Rewriting the First Amendment BY JAMES CULLEN THE FIRST AMENDMENT has been called the cornerstone of the Bill of Rights, and rightly so. For the past 200 years it has on and off guaranteed freedom of speech, of religion and of the press; no other nation has so enshrined those basic freedoms of expression. Only lately has it become fashionable in some quarters to undermine those foundations. The John Henry Faulk Conference on the First Amendment recently drew 17 authorities to the University of Texas to discuss the embattled amendment. One of the main exhibits was a survey conducted for the American Society of Newspaper Editors that showed increasing public misgivings about those freedoms. “There is a sense that the American people don’t feel the amendment belongs to them that it belongs to arrogant editors and journalists, it belongs to radical protestors and it belongs, in their minds, to pornographers,” said John Seigenthaler, former publisher of the Nashville Tennessean, now chairman of the Freedom Forum First Amendment Center at Vanderbilt University. “It’s quite clear they would reject the First Amendment today” if the Bill of Rights were put up for a popular vote, he said. Robert Wyatt, a professor of journalism at Middle Tennessee State University in Nashville, who conducted the survey, said it contained contradictions, such as two-thirds of the American public believing in free speech for themselves, but only one-third believing that newspapers or broadcasters should have the absolute right to endorse political candidates. The strongest defenders of free expression are middle-class white men, he said, while women and minorities are more likely to fear speaking their minds. “One reason Americans don’t support free speech is because they don’t have a lot to say. That is perhaps my saddest conclusion,” he said. Most of the panelists supported a broad interpretation of the freedoms. The notable exception was Lino Graglia, a professor at the University of Texas School of Law who frequently has been mentioned as a potential Republican Supreme Court nominee. Graglia ridiculed Wyatt’s concern about the erosion of support for free speech. “What most amazed and disheartened me about the report is that there are so many nuts that actually share Professor Wyatt’s point of view on speech rights,” Graglia said. “Would you believe, for example, that 36 percent of the American people believe that there is or should be a right ‘to spread lies that damage other people’? Would you believe that 28 percent think there is or should be a right to ‘give classified information to a foreign government’? And perhaps most incredibly would you believe according to his survey that 20 percent of the American people think there is or should be a right to ‘falsely yell fire in a crowded theater.’ ” Graglia, who teaches constitutional and civil rights law, also noted that judges have upheld the rights of panhandlers in subways and vagrants in libraries. “It seems that a lot of Americans should be told that although some judges have indeed given us some crazy rights, the situation may not be quite as bad as they think…. “Professor Wyatt complains that many Americans feel they have a ‘right not to be offended.’ But these Americans are correct to think they should have such a right if they do not … a right, for example, to walk the streets, ride the subways and visit libraries without being subjected to insult, harassment and indignity. “Our problem is not an excessive willingness to limit allegedly expressive activities, as Wyatt thinks. The problem is excessive tolerance of public disorder under the mistaken notion of some judges that they are somehow protecting speech.” Graglia argued that the First Amendment does not protect free expression. “The word ‘expression’ doesn’t occur,” he noted. “It says speech, and not all expressive activity ought properly be considered speech.” Graglia also complained that the audience was unreceptive to his remarks. “Professor Wyatt tells us he is willing to accept public disorder in the interest of freedom of expression, to, I think, rousing applause. I gather I have a hugely unsympathetic and unperceptive group here,” Graglia said, but he drew comfort that the audience did not reflect public opinion at large. “Most American citizens … believe there should be some rather clear impositions of order,” he said. “It is generally thought that the security of the citizen, especially in public places, is the very first obligation of government, and outrages like [judges saying] ‘You can’t ride the subways without being harassed by panhandlers, or use libraries without their being homes for vagrants,’ happens to be not what most American people think is a sensible social arrangement.” Graglia defended his revisionist view of the First Amendment, noting that the Bill of Rights, was proposed by people who wanted to weaken the Federal government. “The point of the First Amendment was to leave matters of religion and speech to the states,” he said, noting that shortly after the Bill of Rights was enacted, Congress passed the Alien and Sedition Laws that penalized criticism of political figures. The commitment to free speech obviously was not very strong at the time. Some panelists stepped up to the plate against Graglia’s wicked curves, but few got more than a foul tip off him. Alexander Cockburn, the Nation columnist, suggested that Graglia, with “deplorable demagoguing,” was making a campaign speech for the Supreme Court. Graglia dismissed that suggestion by noting that the American Bar Association already has found him unfit for judicial office. Lawrence Goodwyn, a history professor at Duke University who specializes in social movements and a former Texas Observer editor, made contact with his critique of Graglia’s comments. “What I did see in front of my eyes, Dr. Graglia, was anger and a philosophy that seems to privilege the state over people and maybe corporations over the state, and I certainly have discerned that thread through the Supreme Court lately, and I treasure the Bill of Rights because it attempts to erect a wall around people so that these other forces can’t intrude. And I get very nervous when people get very angry and very mean in defense of order. I can hear jackboots. That’s how you get order,” Goodwyn said, to applause. Well, as Graglia said, it was a free-speech crowd; a tough room for a rightwinger to work. Goodwyn also told about how Communists used to picket at the house of John Henry Faulk’s father because Faulk’s father, being a Socialist, was the only one in town who understood their argument. After they were through picketing, he would invite them in for coffee. “That is a very disorderly sort of thing to be going on in Austin, Texas, but I approve of it,” Goodwyn said. Gary Reaves, a reporter at WFAA-TV in Dallas, noted that Graglia would make state legislatures the protectors of freedom and asked “why that doesn’t scare you as much as it scares me.” Graglia replied, “What scares you people, and quite rightly, is the American people. You are the absolute nightmare of the American intellectual, of which perhaps Dr. Goodwyn is the epitome. He cannot hear someone say that perhaps nude dancing is not speech without hearing jackboots. Talk about ad hominem, and the kind of attack one could be subject to take a contrary view in a hardly sympathetic gathering.” “The Texas Legislature is the closest arrangement we have for representative government, with all its flaws and faults…. The alternative to the Texas Legislature making the laws is that judges make the laws,” he said. Reaves, who is black, rejoindered, “… If this had always been the law, I wouldn’t be able to vote. These [legislators] are the guys that built whole black college systems so I couldn’t come to this school [UT], and the Constitution is sup 10 JUNE 19, 1992
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