Thomas Jefferson once remarked that given a choice between government without newspapers and newspapers without government, he "would not hesitate to prefer the latter."

Thomas Jefferson’s 266th birthday came and went April 13 without much notice by Americans.

At Monticello, Mr. Jefferson’s historic home near Charlottesville, Va., the U.S. Army’s Old Guard Fife and Drum Corps provided music, and wreaths were presented to honor the anniversary of Jefferson’s birth. The relatively modest pomp and ceremony were duly noted in the press.

Jefferson famously once remarked that given a choice between government without newspapers and newspapers without government, he “would not hesitate to prefer the latter.”

But in recent years, it has become more likely that the former might just come about for reasons other than preference.

A worsening economy and the financial and social inroads of all kinds of new media – from “24/7″ cable television to the omnipresent Internet to Twitter and its ilk – have battered the balance sheets, decimated some newsrooms and drawn away readers.

Defenders of journalism as we have known it quite rightly point out that print and also broadcast television still command large audiences and those outlets remain the major sources of news and information for most Americans, despite a growing charge to the Web led by younger readers and viewers.

Many also fear the switch from paper to computer screen will deprive us of the benefit of having the free press serve its fundamental role as a “watchdog” on government.

But not all feel that way.

Critics and pundits are challenging the idea of newspapers as democracy’s defender, saying voters can get information elsewhere and that citizens can track legislative acts and evaluate government policies via other sources.

A columnist for Editor & Publisher, the industry’s own trade magazine, recently (and correctly) slammed the press-as-watchdogs who – as the headline over his column put it – “failed to bark on economy.”

He and others also have noted the news media’s collective failure to expose bogus government claims regarding weapons of mass destruction in Iraq.

But we also need to acknowledge there were a number of examples in recent months of where newspaper journalists were watching over and looking out for the public good. The latest Associated Press Managing Editors newsletter reports:

• In Fort Wayne, Ind., The Journal Gazette detailed the ease by which mortgage fraud and false filings with a county clerk can be committed even in today’s more-regulated marketplace.

• The Dominion Post, in Morgantown, W.Va., continued to investigate and question the operations of a board that governs the city’s publicly funded senior center.

• The Commercial Appeal of Memphis, Tenn., reported on contributions to the mayor’s annual Christmas party that wound up in the mayor’s pocket.

• In Los Angeles, the Daily News reported on sizable tax bills being sent to home-based businesses as a result of a faulty assumption.

• The Spokesman-Review in Washington state found in a public-records search that prosecutors declined to charge a former sheriff’s deputy, in spite of having evidence of a crime, simply because the man was a veteran officer.

The APME list goes on, with newspapers from Dallas to Denver to Miami to Washington, D.C., exposing waste in government and dangerous trends in crime and health care.

And then there are the hundreds, if not thousands, of government meetings, decrees, bills, plans and pronouncements held up to scrutiny each week in the nation’s dailies and weeklies, and on local and network TV news programs.

Missing the “Big Story” on WMDs or on the economic collapse were huge mistakes that deserve examination and criticism. And certainly the newspapers of Jefferson’s era were partisan, political journals that didn’t do much in terms of holding government accountable in a modern sense.

But Jefferson preferred “the latter” out of a belief that a free press was needed to provide a balance and a forum for citizens to get information and debate issues.

That even in very challenging times, the newspapers of our era have continued – and expanded – on such a Jeffersonian role is worth celebrating on his birthday.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Obama: Good intentions produce unintended consequences.

There’s an old saying that “the road to hell is paved with good intentions.”

Add to that – courtesy of a March 20 Obama administration directive – ” . . . and marked with the occasional constitutional pothole.”

The White House directive attempts to limit the influence lobbyists have on decisions about the distribution of economic stimulus billions. The goal is to prevent improper influence on officials in charge of doling out the unprecedented funding for federal, state and local projects.

That’s the “good intentions” part: prevent waste, fraud and abuse. And as a theory it’s hard to argue with. But here comes the pothole, courtesy of the First Amendment.

In pursuit of fair and open decisions, President Barack Obama has gone beyond setting rules and guidelines for federal officials. The administration is telling registered lobbyists that they may not speak with those officials about any specific project or proposal.

So, you may ask, what’s wrong with that? Well, how about disregard for the right to “petition the Government for a redress of grievances”?

You’re forgiven if that particular part of the 45 words of the First Amendment doesn’t immediately come to mind – no more than 3 percent of Americans have been able to name the right of petition in the annual State of the First Amendment survey since it began in 1997.

But that doesn’t make petition any less effective or guaranteed than the other four freedoms in the amendment: religion, speech, press and assembly. And lest we forget, “petition” describes the act of asking the government to address a problem, of suggesting solutions or of seeking assistance from government – in short, lobbying.

The Obama memo has laudable goals: in its words, preventing the stimulus funds from being spent “on the basis of factors other than the merits” or as a result of “improper influence or pressure.” But as so often must be done, good intentions that turn into action by government need to be weighed against not-so-incidental effects in other areas.

Consider campaign contribution reform, where our right to express support for candidates and speak out on issues is balanced against the need for fair elections, where money isn’t the overwhelming influence.

Consider the inherent tension between fair-trial and free-press considerations, where the needs of the legal system for impartiality and objectivity may collide with the public’s right to know and, in a criminal trial, a defendant’s need for an open process to protect against a return to Star Chamber tactics – detention-and-conviction in secrecy.

Adding to frustration over the administration’s lobbying directive is a not-so-small loophole: The rules apply only to registered lobbyists – that is, to those who spend more than 20 percent of their time working congressional hallways.

It’s certainly not a stretch of the mind to imagine a realignment of time spent between legislative and bureaucratic visits, in order to opt out of registration. Suddenly we have less accountability and tracking of who is speaking to whom, not more.

There is a solution that not only avoids this constitutional “pothole” but resonates well with First Amendment freedoms – and it’s already contained within the Obama order: transparency.

Officials already are required by the directive, within a relatively short time, to report written or general contact with lobbyists in which stimulus funds are discussed. Those reports are to be posted on the stimulus-focused Web site, Recovery.gov.

Drop the restrictions on what citizens may say via a hired representative, and encourage ordinary citizens to speak out themselves.

Stick to regulating the actions of government employees, certainly within presidential powers. Provide both the opportunity and reality of more information to citizens and taxpayers about any direct contact.

We might just encourage more discussion and debate about solutions to our economic mess.

