Issue Date: June 29, 2003

The USA WEEKEND --
First Amendment Center Poll

5 tests of your freedoms

Speech. Religion. Press. Petition. Assembly. You learned all those First Amendment rights in basic civics class. But how well do you really understand them? The results of our scientific poll may surprise you.

As the country prepares to celebrate its 227th year of independence and as today's Iraqi citizens explore their first, Americans have every reason to embrace their most fundamental freedoms with joy and pride.

The USA, the first nation to be founded on principles of liberty and justice, is fueled by freedom, particularly the rights guaranteed in the First Amendment to the Constitution. But how well do we understand these basic rights? To find out, USA WEEKEND Magazine and the First Amendment Center commissioned a scientific online poll consisting of a series of hypothetical scenarios. Each was designed to challenge one of the five freedoms set out in the First Amendment: freedom of speech, press and religion, and the right to assemble and to petition government for constructive change.

The poll results clearly show some serious confusion among Americans about their First Amendment protections and how they apply to a diverse and sometimes divided society.

Here, take the poll yourself and test your own answers against the survey respondents' -- and those of Lee C. Bollinger, one of the nation's leading First Amendment experts, president of Columbia University and the author of "The Tolerant Society" and "Eternally Vigilant: Free Speech in the Modern Era".

1 A high school student wears a T-shirt to public school with the words "International Criminal" framing President Bush's picture on the front. The principal tells the student to put on a different shirt, turn the shirt inside out or go home. If those requests are refused, the student will face immediate suspension.

Does the principal have the right to ban the T-shirt?

The expert says: The majority has it wrong. Most people may want to ban the offending T-shirt, but they can't in this case. The First Amendment protects the right of "speech" even when it's symbolic, as when the message is in the form of an image on a piece of clothing. And although many may think the constitutional right of freedom of speech does not reach minors, the Supreme Court has held otherwise.

The landmark case on this point (from the 1960s) recognized the free-speech rights of a 13-year-old to wear a black armband in class in protest against the war in Vietnam. As a society, we have staked our future on a robust right of freedom of expression (even for neo-Nazis and the Ku Klux Klan), and it is inconsistent with that commitment, the court has said, to make it available only when you turn 18 or 21.

Still, nothing in life is absolute, and, contrary to what even a few Supreme Court justices have said, that is true of the First Amendment as well. If a principal can show significant "disruption" as a result of the speech, courts will give more leeway to restrict the speech. The mere fact that other students take offense would not be enough, but spontaneous fighting or outbursts making class discipline impossible very well might be.

A final note: The First Amendment applies only to "state action" and hence to public schools. A principal in a private school can set whatever limits on speech he or she wishes.

2 A town strapped for funds enters an agreement with the community's largest church by which the church will operate the town's failing convention center. The church agrees to raise the money itself to run the center and promises it will not discriminate against any religious, political, racial or other groups that might want to rent it for a fee.

Do you think such an arrangement is allowed under the First Amendment?

The expert says: The answer is no. This is not a good idea for the town, the public, the church or the First Amendment. The amendment's guarantees of religious freedom and free speech prevent the government from favoring one religion over another, so the choice itself may have involved improper bias against other groups who also sought to operate the center. Beyond that, appearances matter enormously here. Just imagine if Central Park were leased to a particular church to "operate." The First Amendment long has required the state to make available certain public property -- most notably, streets and parks -- for citizens to exercise their right of free speech. Although reasonable restrictions can be imposed (for instance, the time, place and manner of expression), the state cannot favor particular speakers or points of view over others.

Furthermore, under the Establishment Clause, the Supreme Court has refused to permit relationships between church and state where there is the appearance of religious endorsement and where the prospects of "entanglement" are great. In this case, despite the church's assurances that it will not discriminate among speakers, we would have to expect an endless series of conflicts and disagreements over whether the church has administered this "public forum" with a religious bias.

What can seem perfectly reasonable in the abstract, as it does to 70% of the respondents, can be filled with latent constitutional problems.

3 A recent decision by the city council to reduce trash pickup from twice weekly to once a week upset one citizen so much that he has posted comments on a local Internet site, using the alias "Angry Citizen." In his comments, the citizen accuses one council member of being a "lying communist." When the councilman learns the identity of the writer, he contacts "Angry Citizen," who quickly offers to post another comment apologizing for his remark. ("Angry Citizen" says he was just upset at that moment.) Dissatisfied, the accused councilman threatens to sue him for libel.

