Power To Learn: Freedom Chat

PAUL K. McMASTERS
First Amendment Ombudsman
The Freedom Forum

Paul McMasters, one of the nation's leading experts on First Amendment issues answers student questions in October 1999. Click here to learn more about Mr. McMasters.

Question: Can you print curses on the front page of a newspaper?

Answer: Under the First Amendment, the editors of the newspapers can print curses (swear words or profanity) on the front page of a newspaper. Most do not choose to do so, however, because it would offend most readers and in most cases it is not necessary. There are times, of course, when it might be necessary to publish curses on the front page to make a major news development understandable.

Question: Should the government be allowed to prohibit the right of people to assemble, even if the basis of the gathering is peaceful, if it has reason to believe that danger may exist?

Answer: The government has the right to regulate the time, place and manner of such things as marches and demonstrations, even though the First Amendment protects the right of peaceful assembly. Hundreds of local communities have passed laws that impose curfews on young people, for example, subjecting them to being picked up by the police if they are out on the street after certain hours. Some groups have challenged these curfew laws in court on behalf of young people and have won in some cases and lost in others.

Question: When was the first amendment created?

Answer: The First Amendment was ratified as part of the first ten amendments to the U.S. Constitution on December 15, 1791. These ten amendments were known as the Bill of Rights.

Question: How come we have that amendment and who made it up?

Answer: The author of the First Amendment was James Madison, sometimes know as "the father of the Constitution." During the drafting of the Constitution, Mr. Madison was in constant correspondence with Thomas Jefferson, then serving as ambassador in France, who argued for the inclusion of First Amendment and other individual liberties in the Constitution. Mr. Madison at first felt the Constitution was complete without the Bill of Rights, but there was great public pressure for guarantees of individual liberties at the time, so Mr. Madison changed his mind and wrote the amendments that would become the Bill of Rights.

Question: Why did someone come up with the idea for the first amendment? What happened?

Answer: Many state constitutions at the time the Constitution was written had provisions for freedom of the press, freedom of speech, and freedom of religion. This tradition of fundamental freedoms for the individual had grown out of the Age of Reason. Since such rights were not enumerated in the Constitution, many people at the time said they would not ratify the Constitution unless there was a promise that the Bill of Rights would be added. The Constitution says what the government can do. The Bill of Rights says what the government cannot do when it comes to individual freedoms.

Question: Why do some students wear school uniforms? And do they like it?

Answer: Some educators and parents believe that school uniforms create a better atmosphere for learning in our schools by reducing competition and distraction in the way students dress. Sometimes, school dress codes raise First Amendment concerns because they infringe upon freedom of thought or speech. For example, a dress code that punishes students for wearing a religious symbol or a T-shirt with a political message would violate the First Amendment. If a dress code is directed only at safety and disciplinary considerations, it generally does not violate the First Amendment.

Question: When people use the first amendment to try to anger other groups of people, should that be against the law?

Answer: The U.S. Supreme Court ruled in 1942 (Chaplinsky v. New Hampshire) that the First Amendment does not protect "fighting words," meaning language in face-to-face encounters that might provoke actual violence between individuals or groups. That decision has been interpreted narrowly over the years, since most speech that is meaningful does tend to anger someone. Even so-called "hate speech" directed at groups based on their race, color, creed, ethnicity, religion, gender, sexual orientation, disability, and so on, has been considered protected speech under the First Amendment in most situations. Racial, religious and sexual harassment in such areas at the workplace or classrooms, however, is not protected by the First Amendment.

Question: Is a person who writes graffiti on walls covered under the First Amendment rights?

Answer: Only if the "walls" have become something called a "public forum." In other words, if the owners (whether government or private individuals or businesses) of the walls have said, directly or indirectly, that they can be used for the posting of graffiti it would be difficult to make a case that some graffiti is not allowed. Graffiti cannot be banned based solely on its content. It can be prohibited under laws concerning the defacing of public property, vandalism, etc.

Question: Can children divorce their parents?

Answer: That is not a First Amendment issue, and I am not qualified to answer this question. Sorry.

Question: Did you ever write a book? If you have what is the title?

Answer: I have never written a book myself, but I have contributed chapters and essays to several books. (See next answer.)

Question: In your previous writings on the First Amendment rights, is there a specific book you have written about this and, if so, what is the title?