In the era of the Internet, all of that is possible – and instantly accessible – and it just might have a positive side-effect of its own: a little extra stimulus to a First Amendment freedom that, as a nation, we least often can recall.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Prof’s crusade to silence risqué column in college newspaper is misguided

Art-museum displays - such as those by avant-garde photographer Robert Mapplethorpe in the 1980s - periodically leave officials and others gasping in indignation.

W hat is it about sex? Ah, let me rephrase that now that I have your interest: What is it about sex and the First Amendment?

From censors who attack music – often under misimpressions about sexual content – to those who trumpet the virtues of “smaller, less-intrusive government” except when calling on it to enforce some personal idea of virtue, it’s a subject that appeals, confounds, incites and occasionally seems to mesmerize many of us.

Our nation has a long – some would say shameful – history of anxious individuals and energetic groups ever ready to safeguard public morals by closing down public discourse over matters sexual. Begin with the Puritans and trace the path right through a variety of leagues of morality or decency.

City commissions and postal chiefs have parsed with a close eye what was sold or mailed within their purview. Art-museum displays – think avant-garde photographer Robert Mapplethorpe in the 1980s – periodically leave officials and others gasping in indignation. Rap and hip-hop are only the latest targets in the censors’ sights.

The issue has been among the toughest for lawmakers and judges to deal with. U.S. Supreme Court Justice Potter Stewart famously remarked in the 1964 obscenity case Jacobellis v. Ohio that although he didn’t have a proper legal definition of even hard-core pornography, “I know it when I see it.”

That very personal approach to considering the topic may well be the best filter through which to view a debate over a column about sexual matters in the University of Montana student newspaper. The column and its writer are under attack by a law professor at that school.

The Associated Press reported recently that Professor Kristen Juras wanted the Montana Kaimin to drop a weekly column: “Bess Sex,” by senior Bess Davis. The flap isn’t the first over collegiate newspapers that offer such advice, often using terms that are very specific – and sometimes very personal.

Davis’ column has discussed topics such as student sexual activity and “cheap and kinky” gifts for Valentine’s Day. By some standards – clearly not Juras’ – the column’s topics and language are fairly tame: In recent weeks, there was a nonprurient discussion of Facebook etiquette and another offering advice on working out “to look better naked.”

So far, the newspaper’s student editor and the university administration stand with Davis and her column as a matter of protected free expression. Juras counters by saying the column is unprofessional, denigrates the work of Montana’s school of journalism, and should offer information about sexually transmitted diseases and other health matters – not advice on how to cut spending in tough times by staying home and finding other, shall we say “nonrevenue,” ways to entertain oneself.

A smirk and a snicker would be tempting responses to the entire matter, if Juras weren’t going further – raising not just issues of image and appropriateness, but of constitutional concern.

“I don’t think journalists can stand behind freedom of speech every time someone objects to one of their columns,” Juras is quoted as saying.

Isn’t that First Amendment freedom exactly what every one of us can count on to shield ourselves from the self-appointed, the popularly elected or even the lifetime-tenured who would substitute their decisions on free expression for yours or mine?

To shut down “Bess Sex” because it offends or embarrasses – or even if it fails to provide medically grounded advice – would be just plain wrong.

Those who don’t like Davis’ column can exercise their free-expression rights by turning the page of the paper or by declining to click online on any similar offering.

Silencing student journalists in the name of “good taste,” a call for higher professional standards or as a means of promoting a positive university image is just plain old censorship masquerading behind some other fancy names.

And I think we know that, too, when we see it.

Gene Policinski is executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Political attacks by Rush Limbaugh and other conservative icons have driven some Democrats to talk about resurrecting the Fairness Doctrine.

We keep finding new ways to argue with ourselves over old ideas about what we can or cannot say to each other – in other words, we’re constantly redefining the boundaries of free speech.

Even as you read this:

• The “buzz” is buzzing louder about reviving the so-called “Fairness Doctrine,” discarded in 1987 by the Federal Communications Commission as a tool to regulate broadcasters.

• A federal court in Boston puts an unexpected dent into the long-held legal doctrine that truth is a solid defense in a libel case.

The headline-grabber for this “everything old is new again” free-speech roundup is the possibility that Congress – read the Democratic majority, at least – may try to bring back the “Fairness Doctrine,” or perhaps press the FCC to bring it back to life.

In theory, the Fairness Doctrine was supposed to make certain that at least two sides of any public-policy debate were available on the publicly owned airwaves.

By the mid-1980s, the FCC and others found that the policy actually was chilling public debate, not promoting it.

To avoid costly legal entanglements, broadcasters were finding it easier just to avoid topics that might provoke controversy – hardly making radio and TV the “marketplace of ideas” so necessary to a vital democracy.

Also found lacking was a basic premise rooted in mid-20th century reality. Widespread cable television use voided the once-held argument that a limited number of available broadcast TV channels required that government needed to step in to ensure fair use of public airwaves.

Opponents of any legislative or administrative revival effort argue that the Internet alone voids both justifications: There are huge audiences for blogs, chat groups and Web sites espousing myriad views available to anyone with access to a personal or publicly provided computer.

Moreover, this current blip of interest carries a heavy tinge of partisanship – an indelible irony for something with “fairness” in its name. Critics of returning to the old policy claim the impetus is more the political and business success of conservative broadcasters as opposed to their liberal counterparts.

Advocates of the doctrine are pressing for at least congressional hearings on the matter – at which presumably all sides will get a chance to speak.

Though Congress certainly has its own mind on what to consider – and what to approve – the likelihood of eventually reviving the doctrine was dealt a blow when the White House made clear last month that it opposed reinstatement.

In the second rerun incident, a three-judge panel in the 1st U.S. Circuit Court of Appeals recently upended a long-held rule of law that “truth is an absolute defense” when someone is sued for libel. The opinion has surprised some experts on libel – and, if ultimately upheld, would uproot basic legal tenets of free speech and the law.

The judges reviewed Noonan v. Staples, a case involving an employee of a business-supply firm who sued the company after an executive sent an e-mail to about 1,500 employees detailing why the employee had been fired for what the company said was falsifying expense reports.

The court’s opinion said that even if the factual account sent to other workers were true, and apparently it was, the employee involved might be able to recover damages if the e-mail was sent maliciously – in this case, to humiliate the former employee.

The judges sent the case back to a lower court in Massachusetts for reconsideration.

