October 22, 2003

After his session at Poynter’s Leadership Academy, we conducted a phone interview with Ken Paulson, senior vice president for the Freedom Forum’s First Amendment Center. Below is an edited transcript of the interview.


Skip to a topic:
 · What are some misperceptions about the First Amendment?
 · Is the Amendment in danger?
 · Are private entities bound by the Amendment?
 · Is the spirit of free speech still alive?
 · How has the Amendment evolved?
 · How will it evolve in the future?
 · What does Paulson think of Alabama’s Ten Commandments flap?
 · What about petition and assembly?
 · Is telemarketing protected speech?
 · Would you change the First Amendment?
 · How do journalists help people understand the value of the Amendment?
 · Where has the media failed the Amendment?
 · How can daily journalists uphold the tenets of the First Amendment?


Q. In your session at the Poynter Institute, when you asked how many of the journalists got all five freedoms of the First Amendment, I counted one hand. What do you think that’s a symptom of?


Ken Paulson: I think there’s a tendency for America’s journalists to equate the First Amendment with freedom of the press, and not give a thought to the other core freedoms contained in those 45 words. It’s not unusual to have that conversation with an audience of 100 or more journalists and have only one say they’re able to tell you all the freedoms. In that respect, they’re very much like the American public. In our annual survey, we find, depending upon the year, that one or two Americans in 500 typically know the full five freedoms.


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What would you say are the public and media misperceptions about the First Amendment?


I think the greatest misperception about the First Amendment is that it is primarily a privilege accorded to the news media, when in fact, it’s the cornerstone of our democracy. As you know, from our research, a third of Americans think there’s too much freedom in the First Amendment. That tells us that they’ve forgotten that the First Amendment was in fact designed to protect them from abuses of government. It wasn’t designed as a boost to America’s news media. It was designed as a safeguard against tyranny.


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Would you say the First Amendment is in danger?


The First Amendment is always vulnerable. It has been vulnerable since the birth of this country, and its first major test was the Alien and Sedition Act during the Adams administration. We failed that test, by the way. In other words, when the ink was fresh on the First Amendment, government was already tampering with it. The reason the First Amendment is so vulnerable is because it was designed to protect the views and the faiths of the minority, in a country in which most decisions reflect the will of the majority. People get those concepts confused and you hear a lot of people saying that if the majority of Americans believe there should be government-sponsored school prayer, then the majority should rule. Quite the contrary. The First Amendment says you have to leave space for the minority, and it’s the one example in American society where the majority cannot rule.


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I see a lot of people especially trying to apply the First Amendment to private organizations and private corporations. What do you think about that?


That’s also a common misconception. The First Amendment is clear. It says “Congress shall make no law.” Over time, the courts have interpreted Congress to mean any governmental body. And yet, many people complain that their First Amendment rights are being trampled if the newspaper won’t publish a letter to the editor that they’ve written or if their employer doesn’t allow them to post their thoughts on a bulletin board. It’s just one more example of how little Americans know about the First Amendment. How it works, and how important it is.


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Would you think, though, that the First Amendment codifies some sort of basic American principles that people do feel should be applied more generally?


I think there is a spirit of free speech in America, and that spirit helped inspire the birth of this nation. It is that spirit that was codified in the First Amendment and designed to head off abuse by the single most powerful entity, our government. So, in a nation founded on freedom, we all benefit when everyone feels free to speak their opinions and practice their beliefs. But there’s no way to enforce that when those who would limit free expression are private citizens or consumers. There’s no way. You simply can’t take that step.


I think it’s an interesting philosophical question about whether people who disagree strongly with someone else’s speech should try to organize boycotts. We certainly saw that with the Dixie Chicks and we’re seeing some of that with Rush Limbaugh. Does that benefit American society, if somebody is concerned about the economic consequences of political speech? Are we less free if people are afraid to speak up? It’s fine, when someone says something stupid or insensitive, to speak out. Our tradition in this country has been to denounce offensive or stupid speech. I do wonder whether it’s in our best interest as a nation to try to punish offensive or stupid speech.


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When you mention the spirit of free speech that has sparked this nation, do you think that that spirit is still alive in as-great numbers?


