[Published in Mercutio magazine, Issue #4, September 2011]
The First Amendment: There’s a Reason Why It’s the First
By Laura Sheehan
The United States of America was still in her infancy when concerns arose regarding her Constitution; states were unhappy with the ambiguity regarding which powers the government had (and didn’t have). It was decided that a new document should be written and ratified, which would restrict the government’s power in specific instances and explicitly state which freedoms were protected. Thus, in 1791, the Bill of Rights was born.
Today, few of us can cite each of the ten amendments verbatim, but for the most part (I’d like to think), American citizens are familiar with the general idea behind the Bill of Rights and which freedoms it protects. We know that it says we have the right to “bear arms” to defend ourselves, we know we have a right to privacy against illegal “searches and seizures,” and if we were really paying attention in high school Government class, we’d know about the one which prevents soldiers from barging into our homes during peacetime and demanding to sleep on our couch. But by far the most well-known amendment is the first one:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In short, the First Amendment protects our freedom of expression. It says that as American citizens we have the right to believe in whatever G-d we chose, or no god at all. It says that the government can’t control what we say or write, even if the person saying or writing it is a publishing their thoughts in a newspaper or book or magazine, or broadcasting it on radio or television or over the internet. It says Americans are allowed to march down Main Street in protest and conduct Wiccan equinox celebrations by moonlight and host Dungeons & Dragons games in the basement. And it says that if the government ever tries to deny us any of these rights, then we have the right to call them on it.
It’s actually quite a beautiful piece of legislation. One 45-word sentence that embodies all of what America stands for: diversity, freedom/liberty, justice. Sure, its simplicity causes a bit of ambiguity, but that’s part of its beauty. It was written clearly enough to protect freedom of expression for American citizens for a couple hundred years and counting, and yet it was vague enough to allow that protection to stay relevant.
Over the years we’ve needed to utilize the judiciary branch now and then to clarify exactly what speech is protected under the law and what isn’t, but so far, I think the courts have done pretty well. The courts have help identify specific types of speech that are not protected by the First Amendment, such as child pornography, obscenity, defamation, incitement, and “fighting words.” They’ve also had to remind governmental officials now and then that they can’t remove a book from a library simply because the librarian disagrees with the ideology of that book, and that it can’t force its citizens to salute the flag or pledge allegiance to it.
Again, I think we’ve done an admirable job both protecting and restricting the First Amendment over the past several hundred years, despite the ever-changing scenarios our country has found itself in.
What a perfect system!
And then the Snyder v. Phelps decision was announced.
Fred Phelps is the head of the Westboro Baptist Church (WBC), an institution whose media-whoring stunts blaspheming homosexuality and non-Baptist religions has led most of society to label it as a hate group. They are most infamous for picketing at the funerals of fallen American soldiers, one of whom was Lance Corporal Matthew Snyder (U.S. Marine Corps), who died in the Iraq war (2006). Members of the WBC protested near the funeral location and the WBC website criticized Snyder’s family for raising Matthew as a Catholic. At the protest, WBC members carried signs that declared, “God hates you,” and “Thank God for dead soldiers.” Snyder’s father subsequently took Phelps to court, originally for invasion of intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. In a lower court of law, a judge instructed the jury to decide whether or not the speech in question was protected by the First Amendment, or if it was too extreme so as to be offensive to a reasonable person, and therefore not protected under the law. The jury decided it was the latter, and awarded Snyder several million dollars in damages.
Justice served, yes?
Upon appeal, the Supreme Court (in an 8-1 decision) disagreed. They pointed out that it should not have been the original jury’s responsibility to decide a question of law (whether or not WBC’s protests were protected by the First Amendment), but rather that the jury’s responsibility is only to decide a question of fact. They also argued that because the WBC protestors stayed within the cordoned-off area and since only the tops of their protest signs could be seen, that Snyder’s memorial service was therefore not interfered with. Because of this, the Supreme Court ruled in favor of Phelps and damages were instead awarded to the WBC.
My immediate reaction to this ruling was one of disgust… nauseous, bitter disappointment in my country and its court of law for siding with such a hateful person. Did our founding fathers really intend to protect a racist homophobe who shouts at the family of a fallen soldier that God hates them because of their religion? Could such revolting speech really be protected based on technicalities regarding the location of protestors and how visible their signs were? Is that really what the First Amendment is meant for?
And a small voice inside me answered, “Yes.”
Suddenly I saw Michael Douglas standing at a podium as the fictional U.S. President Andrew Shepherd in The American President (directed by Rob Reiner, written by Aaron Sorkin, 1995):
“You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”
Damn you, Aaron Sorkin. Fuck you for being right.
That is what the First Amendment is about. I shouldn’t be trying to silence Phelps and his followers, I should be shouting at the top of my lungs to drown them out.
And in a way, that’s what America has been doing. The vast majority of the media has condemned the WBC for being the ridiculous, ignorant, revolting hate group that it is. Both republicans and democrats have used his “church” as the perfect example of how not to behave. Ordinary citizens have counter-protested the WBC, carrying signs with messages of peace and using their bodies to physically shield funeral-attendees from having to see the WBC picket lines. Gay rights activists have enacted the old adage about actions being louder than words and engaged in same-sex make-out sessions in front of appalled WBC protestors.
And those who still aren’t satisfied should exercise their First Amendment rights and petition our government to pass a law prohibiting anyone to protest near/within sight of a funeral or a memorial service so that no one has to suffer through what Snyder’s family endured.
And then we should recognize and respect that same law when Phelps finally dies: Although we’ll gladly send him off to Hell, we won’t harass his family at the funeral about it. Why? Because that’s how laws should work: they should protect everyone, not just the people we like.
The more I think about it, the more I realize that the First Amendment isn’t just about protecting freedom of expression. It serves as a reminder of what our country truly stands for. It forces us to recognize that our country is diverse, and that in itself makes us stronger. It encourages us to engage in true discussion and debate, for without that our country will never achieve its full potential.
Justice Louis D. Brandeis perhaps put it best:
“[Those who won our independence believed] that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government… If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
So if you have something to say, go grab a poster board and a Sharpie, get up on that soap box, bring some Ricola throat lozenges, and make yourself heard! Or write a magazine article. That’s what I did.