If the court’s decision ever were to apply widely, the result could be similar to what opponents say will happen after revival of the Fairness Doctrine: A paralysis of public debate in which legal challenges ask courts to examine and determine possible motives of speakers, bloggers, filmmakers, journalists and others, rather than to review the truth of the facts.

These two examples aren’t the only places where we continue to debate and define protected speech.

There are current disputes over salacious postings on social networking sites, Internet locations that post product reviews and online sites that rate business and personal services.

The right of public employees to comment on their jobs, and the degree of protection (if any) for whistleblowers on waste, fraud or corruption in government and in private business are also being contested.

It’s a compliment of sorts to the vitality of free speech that we keep talking about issues like the Fairness Doctrine and libel law.

We need to keep at least one essential idea foremost in all those conversations: More speech is always better than less.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Independence High School senior Kelly Sebetka, 17, hands out signs in Independence, Iowa on Jan. 28 during a protest against proposed budged cuts that could result some teachers losing their jobs. The 8th U.S. Circuit Court of Appeals recently weighed in with a common-sense decision supporting the rights of students to object to a school policy.

School administrators can gain from a court decision some much-needed guidance on how to react to student voices they dislike.

The good news for students – and for all Americans – is that this legal lesson supports more speech instead of placing more limits on student expression.

A landmark 1969 U.S. Supreme Court decision – Tinker v. Des Moines Independent Community School District, involving students and Vietnam War protest armbands – put forth the idea that young citizens don’t automatically surrender their First Amendment rights at the schoolhouse door.

But since then, courts at various levels have set about defining when and how officials legally could shut down student expression. A number of those legal limits have been driven by security, education or drug-related concerns.

No principal, no superintendent – and no judge, for that matter – wants to be the person whose inattention, inactivity or decision results in another Columbine-style massacre.

Judges have recognized that teachers cannot teach and students cannot learn amid chaos or fear. And the dangers of drug use are painfully obvious.

Still, in various cases in just the past five years, students have been silenced because the message was politically incorrect or offended administrator sensibilities or community views.

After voicing or writing sharp political views about the war in Iraq or illegal immigrants or gay rights or after penning provocative illustrations involving Old Glory, students have been told to sit down, shut up and wait their turn as citizens until they leave school – or face suspension or worse.

Many disputes are settled out-of-court, more often than not with an apology to the student and reinstatement. But the 8th U.S. Circuit Court of Appeals recently weighed in with a common-sense decision supporting the rights of students to object to – of all things – a school policy.

A three-judge panel agreed that school officials in Watson Chapel, Ark., violated the constitutional rights of three students in 2006 who were disciplined for wearing black armbands or wristbands to school to protest a new policy enforcing school uniforms, and for handing out a flier objecting to the policy.

The administrators agreed in court that the student protest did not disrupt classes or order at the school.

The 8th Circuit panel said that despite restrictive decisions since it was handed down, including the 2007 Supreme Court decision in the so-called “Bong Hits for Jesus” case, “Tinker remains good law.”

Students in both Tinker and the Watson Chapel case were exercising a right of protest against a government policy – something officials in every school ought to celebrate by example, not denigrate.

Advocates for student expression have feared that school officials and lower courts would expand legal controls into other areas of student free expression based on the ruling in that “Bong Hits” case. In that case – officially called Morse v. Frederick – the high court said officials may clamp down on student speech regarded as encouraging drug use.

School officials in Arkansas even argued that the subject matter was too mundane to get constitutional protection. The decision in the Watson Chapel case, however, squarely affirms that non-disruptive student speech, be it on issues of international interest or on local policies such as school uniforms, is protected by the First Amendment.

In an era in which educators struggle to motivate students to think critically, and to instill basic American values of good citizenship, arbitrarily denying basic rights to speak out, to write in protest, to assemble and to peaceably “seek redress” seems wrong-headed.

Students should learn about First Amendment freedoms in the classroom rather than the courtroom.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Westboro Baptist Church members at a funeral for a U.S. soldier killed in Iraq.

At first glance, the racy Web site JuicyCampus.com and a small, anti-gay group organized as the Westboro (Kan.) Baptist Church seem to have little in common.

JuicyCampus.com invites online postings from college students with the message that “this is the place to spill the juice about all the crazy stuff going on at your campus.”

It claims that “it’s totally anonymous – no registration, login, or e-mail verification required.” The result is an often-raucous mix of sexual, racial and social comments that some claim include defamatory or even dangerous remarks.

The Westboro group has gained notoriety for its in-person protests at military funerals while carrying signs with messages such as “God Hates Fags” and “God Hates America,” based on claims that America is being punished with the deaths of military personnel for accepting gay lifestyles in society.

What the two have in common is that both continue to test the limits of free speech and that authorities are working at creative ways to try to muffle or prosecute them.

The controversy over the campus-gossip site, which says it now gets posted comments from more than 500 campuses, has been building since its founding in 2007 by a former Duke University student.

Attorneys general in New Jersey and Connecticut have investigated JuicyCampus.com for possible consumer-law violations involving its promise to weed out threatening remarks. A Colgate University student was charged last year with aggravated harassment for posting what authorities considered a threat, however vague, to kill students.

Tennessee State University in mid-November became the first public college to block access from its campus computer network to JuicyCampus.com. Sidestepping questions of taste and propriety – and perhaps a First Amendment-based complaint – the Nashville school said it blocked access for safety and security reasons after a mother complained about a post arranging for students to beat her daughter.

JuicyCampus.com itself likely is protected by a 1996 federal law – Section 230 of the Communications Decency Act – shielding such Web sites from liability for what is posted on them, though those who post could face civil lawsuits for defamation brought by the targets of comments.

But the Westboro group – largely composed of the family of its founder, Fred Phelps – has faced both indirect and direct attempts to prevent their protests.

Passage of a flurry of state laws – most still untested in courts – that attempt to restrict when and where the group can march, followed by a Kansas court decision requiring it to pay state taxes on a truck it uses to travel to protest sites, has prompted the group to claim it is being singled out by government officials who don’t like its message or methods.

Shirley Phelps-Roper faces criminal charges in Nebraska stemming from a 2007 military funeral at which the prosecution says she allowed her 10-year-old son to stand on an American flag, and wore a flag as a skirt that dragged on the ground. She is charged with flag desecration, disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

There is a narrow legal line between protecting the safety, security and even the personal privacy and reputations of our fellow citizens, and muzzling the robust, unfettered and challenging debate and social commentary required by a democracy.