Answer: A just-published book by Tom Dickson, "Mass Media Education in Transition: Preparing for the 21st Century, has an essay by me. I have a chapter entitled "A First Amendment Perspective on Public Journalism" in a book edited by Jay Black called "Mixed News." In addition, I write articles for newspapers, magazines and journals. If you check out my weekly column, which appears online at www.freedomforum.org, you will see that I write on free speech and free press issues and quite frequently on the First Amendment rights of young people.

Question: Do you think kids should have a choice of what they learn?

Answer: Certainly, I believe that students - and their parents -- should be consulted about what they learn, but because young people still are learning the ultimate choices about what is taught in our schools must be made by teachers and professional educators.

Question: Why do you answer these questions for kids?

Answer: Too often, young people across this nation are considered only sort-of citizens when it comes to the First Amendment. They are denied full rights under the First Amendment, so I am worried that they will learn the wrong lessons about the First Amendment or no lessons at all. I firmly believe that young people should learn why we have a First Amendment early on so that once they take their places in the adult community, they will have that in mind when confronted with challenges to freedom of speech, press, religion, assembly and petition. It is important for young people to understand that the First Amendment was not written to protect speech that we all find acceptable. That speech needs no protection. Rather, the First Amendment was written to protect speech on the fringe - the speech of the radical, the revolutionary, even the rascal. We endure and tolerate such speech, even when it offends, or insults or threatens, because that is the only way we can adequately defend our rights and fully guarantee freedom and equality for everyone.

Question: Do you think the press goes too far when they hound and follow celebrities and their families?

Answer: Quite often, journalists and news photographers do go too far in their pursuit of information about celebrities and famous people. But we must be very careful about passing laws that restrict the ability of the press to gather news, even news about public figures. Famous people, especially elected officials, have a great deal of power to influence public policy and the rights and freedoms ordinary citizens enjoy. So what they do and how they live their lives is not just interesting to us but important, too.

Question: What makes people want to change, or amend our constitution?

Answer: Sometimes, there are some things protected by the First Amendment or prevented by it that people want to change. For example, burning the American flag as a form of political speech is protected by the First Amendment. But most Americans are deeply offended by disrespect to our flag. Some of them want to actually change the Constitution to make that illegal. The First Amendment prevents public school officials from directing prayer for students. Many Americans and religious groups would like to change the Constitution so that official prayer would be allowed. It should be pointed out that prayer in public schools is allowed as long as students initiate it. However, the First Amendment requires the separation of church and state, and since teachers and officials in public schools are agents of the government, they are not allowed to direct or require prayers.

Question: What do you think about the Brooklyn Museum of Art showing the inappropriate art? Do you think it was a First Amendment [issue]? Why or why not?

Answer: There are two distinct issues involved in the recent controversy over art being displayed at the Brooklyn Museum of Art that many people found offensive. The first issue is whether government (meaning the public) should be required to fund such art. The second is whether the government can censor such art if it is funding it. The real First Amendment concerns arise in the second issue. If government chooses to fund art, then it must be very careful in trying to censor art based on its content or message.

Question: Can anyone write what ever they want in a newspaper?

Answer: Yes, newspapers can publish anything they want, because the First Amendment very carefully guards against "prior restraint," which is the prevention of speech before it happens. However, that does not mean that a newspaper's owners or editors cannot be punished after something is published. Things that can be the subject of a lawsuit or prosecution include obscenity, libel (which is false or defamatory information about individuals), or secret information that could harm our national security.

Question: Is the first amendment only for the American people? Do other countries have their own first amendment laws?

Answer: Some countries have constitutional provisions protecting some speech, but no other country has the equivalent of the First Amendment and its broad protections for speech and belief. It is unique all over the world, indeed unique in all of history.

Question: Does every body have to say the pledge of allegiance in school?

Answer: No. The U.S. Supreme Court ruled in 1943 in the case of West Virginia Board of Education v. Barnette that students could not be forced to recite the pledge of allegiance.

Question: Why do we have to say the pledge everyday in school?

Answer: Some educators believe that the pledge of allegiance helps students understand the importance of patriotism and loyalty. Paradoxically, part of being an American is the right under the First Amendment of individual conscience (freedom of belief). Thus, the Supreme Court wrote in the Barnette decision: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Read Paul K. McMasters's Biography