I think the spirit of free expression worldwide has never been stronger. There have never been so many people on this planet so willing to share their viewpoints. You need only look at what’s going on in China today. This is a nation that historically has been repressed, and the Internet business there is booming. And while there are government attempts to limit the messages on the Internet, there’s a lot of information, a lot of opinions, bursting through that wall. So that’s kind of the short answer to your question.


Yet I understand the sense that some of that free expression has been shackled. Throughout our nation’s history, whenever we face a period of crisis, there is a temptation by some to limit the free expression of others. Our annual survey on the First Amendment this year asked whether people should be permitted to protest a war during a period of active combat. And more than a third of Americans said no. Of course, that raises the question, “When is the appropriate time to protest a war? After it’s over?” But that is cyclical, and we see great pressures on civil rights and individual rights at times when our country is worried about its fate. A classic example, and I mentioned this actually during my remarks at Poynter, a classic example was Abraham Lincoln. Clearly one of our greatest presidents. But also the man who suspended the writ of habeas corpus, and whose generals marched into newspaper offices when they were offended by the content. You look at this nation’s experiences during the Cold War and the rise of McCarthyism. Again, great internal pressures inevitably lead to heat on free expression. So I think we’re in a period like that now, and people have a lot of strong opinions about our presence in Iraq, both pro and con. But I think some people watch their words, because they don’t want to be accused of being either unpatriotic or blindly patriotic.


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Going in a slightly different direction, the phrase “Congress shall make no law” is rarely interpreted to actually mean that. We actually accept a host of legislative restrictions on our First Amendment freedoms, and the Amendment continues to be shaped by legislative and judicial interpretation every day. So do you think the First Amendment has evolved toward or away from its original intent?


Going back to your original point, you know, it still means “Congress shall make no law.” And while there are sometimes pieces of legislation that have an impact on the First Amendment, courts continue to be very protective of the principle that any government action that limits freedom of speech faces the strongest constitutional scrutiny. A good example of that is the recent Do Not Call debate. The Do Not Call Registry. Here’s a government system designed to prevent people from calling homes and selling products. And Congress passed that law. Yet a federal judge quickly turned that around and said this inhibits free speech. That’s on appeal, and we’re still not clear where it’s going, but it’s certainly a reminder that courts are vigilant.


You hear a lot of people, when you raise First Amendment objections, say, “Oh that’s silly. There have to be some restrictions. After all,” they say, “you can’t yell ‘fire’ in a crowded theater.” And that may be one of the biggest misconceptions of all. That reference to “you can’t yell fire in a crowded theater” has nothing to do with freedom of speech. If you walked into a movie theater tomorrow and screamed at the top of your lungs, “God save the First Amendment!” in the middle of a major motion picture, you are going to be escorted out. When you punish for yelling “fire!” in a crowded theater, you’re punishing them for their action and not their speech, and yet that is used so often as an example of the limits of speech …


Has the First Amendment moved closer or farther from its original intent? I believe the courts have done an extraordinary job of adapting the spirit of the First Amendment and the vision of the Founding Fathers to apply to changing times. You know, there’s no way the Founding Fathers would have foreseen the Internet. Yet courts have correctly concluded that Thomas Jefferson and James Madison would have seen that as precisely the kind of content that needs to be protected. In the original First Amendment, protection for free speech didn’t extend to the states. Yet, our commitment to free speech in this country would be a mockery if the federal government couldn’t control your speech, but Alabama could. Courts have correctly expanded the umbrella of the First Amendment through the Fourteenth Amendment. You know, it’s no easy task to apply 213-year-old principles in the digital age, but I think courts by and large have done it well, and have done it consistent with the Founding Fathers’ wishes.


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How do you see our perception of the First Amendment evolving in the future?


I think one of the biggest challenges for freedom of the press is the dramatic growth in constitutional protection for privacy. Americans increasingly value privacy and closed records, while journalists, by profession, tilt in the direction of openness and access. I think that will be a major battleground. I also think that digital issues, digital distribution of content will lead to all kinds of new challenges involving copyright and fair use, which is a major element of the First Amendment. Anyway, those are the two trends I sort of perceive in the not-too-distant future.


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All right. How about the freedom of religion aspects of it? First of all, what was your perspective on the recent developments involving Chief Justice of Alabama Roy Moore?