This is not to say that the often-salacious postings on JuicyCampus.com equate with the often-eloquent arguments raised in the civil rights movement, or that the Westboro group’s sidewalk shenanigans compare to the public-protest legacy of the women’s suffragists.

And there is understandable opposition – based, for some, in sympathy for bereaved families or outrage at racial or sexual slurs – to messages that belittle and attack, insult and defame. Still, nothing in the First Amendment requires protesters to be polite, signs to be soothing or messages to be mellow.

As we watch authorities enact or enforce restrictions on groups and words that we might prefer not to hear or see, we must insist that free speech essentially remain free, drawing our own careful line: the one between setting reasonable limits rooted in law and punishing speakers out of an emotional response.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

As Valentine’s Day approaches, let’s consider a rarely discussed First Amendment freedom – the right of petition – by recalling a centuries-old question posed by those Shakespearean lovers Romeo and Juliet: “What’s in a name?”

Ms. Capulet’s poignant question to Mr. Montague came as the threat of violence loomed over their star-crossed love affair.

By contrast, there’s no love lost in two contemporary and dramatic disputes over naming names, in Tennessee and California – but both disputes also involve concerns over potential retaliation and violence.

In Tennessee, Nashville voters rejected a proposed ordinance variously called “English Only” or “English First” that would have mandated local government to do business only in that language.

In California, voters approved “Proposition 8,” overturning a state Supreme Court ruling allowing gay marriage.

Supporters of the two proposals sought to keep confidential some or all of the names of donors to campaigns backing the measures. They cited potential dangers, including individuals’ being accosted at home and receiving telephoned death threats, as well as business boycotts and a possible “chilling effect” on supporters of like causes in the future.

In both instances, officials ultimately determined that the names would be made public, with the particularly bitter California fight reaching a federal courtroom.

In a ruling Jan. 29 on a request for a preliminary injunction to block release of the names, U.S. District Judge Morrison England Jr. said advocates failed to show a direct connection to violent reaction, and that “if ever there needs to be sunshine on a political issue, it’s with a ballot measure.”

The First Amendment – with regard to religious liberty, free press and speech, and the freedoms to assemble and to petition the government – protects us against government interference. But it does not shield us from the results of our actions, be they the adulation of approving admirers or the growls and scowls of angry dissenters.

The history of petition pre-dates even the Bard’s 16th century play, having roots in Magna Carta in 1215, which gave voice to nobles who would challenge the British crown.

Still, it’s likely that more people in the U.S. can recite some bit of Shakespeare’s work than name the right to “petition the government for a redress of grievances.”

In the latest State of the First Amendment survey by the First Amendment Center, just 3 percent could identify petition as part of the amendment – and that was the least-known freedom’s highest mark in the survey’s 11-year history.

Petition also provides a constitutional cloak for lobbying – hardly an activity that Americans want to see done in secrecy. But if any process in our democracy demands openness, it’s the process by which a group of citizens can circumvent elected officials and government bodies to take a legislative proposal directly to the rest of us.

Judge England touched on why disclosure is so important: Many campaign committees have vague names, obscuring their intent. The public has no way of knowing who is behind the campaigns, he said, unless they can see who is giving money.

As it happens, in both Proposition 8 and English Only, substantial support came from non-local contributors: In Nashville, of the $89,000 raised by backers of the proposal, $82,500 came from a Virginia-based group, Pro English. Much of the post-election debate in California has been about the role that out-of-state political and religious groups played in swaying Golden State voters.

As a 1982 U.S. Supreme Court decision – Brown v. Socialist Workers ’74 Campaign – provides, such names may be kept from the public only when there is an immediate and real threat of violence or retaliation. But that narrow exception should not apply to the mere concern about negative reaction or because of theoretical danger.

Funding and circulating petitions to place a proposition on a ballot, like speaking out on matters of public interest at town hall meetings or in public squares, are this nation’s glowing examples of grass-roots democracy in action.

Doing so while hiding under a cloak of secrecy diminishes the petition process and the glow.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

On his first day in office, President Obama signed a directive to make government records more open to the public, capping an election year in which the First Amendment was front and center – and also out-front and central.

On Inauguration Day, the amendment’s 45 words loomed large over the Pennsylvania Avenue presidential parade route for the first time, carved in Tennessee marble on a 74-foot high plaque on the front of the Newseum, visible to millions of inaugural visitors.

But all five freedoms in the First Amendment had their own moments in Obama’s journey to the Oval Office:

• Freedom of religion: The much-debated mix of church and state was involved from the start of the primary elections.

Then-candidate Obama faced rumors that questioned his Christian faith and declared him a “secret” Muslim.

Republican candidate Mitt Romney, a Mormon, felt compelled to make a public declaration that a Romney presidency would “serve no one religion, no one group, no one cause.”

And when former Ark. Gov. Mike Huckabee openly displayed his evangelical-Christian credentials in the early Iowa primary, he moved briefly to a leading position.

Just as the presidential campaign peaked in the autumn, 33 pastors in 20 states challenged Internal Revenue Service regulations that ban election politicking from the pulpit by religious groups with nonprofit status.

Religious controversy arose anew just recently when conservative Rev. Rick Warren was asked to deliver the inaugural invocation.

The criticism was muted somewhat by Obama’s asking Episcopal Bishop Gene Robinson, a vocal gay-rights leader, to offer a prayer at Sunday’s kick-off concert at the Lincoln Memorial.

And a few critics even attacked the tradition of concluding the presidential oath of office with the phrase, “So help me God.” But a lawsuit on the issue failed to gain legal traction in a federal courtroom.

• Freedom of speech: From televised debates and campaign attacks unfettered by government control, to party-pleasing declarations at political conventions, to protests outside George Bush’s ranch in Texas, Americans exercised their rights – and lung-power – with abandon.

But voicing individual and collective minds didn’t come without problems.

Periodically came news reports of individuals detained (and often later released) at rallies on vague “security concerns” – often for little more than wearing T-shirts, shouting slogans or carrying signs that seemed more impolite than threatening.

• Freedom of press: Journalists were criticized by many as favoring the eventual winner. Both Obama and Sen. John McCain endorsed a proposed federal “shield law” for journalists.

But the free-press headline this year likely belongs to the implosion of much of the nation’s traditional print press, beset by precipitate declines in profits, unprecedented staff cuts and loss of readers as Web-based competitors and bloggers saw a corresponding rise in reach and importance.