Does the First Amendment protect "Angry Citizen" if the councilman files the lawsuit?

The expert says: The majority got it right this time. The First Amendment's guarantee of a free press does not apply only to professional journalists -- it protects every citizen.

It is exceedingly difficult for a public official to force a citizen to pay damages for a libelous statement. Under the Supreme Court's verdict in "The New York Times vs. Sullivan", the council member would have to show that the statement is false (Maybe he is a "lying communist"), that the statement was one of fact rather than "opinion" (Would the reasonable reader assume this accusation was just the speaker's interpretation of generally known facts, or perhaps just hyperbole?), that the false statement actually injured the council member's reputation, and that the injurious statement was made with knowledge of its falsity or with "reckless disregard of the truth" (i.e., with "actual malice").

Those criteria are nearly insurmountable barriers to a successful lawsuit for defamation. Is this justified? The court's rationale is not a lack of concern for the reputations of public servants, nor a high regard for falsehoods. Rather, the idea is that, because we are committed to living in a democracy where the citizens are sovereign, we need to provide ample space for citizens to engage in public debate without being intimidated about speaking their minds by the prospect of having to defend themselves against lawsuits.

In an imperfect world, someone's rights or interests often have to give way. Here it's the reputation of public officials.

Neither the fact that this statement was made on the Internet nor the fact that it was made anonymously changes the outcome. Generally speaking, the rules in this area of First Amendment protections do not change, whether you are communicating with millions or speaking across the fence to a neighbor.

4 County officials recently have been hounded and harassed at commission meetings by a small number of activists who oppose a county tax increase. In response, the officials have established new rules governing all public appearances before the county commission. Specifically, citizens wishing to speak at commission meetings now must apply seven days in advance for permission to do so and must limit their comments to two minutes.

Do county officials have the right to establish these new rules?

The expert says: Yes, the new rules appear to be fine on their face. Certainly, the county can require speakers to sign up in advance and impose a time limit on each speaker. Nothing in the First Amendment's right to petition for a redress of grievances or freedom of speech prohibits the state from bringing some order to a forum.

What are prohibited, however, are regulations that discriminate against speakers because of the content of their messages. This is where I have concerns. We are not told what the "activists" did that "hounded and harassed" the officials, nor are we told why and how the new rules are a response to that behavior.

So here's the caution: If the activists only criticized the county officials, even if harshly, and if the officials believe that they can use the new rules to treat the "activists" differently because of their criticisms, then we have a very real problem under the First Amendment. The officials may (constitutionally, at least) hope the activists won't have the foresight to apply and to limit their critiques to two minutes at a time -- and thereby give county officials the right to prohibit them from speaking at commission meetings. But they must pursue these wishes in a content-neutral way, applying the same rules to everyone, not just the activists.

5 A citizen who participates in a neighborhood anti-war march learns that the local police department has secretly videotaped the rally and created a file with the names of everyone who participated. Police officials defend their actions by citing the increased possibility of terrorist threats and the needs of national security.

Do you think the police department has the right to videotape the marchers and keep files on them?

The expert says: Yes, it is permissible under the First Amendment's rights of free speech and assembly. As citizens, we have the right to march and to express our views -- however sound, however outrageous. But the government may watch and keep information on us, for good or for bad reasons.

That's not to say doing so under any and all circumstances is a good idea. There is much, in fact, to be said against it, not least because it may have a chilling effect on the exercise of constitutional liberties. But not all government actions that chill speech are unconstitutional, and thus far, at least, the Supreme Court has not declared keeping files on marchers to be an abridgment of the First Amendment.

Everything depends on how the government uses the files. A systematic campaign to discredit its opponents through the partisan use of videos and other information selectively gathered, accompanied by baseless intimations of terrorist connections, could raise an interesting new case under the First Amendment. Certainly, it would be a violation of the spirit of democracy.

This survey was conducted April 21-28, 2003. A total of 517 surveys were completed online by adults age 18 or older. The margin of error is +/- 4%.

Our poll partner, the First Amendment Center The poll for this story was conducted in tandem with the First Amendment Center's State of the First Amendment -- 2003 survey, to be published in the Aug. 1 issue of "American Journalism Review", co-sponsor of the report. The annual survey of the American public also will be available Aug. 1 at www.firstamendmentcenter.org. The First Amendment Center works to preserve First Amendment freedoms through information and education. Based at Vanderbilt University in Nashville, it is an operating program of the Freedom Forum.