Well, this is a very complicated issue. And you have scholars on both sides. There seems to be very little question that the first generation of Americans saw merit in keeping government out of religion, and religion out of government, that led to the … freedom of religion guarantee in the First Amendment, and to Thomas Jefferson’s enunciation of the separation of church and state. As with free speech, the challenge is to apply that principle in changing times. I think there is a tremendous misperception about the exercise of religion in public schools. For example … in applying the religious freedom clause, courts have, in fact, expanded religious liberty for students in every public school in this country. You can have Bible study classes after school. Students can witness to each other during the lunch (hour), and they can carry the Bible around along with the rest of their school books.


But I think this misperception about what has actually happened has fueled the fire, and made incidents like that in Alabama more symbolic than it needs to be. For me, the test is, did a government employee engage in an official act that advanced a spiritual belief. I don’t think there’s any question that the Chief Justice of the Supreme Court rolling a giant Ten Commandments tablet into a place where public justice is to be administered is a violation of the separation of church and state. That’s not a close call.


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All right. What about the freedoms that we tend to forget, namely petition and assembly. What do you think is the role of these in today’s democracy?


They are the action clauses of the First Amendment. And when you think about petition and assembly, the mental picture is of people marching down Pennsylvania Avenue and asking for reform of the laws. And when we talk about assembly, we picture Martin Luther King, Jr. by the Reflecting Pool. Petition and assembly together have been a one-two punch, dramatically changing America’s laws, values, and mores. Women would never have gotten the vote without petition and assembly. The Civil Rights Movement would not have succeeded without petition and assembly. The Vietnam War would have dragged on longer if not for petition and assembly. The first three freedoms allow us to express ourselves, but the latter two give us a chance to do something about our views. So they are underestimated and invaluable.


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You mentioned that we have the courts looking out for our freedom of speech, do you think we have anyone watching out for our freedoms of petition and assembly today?


Oh sure, yeah, absolutely. We have a lot of court decisions that are supportive of the right to assemble, and there have been a lot of interesting battles over whether government can limit the location of a protest. We do find disquieting a tendency for governments and some courts to uphold protest re-zones, buffer zones in the name of public safety. We saw this in Seattle and we’ve seen that to some extent in Washington. Where the government says, “You know, this is such a hotly debated issue, we need to make sure people are farther away from the conference center so there are no chances of violence.” That’s a disturbing trend, because assembly becomes meaningless if the people you’re protesting against never see you. In terms of petition, you know, the most frequent users of petition today are America’s lobbyists. They’re well funded, politically connected, and they’re protecting that right just fine.


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Is telemarketing a form of unpopular speech? Is this protected?


Sure, I mean, when we’re talking about unpopular speech, we sort of picture the KKK, but it really applies to anybody who says anything that someone else would rather not hear. Now, the question is not whether you can decline to hear the message, the question is whether government has the power to intervene. And there’s been a lot of verbal abuse of the federal judges who struck down the Do Not Call registry, but it’s a fascinating decision if you take the time to read it.


You know, over the past 30 years, courts have concluded that commercial speech has significant First Amendment protection, almost as much protection as so-called political speech. In newspaper terms, political speech is the front page and commercial speech is, of course, advertising. The courts have reasoned that information about what things cost (is) of tremendous benefit to consumers in living their daily lives and that government cannot lightly intervene and block that. So the test that the court has to apply is whether, in restricting commercial speech … there’s a rational reason for the law, and whether the government is actually accomplishing what it sets out to do, and whether it’s doing it in a way that places the fewest possible limits on free speech.


In applying that test, Judge Nottingham … concluded that this registry would really only end up blocking about half of the unwanted calls to people’s homes, so it didn’t really address what the law was intended to. And (he) cited an earlier opinion that says that in regulating speech, Congress is not allowed to issue regulations based on content of that speech. It’s a controversial decision, but most of the First Amendment scholars feel that Nottingham was on firm ground. He wasn’t endorsing telemarketing, he was simply saying that government didn’t follow the rules when they wrote this regulation.


And you could fix the telemarketing challenge in this country constitutionally by giving Americans the right to go to a website and check off a menu of options. If we told Americans that they could ban commercial speech, charitable speech, and political calls, and allowed them to select those on a menu, the law would be perfectly constitutional. The reason this law was not constitutional is that Congress decided the only kind of speech we could block was commercial speech, and that meant it was discriminating against a certain kind of speech, which is unconstitutional.


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Might you think, though, that the Do-Not-Call law could be interpreted as another example of the government legislating an action, in this case the action of calling up a person’s home?