USA TODAY reported that for the first time, the major news portals on the Web, including Yahoo.com, CNN.com, MSNBC.com and AOL News, all streamed images of inaugural festivities to millions of users.

Obama’s campaign likely changed the nature of news reporting about presidential campaigns for years to come, combining a hugely successful blend of Internet fundraising with Web-based campaign “events” and an online team of supporters.

The effort circumvented conventional media in getting out Obama’s message and countering rumors and political attacks.

And at both political conventions, in Denver and St. Paul, journalists were swept up – some said “targeted” – along with protesters in pre-emptive police raids, only to see charges not filed or dropped when the conventions ended.

• Freedoms of assembly and petition: These freedoms – to assemble with like-minded people and to seek government change – took on a uniquely historic quality this year, beginning with early echoes of the civil rights movement and ending in the election of the first African-American president.

And the Obama campaign produced a new twist on petition: its “Citizen’s Briefing Book,” with more than 125,000 users submitting some 44,000 ideas and casting more than 1.4 million votes on issues they thought most important. The best-rated ideas will be delivered to the president.

Many issues beyond these First Amendment concerns arose in the 2009 election. But it was this amendment – unique to the United States – that guaranteed the nation could and will vigorously debate its concerns openly, without government control or penalty, in person, online or in print.

And that’s also worth parading down Pennsylvania Avenue to celebrate at least once every four years.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Should self-expression protections apply to the Internet?

So who gets to say, “You can’t say – or show – that,” and make it stick?

Well, the First Amendment provides that the government cannot easily control what we say or otherwise express in public, even when the speech is ill-tempered, rude or embarrassing to some.

But that protection – applied by courts and legislatures since 1791 – grew up on village greens and in town hall meetings, on street corners and printed pages, in conversations across the fence and debates across the nation.

The Internet poses important challenges to those traditional practices.

For example, there’s growing concern over the power of private companies, which aren’t bound by the First Amendment, to control free expression in cyberspace.

Is the Web so pervasive, so vital that those who operate it have taken on a kind of governmental status, private in ownership but public in impact? Are Internet providers quasi-public, like utility companies?

Two recent incidents involving free speech help explore the issue.

In the first, the South Dakota Supreme Court ruled Dec. 30 in favor of a man who cursed police officers on a public street.

The other involved a mother who posted a photo on Facebook – a privately owned social-networking site with some 140 million users worldwide – of herself nursing a child.

In the South Dakota case, the state’s high court drew a careful but necessary line between speech that you and I might well call rude and insulting but that is protected, and speech that constitutes “fighting words,” which don’t receive legal shelter.

In 2007, a man leaving a bar in Brookings, S.D., at 2 a.m. yelled a stream of profanities at a passing patrol car within earshot of more than 100 people. The officers arrested the man for disorderly conduct – specifically “making unreasonable noise.”

Though prosecutors later said the expletives posed a threat because they might have incited others to attack the police, no one did. And while the justices didn’t endorse the man’s behavior, a majority said the arrest was unjustified without actual violence.

Each side in the case had its say in court about what was said on that street – and South Dakotans can turn to the published court opinion to get an account of how and why the decision was reached.

Contrast that with this month’s Facebook flap over the nursing mom whose posted photo exposed more breast than some Facebook users wanted to see. In response to a complaint, the company removed the photo.

A spokesman said Facebook’s policies didn’t preclude such pictures – just those that expose too much. The reasons involved concerns about exposing young children to nudity and about online predators and sexual deviants.

As it happens, another major network site, MySpace – sometimes called the Internet’s most popular site – faced a similar controversy recently. Again, photos were removed.

In each case, complaints were received, considered by management, and material was removed – by private entities that have the right to determine what they will show or not show on their sites.

But there was no notice to those who posted the materials. Nothing in the public record about internal company discussions. Nothing resembling a published court opinion. No appeal in the legal sense. No due process.

The issue here runs deeper than words that offend and pictures that embarrass. Critics complain, for example, that some U.S. Internet companies have agreed to cooperate with government censors in China in exchange for access to that nation’s huge marketplace.

I much prefer the tussle and tug of the marketplace of ideas to the legislative floor or the courtroom when it comes to settling issues of free expression. In these two online instances, that means letting customers vote with their wallets and their keyboards once a company sets a policy.

But the reality is that for hundreds of millions of people in the United States and elsewhere, companies such as Facebook, MySpace and Google have tremendous power to control what we say, see and hear. Huge numbers of people could, in effect, never know what they’re missing.

For more than 200 years, private companies have set their own standards in deciding what they print, publish or otherwise present to the public.

But never before have nongovernment officials had the global reach or the technological ability to shut communication on or off, nearly instantly and completely.

The nation’s founders felt it necessary to provide constitutional protection for self-expression and the free flow of information from those who govern real communities.

Our task now is to discuss and decide how – and even if – those protections should apply to those who govern virtual ones.

Photo Illustration by ARNIE BERMUDEZ/Tucson Citizen

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Welcome to 2009 – and to the era of First Amendment 3.0.

First Amendment 1.0 was the time of origination, when the Founders debated, discussed and eventually created in 1791 a statement – the first 45 words in the Bill of Rights – that both declared and protected freedom of religion, speech and press, and the rights of assembly and petition.

First Amendment 2.0 was the time of definition, where the nation – through the means of the independent judiciary – defined those basic freedoms and in the process came to apply those protections to state statutes as well as federal laws.

Which brings us to 3.0 – a time of transformation.

At a pace and range not seen before, we are attempting to apply the principles of the First Amendment to an increasingly diverse society even as technology is redefining – at breakneck speed – what we mean by free expression and association.

The religious-liberty pronouncements of a society once largely defined as Protestant, Catholic and Jewish are being tested by world religions, by Wiccans and by those who profess no religious beliefs.

The means and meaning of free speech and free press are expanding as rapidly through the World Wide Web via social-networking sites, individual blogs, YouTube and a host of other high-tech means.

And even the concepts of assembly and petition are being altered to include instant Internet communities, unprecedented campaign fundraising and online support, and presidential debates that seamlessly cross lines from in-person comments to on-television appearances to online questions and answers.

The era of First Amendment 3.0 requires us to consider old issues in new ways.

