4.2.12 WC: 191694
The First Amendment has undergone more change in the past fifty years than it had in the first 170 years of its existence. Most of the changes have been for the better, such as the virtual elimination of offensiveness as a justification for censorship, and the severe limitations placed on defamation actions against public figures. I’m proud of the role I have played in helping bring about these positive changes.
There are several areas, however, where the First Amendment remains in grave danger. One of them is the use of threatened violence to impose self-censorship, if not governmental censorship. Although the “fighting words” doctrine has always imposed a limitation on freedom of speech, it had been considerably weakened both in theory and in practice until the recent advent of radical Islam, with its threats to kill anyone who insults their religion or their prophet. These threats have been accompanied by murders in several parts of the world. As a result, publishing houses have been reluctant to include material that might give rise to threatened violence. Following the publication by several Scandinavian newspapers of cartoons that depicted Mohammad, there were threats of death and acts of violence. This led the Yale University Press to decide not to include these cartoons in an academic book about the controversy. This act of censorship was not brought about by any governmental pressure, since the First Amendment would clearly protect the publication of the cartoons. It was brought about by the self-censorship of the publishing house growing out of fear that publication would result in violence. This phenomenon gives those who threaten violence an effective veto over what can be published in the United States.
The opposite side of the private self-censorship coin is the private circumvention of governmental censorship. Private hacking groups such as “Anonymous” will do everything in their power to thwart governmental censorship of any kind, including the use of unlawful means, even violence, to subvert or retaliate for legitimate restrictions on publication. This means that the future battles for freedom of speech are likely to be fought on private as well as governmental battlefields and may well involve violent actions on all sides.
The future battlefields will also be international, since the internet respects no national boundaries. This new phenomenon has resulted in efforts to internationalize the censorship of material deemed offensive to Islam and other religions. Various agencies of the United Nations have proposed, in the name of “multiculturalism,” severe restrictions on the right to criticize controversial cultural and religious practices deemed sacred by some and offensive by others. Eternal vigilance is essential to the preservation of rights that many Americans take for granted. The struggle for freedom of speech—like the struggle for other liberties—never stays won.
On balance, the First Amendment remains relatively healthy and vibrant in America and continues to serve as a model for many emerging democracies. The same cannot be said about our criminal justice system, to which I now turn.
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