Taking Another Look At The Constitutional Blueprint

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My research certainly did not prepare me for current attempts by the radical Right Wing not only to mobilize public opinion against supposedly liberal and Left-leaning men and women of the media, but also to turn to the courts as a political in terrorem device. The costs of litigation, especially with the discovery procedures that are a development of recent decades, have risen almost as astronomically as the costs of medical care. The mere prospect of a suit has become intimidating.

The decisions of the United States Supreme Court make the defense prove that they have not been reckless or malicious in providing an account that either cannot in all essentials be defended as true or would take enormous expense to defend on the grounds of truth in every particular statement. In 1985 the Boston Globe withstood a suit by a Right Wing Republican who claimed that his loss of a chance to become governor was the result of a series of defamatory articles; the journalist who had written the articles and the editors of the Globe spent many weeks in court as the eventually unsuccessful suit dragged on.

The threat to First Amendment freedoms would be less grave if there were not a general public animosity toward large institutions, among these being the major media. I am inclined to think that the media are a target of public antipathy in part because they bring the public items that it enjoys and yet of which it disapproves, whether these are titillating stories or interviews with the relatives of victims of terrorism. By catering to voyeurism, the press and television risk being seen as the equivalent of prostitutes, satisfying cravings of which the cravers disapprove. Furthermore, the men and women of the major national media are generally more liberal, more educated, more cosmopolitan, less xenophobic (although not markedly so in this last respect) than the population at large, and than the journalists and broadcasters of purely local media. Juries the country over, though with variations by locale, have been “trained” to think nothing of huge verdicts climbing into the millions. Liability insurance against suits for defamation has become almost prohibitively expensive.

Hence today I have a renewed interest in the First Amendment insofar as it refers to freedom of speech and press, and a renewed belief that public attitudes toward defamation are an important element in the protection of democracy against its enemies.

I should perhaps add that such an outlook does not lead me to become a First Amendment junkie with respect to journalists’ efforts to penetrate closed meetings of public bodies (negotiating sessions, for example) whose feasibility depends on secrecy, under the general claim of “the public’s right to know.” Sunshine, Open Meeting, and Freedom of Information Laws have had extremely mixed consequences, and I do not associate these with First Amendment freedoms, which do not automatically ensure the right of journalists to invade the privacy that members of society need if we are to trust one another, talk reasonably with one another, and reach compromises of conflicting interests even in the face of ideological outcry.

-David Riesman Henry Ford II Professor of the Social Sciences Emeritus, Harvard University.

For me, the most important part of the Constitution is the First Amendment. Without it, I should have to be in another business.

Is there any other part of the Constitution that is more litigated? Perhaps so. But what other part attracts as much controversy? It is the neediest of amendments, constantly in need of judicial and political support.

-Frances FitzGerald Author of America Revised and, most recently, Cities on a Hill. 

The article of greatest significance to me is the First Amendment—because it is the guarantee for us all of the freedom of expression that is as indispensable for the writer as it is imperative for a democratic society.

-Arthur Schlesinger, Jr. Albert Schweitzer Professor of the Humanities, City University of New York.

I am an absolutist on Freedom of the Press (and of assembly, speech, religion). I want to see no limitations there.

I would not protect freedom to cry fire in a crowded theater but I’d want a long, long look at the circumstances. I would not protect publication of troopship sailing, but here too I would prefer to err on the side of a dubious publication rather than put a possible shackle on an eccentric editor.

-Harrison E. Salisbury Journalist and author.

For me the choice has got to be the First Amendment, especially the freedom of speech clause. I know it is probably the most controversial, the most difficult to enforce, and one of the most evaded. But it has stood guard over American intellectual and academic freedom for a couple of centuries. If it falters or nods or is pushed aside occasionally, it is still good to know it is there.

-C. Vann Woodward Sterling Professor of History Emeritus, Yale University.

The First and Other Amendments