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First Amendment in Crisis

Copyright 2004 by David W. Neuendorf

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Recent moves by some John Kerry supporters are piquing my fears for the future of the First Amendment. Before I proceed to discuss this topic, let me offer this disclaimer: I am not motivated by support for President Bush. The actions of his administration are almost as dangerous to the First Amendment and other provisions of the Constitution as anything I would expect to see in a Kerry administration.

In my view, neither major party candidate should be trusted to collect the garbage (no offense intended to those noble individuals who faithfully carry out that important function!); both are disasters for America. Though I'm not totally happy with anyone on the ballot, I intend to vote for the Libertarian Party presidential candidate, Michael Badnarik. (Note to anyone who might follow my lead: I disagree strongly with some of Badnarik's positions on abortion and immigration.)

An October 12, 2004 Associated Press story noted that the Sinclair Broadcast Group intends to show "Stolen Honor," a documentary about John Kerry's controversial behavior during the Vietnam War. 18 Democrat US Senators, led by Dianne Feinstein and Edward Kennedy, asked Michael Powell, Chairman of the Federal Communications Commission (FCC), to investigate whether the show is a "proper use of public airwaves." The senators hoped that the FCC would conclude that it has the power to prohibit the broadcast.

The WorldNetDaily web site reported on Powell's response on October 15, 2004. The FCC chairman stated that his agency could not prevent the broadcast because "I think that would be an absolute disservice to the First Amendment and I think it would be unconstitutional if we attempted to do so."

The First Amendment dodged a bullet this time because an unelected federal official stood by his oath to defend the Constitution. On the other hand, almost twenty percent of the elected members of the US Senate are ready to scrap the First Amendment in order to help their favored presidential candidate. This is only the latest in a series of attempts by people in Congress and the administration to suppress dissemination of opinions.

As Martin Luther used to say, "are you beginning to smell the roast?" It is not news that many constitutionally guaranteed rights have been under attack, but the right to free speech and a free press have generally been considered sacrosanct. The erosion of respect for the Constitution has proceeded so far now that even the First Amendment is no longer spared. Our liberty is in mortal danger while such attacks are tolerated by the electorate.

What has led to this weakening of support for our most cherished right? I believe there is an inevitable progression from ignoring or making "conditional" some constitutional guarantees to doing the same for all such guarantees. Congress, recent administrations and the courts have instituted limitations on the Second, Fourth, Fifth and other articles in the Bill of Rights. What fantasy makes us believe that the First Amendment would be immune to this treatment?

Conditional rights are one of the hallmarks of totalitarians and other power seekers. The Soviet constitution, the UN Charter and its Convention on the Rights of the child, for example, mention all sorts of rights guarantees, but eviscerate all of them with phrases like, "except as provided by law." Such "guarantees" are no guarantees at all, but mere platitudes.

Our Constitution contains only firm guarantees of rights: "Congress shall make no law...," "...shall not be infringed." There isn't a single "except as provided by law" to be found. Uncompromising? Absolutely; and also essential to the maintenance of liberty.

Unfortunately for our children and grandchildren, we have begun to compromise on the uncompromisable. The Fourth Amendment requires that searches be made only when a warrant showing probable cause has been issued. We now allow warrantless searches in the form of random drug testing, DUI and drug roadblocks, and other conditions where the government "interest" is considered more compelling than obedience to the Constitution.

We allow the taking of property rights without just compensation for reasons of environmental activism or business expansion, in spite of the guarantees of the Fifth Amendment. We institute more and more gun control in defiance of the Second Amendment. These cases treat constitutional guarantees as conditional.

Now we see that the First Amendment is no more immune to this treatment than any of the other amendments. The foot in the door in this case is regulation of political speech in the name of campaign finance "reform." Under the McCain-Feingold law, the guarantees of the First Amendment are limited by the desire of politicians not to have their records fully exposed during an election season. With such restrictions passed by Congress, signed by the president and allowed by the Supreme Court, it should be no surprise that eighteen of our senators think they might be able to quash a television show that presents inconvenient facts or opinions.

We are rapidly approaching a crisis point where, if we don't start to require that our officials obey the Constitution without conditions or compromise, we will lose the freedom to require that or anything else of government. If only our own generation were affected, we might blithely say that we are getting what we deserve. But our children and grandchildren will pay the price of our neglect. It is time to show some outrage when officials violate their oaths to support and defend the Constitution of the United States.