Public records deemed essential to tracking what government is doing to whom and when have long been considered “open” – from driver’s license records to land transfers to court documents detailing divorce, business relationships and the like. Individual data could be assembled in the past, but it was a time-consuming, tedious task.

However, in an era of instant communications, a person’s life history can be “aggregated” – in a near heartbeat – causing a collision between privacy and the public’s need to know.

Childish scrawlings on a wall date back as long as there have been walls. But the online, worldwide bulletin board that is the Web can take a once-obscure message – or slur or slander or lie – and give it global, near unerasable reach. How does the law punish perpetual harm or compensate for perpetual defamation?

When did we turn the technological corner to a 3.0 era for First Amendment issues? A few examples:

• Earlier this month, the Committee to Protect Journalists announced there were, for the first time in its annual accounting, more online journalists jailed around the world than from any other medium: 56 of a total 125.

• Powered by Internet overseas sales and publication, dozens of international libel lawsuits prompted attempts by U.S. lawmakers to preclude foreign defamation laws from being enforced unless the nations involved match free-speech guarantees provided in the U.S.

• In May, Missouri lawmakers recognized that harassment could move from the playground to the computer screen, enacting a bill to make cyber-bullying illegal. The bill was spurred in part by the suicide of a young girl who was the victim of a horrible online prank.

• In June, then-Democratic presidential hopeful Barack Obama – already attracting 1.8 million donors, many of them via the Internet – became the first candidate from a major party to bypass public campaign funds. By the election’s end, many said his success spelled the end of public financing, and with it the creaky machinery of campaign-contribution reforms.

At December’s second annual conference of the Family Online Safety Institute, the group proposed the post of a national safety officer within an office of Chief Technology Officer for the United States. In less than two decades, the Internet has grown from a curiosity to a mammoth industry prompting such calls for a cyber-czar.

Perhaps the most profound change in the 3.0 First Amendment environment is found in the news media, where traditional mediums – newspapers, magazines, radio and television – face potentially fatal economic challenges, and at best seem destined to survive as smaller, more focused or more localized versions of their once-greater selves.

According to the 2008 State of the First Amendment survey, the Web is now the principal source of news for 17 percent of Americans, up dramatically from just 2 percent in 1997.

And fully one-half of Americans said their access to news and information would be unchanged, or might even be better, if the Internet and electronic news sources replaced newspapers.

All of this is really putting the “new” in the First Amendment’s third century.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Gene Policinski

As the First Amendment marked its 217th anniversary on Dec. 15, here’s a quick look at where our basic freedoms stand – starting with a free press:

As 2008 ended, most newspapers were shrinking dramatically in size, staffing, circulation. At least a few sizable cities – including, at one point, Portland, Maine – have faced the possibility of having no local daily newspaper at all. Analysts predict similar changes in local and network broadcasting in 2009.

Ironically, this “free press” vanishing act is propelled in no small part by “free media” (as in “no charge”).

Even as the Internet and new technology spur new and ever-more-varied methods of sending and receiving news and information, they are helping to decimate once-lucrative business models that supported what we now call mainstream media.

In one sense, this latest American media revolution also is about opportunity, and a return to its individual, locally owned, locally focused roots.

In our early history the emphasis was on the opportunities of a free press, not its size or wealth. No longer was a king’s license required, a king’s voice the only one heard, or a king’s wrath to be feared.

Echoing that history, an explosion of community bloggers and community online ventures is providing commentary and some reporting, and Yahoo, Google, America Online and other sites are piling up regular users though they originate little reporting of their own.

But while there’s more news and information available, the First Amendment question of last year – and likely for the next several years – is whether the “watchdog” role of a free press will carry over from the “dead tree” media to their electronic progeny.

Some blogs fill the bill: Multiple sites reporting on the U.S. Supreme Court are an example. But there is no new-media machinery yet in place to provide most of us with expert, year-after-year reporting and tracking of courts, legislatures, police departments, schools and taxes.

A free press as an effective check on government is what the nation’s founders had in mind when they provided constitutional shelter for scribes of their time and ours.

Individual expression and opinion are vital in a democracy, but so are accurate information and public accountability. And for more than two centuries, we’ve been able to expect all of that from a free press – even if it cost us some coins to purchase the means of reporting.

New technology is creating other First Amendment challenges, as well:

• President-elect Barack Obama’s successful fundraising, with a powerful online component, attracted $750 million as he spurned public funding. In the process he challenged a creaky system of federal campaign-finance limits that some maintain improperly limit free speech. In this year’s State of the First Amendment national survey, support declined for limits on contributions.

• Social-networking sites like Facebook and MySpace spawned controversies ranging from defamation flaps between school administrators and students to a trend involving teens’ sending naked or semi-naked pictures of themselves to friends – triggering child-pornography charges.

• Spurred by a teen’s suicide, Missouri lawmakers enacted a law making online harassment – “cyberbullying” – a crime.

Not all First Amendment challenges are electronic in nature:

• In Boston, a Rastafarian man will get his day in an appeals court challenging as religious discrimination a Jiffy Lube company policy requiring him to cut his hair and shave off his beard. A lower court held the company had a right to control its public image and that it did not have to exempt the employee because of his beliefs.

• Legal fights erupted in several state courts over vanity or specialty license plates, prompted by individuals seeking to display creative messages or by state-approved slogans like “In God We Trust” or “Choose Life.”

• Laws to ban picketing at military funerals were challenged in several Midwestern courts, and a small protest group vowed to fight criminal charges.

• On a Sunday in September, pastors in as many as 22 states defied an Internal Revenue Service regulation barring direct candidate endorsement from the pulpit under penalty of their churches’ losing tax-exempt status.

And with the holiday season, one more First Amendment debate is worth noting. In Washington state, officials permitted atheists to post a message alongside a Capitol hallway Nativity scene.

That upset some, including demonstrators who marched around the building with protest signs – exercising their rights of free speech, free press, assembly and petition.

All in all, a pretty vigorous 2008 workout for a 217-year-old.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

The village green has grown to include the village screen.

The 21st century dynamics of free press and free speech are an intriguing blend of traditional news media, new technology, personal messages and even entertainment programming.

And, considering the success of President-elect Barack Obama’s use of e-mail, text messages and social-networking sites like facebook.com in his campaign, First Amendment scholars may be revising contemporary definitions of assembly and petition as well.

