Saturday, December 15, 2012

Happy Birthday, First Amendment - December 15, 1791

Almost half a century later, New York Times v. Sullivan is still a powerful precedent for press freedom

"Let all with something to say be free to express themselves. The true and sound will survive. The false and unsound will be vanquished. Government should keep out of the battle, and not weigh the odds in favor of one side or the other." - Fredrick Siebert, Four Theories of the Press (1963)

On this date in history, in 1791, the First Amendment to the United States Constitution became law. The text of the First (right sidebar) is simple and elegant, and stands like a sentry defending freedom of thought, worship and expression. Forty-five words suffice to stop potential tyrants in their tracks. The draftsmen of the American Bill of Rights had long suffered at the hands of British monarchs who could not see that the Age of Democracy was at hand, and they understood from bitter experience the need to build a wall of expressive protection which would endure through the ages in the young nation. The First Amendment is 221 years old today and is as healthy as ever, despite challenges over the years by those who sought to silence robust speech and the free exchange of information.

The First Amendment has been the subject of more landmark rulings by the U.S. Supreme Court than any other provision of the American Constitution. There are hundreds, but one of the most important was New York Times v. Sullivan (376 U.S. 254), decided in 1964 as the Old South fought desperately to hang on to its moribund segregated society and a legal system which was heavily dependent upon race based violence. In a powerful and pristine defense of its purpose, Justice William Brennan wrote:

"(The First Amendment) was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. The opportunity for free political discussion so that government may be responsive to the will of the people and changes may be obtained by lawful means - essential to the security of the Republic - is a fundamental principle of our constitutional system. It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this is to be afforded for vigorous advocacy no less than abstract discussion. The First Amendment, said Judge Learned Hand, 'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.'

"Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They knew order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."

The Sullivan case was decided Mar. 9, 1963, and here's a great piece about it: Today Is the 50th Anniversary of the (Re-)Birth of the First Amendment.

History of the Sullivan litigation: This newspaper ad, which appeared in the March 29, 1960 edition of the New York Times, catapulted the famous case into the legal textbooks. The ad solicited funds to help defend black civil rights leader Martin Luther King, Jr. against an Alabama perjury indictment, and complained that King had been subjected to seven illegal arrests by local authorities. In fact he had been arrested four times. Although his name nowhere appeared in the ad, Montgomery County Public Safety Commissioner L. B. Sullivan alleged that he and all of the police department officers whom he supervised had been indirectly libeled. Sullivan sued and won a verdict for $500,000 against the Times in an Alabama court, which was upheld by the state supreme court. But in a unanimous, 9-0 decision the U.S. Supreme Court reversed and vacated the judgment. Sullivan collected nothing.

Demonstrators during the Selma to Montgomery Freedom March in 1965. Alabama state police didn't hesitate to use violence in an effort to bust up the protest. But it was far too large to contain, and the national press recorded it all. The country was shocked into consciousness of the civil rights struggle when the brutal scenes were replayed on television screens. More than a few reporters were attacked by police and marauding local gangs.

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