the general lack of motivation and trust in democratic institutions. The U.S. has ignored civics education for decades, leading most schools to abandon the subject, so we should not be surprised that many young people lack civic knowledge or motivation.”

We can begin with the First Amendment.

“We clearly have work to do,” said Justin Silverman, executive director of the New England First Amendment Coalition. “Education is needed across the board, whether on college campuses or in the White House. The First Amendment asks us to be consistent — to protect those thoughts that we are in favor of, as well as those ideas that we find offensive.”

Edward Fitzpatrick is director of media and public relations at Roger Williams University and a member of NEFAC’s Board of Directors. This post originally appeared on the university’s First Amendment blog.

Above photo provided by Flickr user Kyle Dickson and used with cropping under a CC 2.0 license


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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