Consider these post-Election Day observations, based on reports from colleagues at the Newseum in Washington, D.C., and news reports elsewhere:

• Modern-day “town criers” brought Election Night news in a personal way: News reports said more than 1.2 billion text messages were sent between 7 p.m. and midnight on Nov. 4, as broadcasters and Web sites reported state-by-state results and then the news broke around 9 p.m. Tucson time that Sen. Obama would be the 44th president of the United States.

• Mainstream print media still matter, but in new ways: Beginning at 5 p.m. on Nov. 5, Newseum visitors and tourists stood as many as five deep at 555 Pennsylvania Ave. N.W. to examine newspaper front pages from the 50 states and overseas reporting Obama’s historic victory. Television crews followed. It was a unique New Age experience – people posing with printed newspapers, in front of broadcast media, for cell-phone photos to be sent wirelessly to Web sites.

• Journalism is not only “the first draft of history,” but also the historical memento: USA TODAY sold an extra 380,000 copies post-election and more online since. The Washington Post printed 1,050,000 commemorative editions. The Chicago Tribune printed more than 1.1 million copies of the Nov. 5 edition, about 410,000 more than its regular run. The Los Angeles Times printed at least 200,000 extra copies. The Atlanta Journal-Constitution had to reprint five times for a total of 248,000 extra newspapers.

• TV ratings were shared in a new way: ABC News topped all Election Night competitors with 13.2 million viewers, but cable’s CNN came in second at 12.3 million. NBC’s “SNL Presidential Bash” on Monday night was the network’s top entertainment program for the week, with 14.4 million viewers. Comedy Central’s “Indecision 2008″ special alone drew 3.1 million.

In the nation’s earliest years, pamphleteers like Thomas Paine, partisan newspaper editors and publishers such as Benjamin Franklin and Benjamin Bache and a host of Colonial orators in town halls and on village greens fueled debate and provided information to the public.

It was that politicized press and speech, and a desire to protect the public’s right to challenge and petition its government for change, that prompted the 45 words of the First Amendment.

Fast-forward to 2008. A Nov. 3 article by Adam Nagourney of The New York Times was premised on the idea that the Obama Internet strategy has “rewritten the rules on how to reach voters, raise money, organize supporters, manage the news media, track and mold public opinion, and wage – and withstand – political attacks.”

Pulitzer Prize-winning journalist Jose Antonio Vargas of The Washington Post has been researching “Triple O,” the nickname for Obama’s online operation, and its reach to new groups of voters such as students and its fund-raising success.

He told a Newseum audience in October that the model for this 2008 effort was none other than Sen. John McCain’s 2000 campaign’s use of the Net to attract donations.

Vargas says the Web is outpacing television as the source for news and information: “The press as we know it has been governed by images and sound bites. I think we’re transitioning away from the era of sound bites . . . . The way we interact with news has fundamentally changed. People want to talk back. People want to feel as if they’re represented.”

Not all the “talk back” on Election Night was positive. A University of Texas football player posted an election-related comment including a racial slur in response to a facebook.com template question: “What are you doing right now?”

After his comment went out widely on the Web beyond his intended audience, the sophomore player was expelled from the team despite an apology for his “bad judgment” in posting the remark.

That’s how the First Amendment works: In any era, it protects you from prior government restraint, but you get to deal with the results of what you say – be that winning a presidential election or commenting on the victor.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Ruling about fake Web page chips away at student free speech

A Pennsylvania eighth-grader recently learned a hard lesson: At least one federal judge says school officials can reach off-campus and into cyberspace and the home to punish what the court agreed was a “vulgar and lewd” Web posting aimed at a school principal.

Failing in her First Amendment-based argument, the student at Blue Mountain Middle School in Orwigsburg, Pa., did not gain reversal of a relatively minor punishment, a 10-day suspension from classes.

But for an administrator who admirably decided to forgo his legal options, she could have faced a criminal charge of harassment and a civil lawsuit for defamation.

The negative nature of the Web posting is not at issue. The student put up a fake site that included lewd remarks about the principal and his wife, and made it appear that the administrator had identified himself as a “sex addict” and a pedophile.

The longest-lasting impact may well be that yet another court decision expands the legal legacy of an oddly nicknamed Alaskan lawsuit decided by the U.S. Supreme Court in 2007, the “Bong Hits 4 Jesus” case.

In the Pennsylvania case, two Blue Mountain students were disciplined in December 2006 for dress-code violations. About three months later, the pair used a home computer to create the fake page on MySpace.com, a social-networking Web site, using a photo of the principal.

The students tried to limit online access, but a printed copy of the page made its way to school, prompting the suspension.

One of the students and her parents filed a federal lawsuit challenging the suspension.

They argued the Web site clearly was protected by the First Amendment as a parody, that it made no threatening statements and that no school computers were used to create or view the material.

One of the main defenses cited by the student and her parents was a 1969 Supreme Court case, Tinker v. Des Moines (Iowa) Independent Community School Board, upholding student free expression. It included the hallmark observation that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But federal district judge James M. Munley ruled that Tinker was concerned with protecting “political speech” that some administrators did not like.

And, citing cases that followed Tinker, the judge held that Blue Mountain school officials had authority to order the suspensions because of the lewd remarks, even though the in-school chatter about the page didn’t reach the Tinker-required level of “substantial disruption.”

He also noted Tinker does not protect speech that invades the rights of others.

Besides providing another warning to students that what may seem unobjectionable at home may bring serious trouble in the wider world, the Blue Mountain decision is yet another court ruling citing the “Bong Hits” case – Morse v. Frederick – as one of the justifications for extending school authority off-campus – onto the Web, and even into the home.

In “Bong Hits,” a principal crossed a public street across from school grounds to take down a student-held sign that she said – and the Supreme Court agreed – encouraged marijuana use.

Chief Justice John Roberts’ opinion took pains to focus on drug-related speech, noting: “There is some uncertainty at the outer boundaries as to . . . how far can school officials reach into the home” on matters that should solely concern parents or the police.

Still, Judge Munley held that the Morse principles and legal reach applied in the Blue Mountain case because both cases involved potentially unlawful actions.

Some First Amendment advocates found that Roberts’ tightly written opinion – and the facts of “Bong Hits” – only minimally extended school authority over student speech. But since then, several courts around the nation have cited the case in extending the reach of school policies to nonschool hours and noncampus locations on matters as varied as violence, student press and now defamation.

It would be a travesty if the great constitutional notion of Tinker – that it’s worth protecting the right of students to express themselves on matters of public concern, even to the discomfort of school officials – ultimately falls victim in law to a creeping set of decisions involving childish Internet pranks intended to hurt or harm, not to inform or illuminate.

