At the beginning of The Paper, his new book on the history of the New York Herald Tribune, Richard Kluger says of the First Amendment: "If this singular blessing were not long and well established, it is uncertain as of this writing whether the American people would now authorize its creation."
Kluger assumes that because the First Amendment is 200 years old, it is sufficiently well established to survive the indifference or hostility of the American people. Is that a safe assumption?
To begin with, I think he is right in speculating that the First Amendment, as written, would be voted down now by a considerable majority of the populace. For it to be approved, that "singular blessing" would have to be festooned with limitations-no racist speech or sexist speech would be protected, nor would speech endangering the "national security" as determined by government officials who would not have to reveal their reasons for insisting on secrecy.
But since we are not going to have a popular vote on the First Amendment-unless the advocates of a Constitutional Convention prevail-is Kluger's confidence justified that these 45 words will continue to protect speech, press, assembly, and freedom of religion because they are "well established"?
Before we go farther, what ought to be remembered is Judge Learned Hand's grim warning: "Liberty lies in the hearts and minds of men and women; when it dies there, no constitution, no law, no court can save it."
A teacher I know in Montello, a small town not far from Madison, Wisconsin, understood what Learned Hand meant. In that town, a group calling itself Concerned Citizens, intent on purifying school libraries, had removed 33 books, among them the collected works of Judy Blume and Paul Goodman's Growing Up Absurd. Arrayed against the Concerned Citizens was an ad hoc coalition of teachers, librarians, and libertarians in town. The students, around whom the battle was swirling, were simply spectators, watching the course of combat with varying degrees of interest.
Eventually, the Concerned Citizens were defeated, and the books were returned to the libraries. I expected my teacher friend to be exultant. Instead, she was brooding. The other side would surely regroup, she said, but she expected that and was prepared to fight again. "You see," she said, "the First Amendment is personal to me. It nurtures me."
She was brooding, however, because she had a strong sense that the First Amendment, and the rest of the Bill of Rights, was not personal to most of the students in Montello. Indeed, except for her own students, maybe, she wasn't sure that many of those in Montello even knew what was in the Bill of Rights. "If they don't care, or don't know, about their own rights or anybody else's," she worried, "they could lose them when they grow up."
Here's how her prophecy can be fulfilled. The legal phrase that triggers lawsuits to keep the First Amendment working is "state action." When an agent of the state-a legislator, a high-school principal, a police chief-acts to shut off First Amendment rights, the battle lines are clear. But while the state is indeed often the most visible danger to those liberties that make all others possible, Learned Hand was right. The ignorance and indifference of the citizenry can greatly ease the end of liberty. Over time, a populace to whom those freedoms are without value-for they have not become "personal" to them-can sleep through the death of the First Amendment without even knowing that it has expired, as the state moves against free speech and press. That's why, like the teachers in Montello, I worry about the next generation, and the ones after that, caring enough about the First Amendment to know how vulnerable it is.
In my own case, all through high school and into much of college, I was unaware of the First Amendment except as some words in some book under glass. What awakened me was an order by the president of Northeastern University, where I was editor of the school paper, to cease and desist from troublemaking journalism or leave the paper. I left the paper, and ever since then I have been passionately interested in the First Amendment.
Now I spend a fair amount of time in junior high schools and high schools around the country, sometimes to talk about writing, sometimes to talk about the First Amendment. Wherever I've been-from upstate New York to Kansas to Virginia-the ignorance of most of the young about any part of the Bill of Rights, including the First, is startling. Still startling. I have yet to get used to it. In fast-track high schools, where the students are on the way to glistening law firms or medical or academic careers, the kids are as deprived of knowledge of their birthright as are students in schools where many of the parents are new to this country.
This means that their teachers have not made the Bill of Rights meaningful. Oh, the teachers know the words, but little of the passionate history and the crucial lesson that if this system is to work, the most odious and outrageous speech has to be as fully protected as the ideas that the teacher or the principal or the local preacher or the local atheist holds most dear.
One Sunday night, I was on a radio call-in program from Indianapolis. High-school students from all over the state got on the line because I was bringing the news that high school editors, like adult editors, have First Amendment rights. For over an hour I heard horror stories that might have made John Peter Zenger weep. Kids had been summarily suspended for printing stories that were not obscene or defamatory or likely to disrupt the school. (Those are the three exceptions to the First Amendment rights assured public-school students by the Supreme Court in the 1969 case Tinker v. Des Moines Independent School District.)
Other high-school editors were told by principals that colleges to which the students were applying had been told they were troublemakers and worse. Others had lost whatever school privileges there were to lose.
None of them had ever heard of the Tinker case. None of them had the slightest notion that they had rights, that they could get free American Civil Liberties Union lawyers to sue the principals-and win.