Well then, if it had nothing to do with the content of the call, then you would have to say, “You can make no calls to a home. Sign up for this registry and no one is allowed to call this home.” And that, by the way, would probably be constitutional. If it were just action, the action is the call that makes the ring go in your home. So that would be the action. And if that’s what you’re trying to do, then that’s what the law would have to address. Then you’d have to ban all calls that make the phone ring in your house, and that would be constitutional. But once you say, when you pick up that phone, and the message on the other end is, “Would you like to buy aluminum siding?” then it can be censored, then government is involved in policing speech, and that’s where it’s not allowed to go. But as I said, if the government has the will to do so, they can fix this, and then we can have a Do-Not-Call list. The judge’s decision is controversial, but it’s not unfounded.


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So, I’ve given you a magic wand, and full social, legislative, and judicial license to alter, any way you want to, the wording or content of the First Amendment, in light of today’s society. Would you do it?


Not at all. I wouldn’t change a word. I might like to offer a contemporary translation for new and upcoming generations, but it is the most remarkable 45 words in the history of America, and has serviced us extraordinarily well.


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How do we, as journalists, help people to understand the worth of the First Amendment?


My pet peeve with America’s news media is that they’re tremendously vigilant about freedom of the press, but forget that the Founding Fathers gave them freedom of the press so they could look out for the underdog and prevent the violation of our other constitutional rights … That means truly great editorial pages will take a stand protecting student speech. That means truly great newspapers will reflect the full range of faiths in America, and help readers and viewers to understand the importance of protecting a wide range of beliefs. It means providing perspective on controversial First Amendment issues, like the striking down of the Pledge of Allegiance.


Too often, the press focuses on the controversy, and not on history. Would people be as angry about a federal court striking down the Pledge of Allegiance as a violation of church and state if they knew that that clause, that the reference to “under God” has only been around for 50 years, and was expressly introduced by the Eisenhower administration at the height of the Red Scare. This was not a document written by James Madison and Betsy Ross at the breakfast table. That’s the kind of background that is so often missing in discussions of the First Amendment, and America’s free press needs to do a better job of conveying the full story.


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Where has the media failed in its allegiance to the First Amendment?


Well, it’s exactly what I said. It’s a tendency to focus on the heat of First Amendment controversies and not provide the light. I get a lot of phone calls from America’s newspapers and broadcast stations. And I’m always grateful for that, because I know that the First Amendment is a component of those news stories. But too often, stories about free expression in America end up being “he said” and “she said,” without any context.


One quick example: a school district in Tennessee banned so-called “hip-hop clothing,” clothing designed by hip-hop performers. What they did was go on the Internet and read about the designer and fundamentally decide whether the designer was a positive influence on young people or a negative one. Now, that news story had quotes from the school, had quotes from kids, had quotes from parents. There wasn’t a word in there about the regulation being in clear violation of the First Amendment. It’s in those instances where I think the press has been less than vigilant. Our industry, and I feel like a part of it still, tends to look for heat, and not for light, in matters of First Amendment controversies.


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Could you recommend any way that daily journalists reporting stories on deadline day after day can strive to uphold the tenets of the First Amendment?


Bless you for asking. You know, here’s the catch-22. If you don’t know what the five freedoms are, you tend not to think about protecting the First Amendment. So if I suddenly became owner of a major media corporation, I would have the First Amendment encased on every desk, so it was visible and a reminder. I would urge both city desks and reporters to make use of available First Amendment resources, which would include our website, FirstAmendmentCenter.org. It is designed first and foremost for use by journalists reporting these complex issues. And because we’re all former journalists, we understand the need to get back to people in 20 minutes because they’re on deadline. I think that’s a big part of it.


But I have to tell you the single best way for America’s journalists to stand up for the First Amendment is to do their jobs the way the Founding Fathers intended. To report fully, and to report fairly, and to go after the bad guys with zeal and documentation. We need to remind all Americans of the importance of a free press, and we do that when we serve as watchdogs on government abuse and power. When Americans begin to think of us as profit-making centers and vehicles for infotainment, they’re not receptive to arguments about protecting free press. You know, the story of a free press is the story of the Pentagon Papers. The story of a free press in America is the story of the Civil Rights Movement. When we do our jobs well, and diligently, we earn the respect of our readers and viewers, and we earn respect for the First Amendment.


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