ARNIE BERMUDEZ/Tucson Citizen

Gene Policinski heads the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Democratic and Republican partisans and independent observers have made charges, questioned candidates' character and attacked a universe of proposals - and no one has "disappeared" or is under house arrest or in prison as a result.

The 2008 presidential debate season is over, but one undebatable observation needs airing.

Americans once again can celebrate a primary and general election season of unique and open exchanges of views among candidates and citizens alike, despite a few noteworthy potholes in the First Amendment highway.

Consider for a moment that not a single member of the administration now in power had a controlling hand in planning, conducting or censoring the four national exchanges – the three presidential debates and one vice presidential meeting. Of how many nations around the planet could the same be said?

Democratic and Republican partisans and independent observers have made charges, questioned candidates’ character and attacked a universe of proposals – and no one has “disappeared” or is under house arrest or in prison as a result.

Third-party candidates, though not included in the national television debates, continue to appear on many ballots and make election-year rounds ranging from personal appearances to interviews on National Public Radio and in other news outlets.

The Web has given free and accessible voice to citizens, experts, individual Web sites and well-funded online campaigns alike – all ours for the taking or rejecting. Newspaper and television journalists may well have complaints about direct access to nominees, but that’s campaign strategy, not government regulation.

Still, the 2008 election process has not been without its free-speech challenges and questions:

• In both Denver and St. Paul, during the Democratic and Republican conventions, protesters and some journalists were rounded up by authorities in overreaction to or anticipation of disruptions (and some would say negative voices spoiling neat convention plans). Expect many of those arrests and detentions to end in taxpayer-funded financial settlements rather than convictions, as has been distressingly common in recent years.

• Officials initially decided, though they later backed down, that prohibitions against “campaigning” by state employees ought to extend to silencing student voices in Illinois or Texas, or at least banning candidate signs in dorm windows.

• Pastors in more than 20 states on one Sunday in September made specific recommendations about political candidates, challenging a 1954 tax code provision that says that certain nonprofit groups, including churches, can lose tax-exempt status for such from-the-pulpit candidate endorsements. The pastors’ goal is to force a lawsuit that might overturn the tax provision.

• A political watchdog group filed a complaint Oct. 10 asking the Federal Election Commission to investigate both a pro-Democratic group and a pro-Republican group for what it claims were improper television campaign commercials. The move is the latest in the multi-year dispute over balancing free-speech rights with campaign-finance regulations.

But despite those legal and ethical flaps, for most Americans the season has been one in which we could get as much information, from as many sources, as we could want.

There also were new efforts by both mainstream and new-media news organizations to fact-check many candidate claims.

Both Sens. Obama and McCain have used the Web to advance ideas, counter allegations raised by private groups and, particularly for the Obama campaign, to exploit the reach and immediacy of e-mail and Web postings to keep in contact with supporters.

One bit of free speech was missing this year, though. A recent Los Angeles Times article noted that 150 years ago in the Lincoln-Douglas congressional debates, both candidates not only went at each other directly for hours, but often in the seven meetings also would respond directly, and sometimes cuttingly, to catcalls from the audience.

By those standards, Joe the Plumber – and the rest of us – fared pretty well this time around.

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org

Perhaps one reason so many are not fearful of, or would even invite, government limits on the five freedoms is that so few of us can even name them.

The nation recently marked Constitution Day, and it’s worth noting what a difference a few centuries make.

Constitution Day is a relatively new mandate from Congress for the nation’s schools and colleges – and an invitation for the rest of us – to spend time annually considering the 1787 document that created a strong, stable central government.

The Constitution replaced a much looser set of rules spelling out how the states would cooperate as a nation – the Articles of Confederation – that quickly proved unworkable in the view of many of the nation’s Founders.

Just four years after ratifying the Constitution, after much debate, the states adopted the First Amendment and the rest of the Bill of Rights in 1791 as a guarantee that the strong federal government would not trample on individual basic freedoms.

More than two centuries later, that fear of government has mellowed for many of our fellow citizens, according to the 2008 State of a new First Amendment survey released by the First Amendment Center.

Americans traditionally support the general concepts of free expression and religious liberty, but when asked in the survey about specific situations, many were willing to accept a measure of government involvement or even control.

The nationwide survey questions adults each year on their attitudes and opinions about free expression, a free press and religious liberty. The survey found that this year:

• 39 percent would extend to subscription cable and satellite television the government’s current authority to regulate content on over-the-air broadcast television.

• 54 percent would continue IRS regulations that bar religious leaders from openly endorsing political candidates from the pulpit without endangering the tax-exempt status of their organizations.

• 66 percent say the government should be able to require television broadcasters to offer an equal allotment of time to conservative and liberal broadcasters; 62 percent would apply that same requirement to newspapers, which never have had content regulated by the government.

• 38 percent would permit government to require broadcasters to report a specified amount of “positive news” in return for licenses to operate.

• 31 percent would not permit musicians to sing songs with lyrics that others might find offensive.

• 68 percent favor government restrictions on campaign contributions by private companies, and 55 percent favor such limits on amounts individuals can contribute to someone else’s campaign.

One of the great debates in Colonial America was whether or not to continue as citizens of a benevolent monarch – as kings saw themselves in those days – who would decide what could be said, sung or printed, along with controlling elections and the courts.

In the end, the Founders declared their independence and the “inalienable” rights of individuals, and later used the Bill of Rights to define strong limits on how government might intrude on those rights.

Perhaps one reason so many are not fearful of, or would even invite, government limits on the five freedoms is that so few of us can even name them.

The survey found again this year that just 3 percent of those questioned could name “petition” as one of the five freedoms in the First Amendment. Only “speech” was named by a majority of respondents, 56 percent.

Less than 20 percent named religion (15 percent), press (15 percent) or assembly (14 percent). The number for speech is the lowest in the 11-year history of the survey. As troubling: 4 in 10 could not name any freedom – the highest such result in the survey’s history.

“Inalienable” rights for all, indeed – but in today’s United States, rights that are unknown, unnamed, or even undefended, by many.

On the Web

Full survey results:

www.firstamendmentcenter.org/pdf/SOFA2008survey.pdf

Gene Policinski is vice president and executive director of the First Amendment Center (www.firstamendmentcenter.org). E-mail: gpolicinsk@fac.org