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 trouble-making 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.
Just as in the adult press, not only editors are affected when censorship and the threat of censorship leads to only "safe" reporting. In his 1983 book, Freedom of the High School Press, Nicholas Kristof emphasized—and the situation is no better now—that most high-school papers "purvey only pablum.…The students shy away from conflict and controversy and learn to be subjects rather than citizens."
Not only the First Amendment is in question, of course. One morning, at a college in Iowa, I was speaking about the growing FBI use of undercover crooks in stings and scams. Afterwards, a young woman came over and said, "I'm so glad you mentioned the Fourth Amendment. I had never heard of it before."
In 1984, Stanley Elam, a former editor of Phi Delta Kappan, a justly prestigious journal on education, decided to examine in that publication how well present-day youngsters understand their own and others' rights and liberties in comparison with the American young of the 1950s. Elam polled high school seniors in 26 states, representing all regions of the country. He compared their responses with the results of a national Purdue Youth Opinion Poll taken in 1951 of members of the high-school class of 1952.
"It is more than a little disconcerting," Elam noted, "to find a larger percentage of the class of 1984 than of the class of 1952 willing to allow a police search without a warrant, to deny legal counsel to criminals and to accept restrictions of religious freedom. It is also discouraging to see so many youngsters uncertain of so many traditional freedoms.…Most of those uncertain youths will have the privilege of voting in a presidential election during the same year in which they graduate from high school. They ought to be more vitally aware of their heritage of freedom than they are."
As for the part of their heritage that is freedom of expression, among the hordes of young Americans who have never learned how that principle actually works was a group of students at the State University of New York at New Paltz. A couple of years ago a political-science professor there decided it would be instructive for the students to have a chance to see and debate a representative of the South African government. It was one thing to read about that racist regime, the professor thought, but the students would have a clearer sense of the white ruling class there—its ways of thinking and its sense of the future—if they were exposed to a South African official.
The professor invited a member of the South African diplomatic corps to come to his class. But the diplomat never got a chance to be heard. A crowd of students, white and black, roared and screamed at the South African as he came into the Humanities Building. In the lecture room, although there were students who did want to hear him, the others kept making so much noise that the South African finally had to leave because he was drowned out every time he tried to speak.
As the South African left the campus, a student shouted, "Let the word go out that students on this campus do not allow a racist to speak here!" The word did go out—including to the South African government—that there are Americans, just like the government of South Africa, who suppress speech they don't like.
The logical place for students to learn how to make the First Amendment, and our other liberties, personal is in school. And around the country, there are a relatively few teachers who themselves feel so strongly that this heritage needs constant care that they are able to give the principles of liberty immediacy and personal relevancy. But in most classrooms, the dutiful, routine discussion of the Constitution and the Bill of Rights has as much impact as a lesson on the mean annual rainfall in Jalalabad.
There are, however, alternatives—as varied as the ingenuity and stick-to-itiveness of citizens concerned with the Constitution and wanting to pass it on. For one luminous example, there was a Bill of Rights Day in Charleston, West Virginia. I was there, and it was an experience that might well have delighted Mr. Jefferson and Mr. Madison.
A group of local citizens and the state chapter of the American Civil Liberties Union had decided to introduce high-school students to their liberties. It had taken about a year for the Board of Education to agree to the release of the students for the day. Members of the board had been apprehensive. Something about that phrase "Bill of Rights" made them uneasy.
For a week before Bill of Rights Day, the high-school seniors had been assigned readings and had engaged in class discussions of freedom of speech and press; the tangled relationship between the free-exercise-of religion and the establishment clause; cruel and unusual punishment; the occasional difficulties in having both a free press and fair trials; and other dilemmas of liberty. On the day itself, the youngsters came, 150 of them, from the city of Charleston and also from "the hollers," the enclaves within the steep hills outside the city. They were divided into 12 groups. In each, the students were given both actual case histories and hypothetical. In some cases, the students took roles—as in Fred Friendly's public-television series on the Constitution and on health care.
During the course of the day, there were students imagining themselves cops confronted by deliberately provocative demonstrators advocating—but not engaging in—violence. Other students became parents insisting that certain books must be removed from the school because they were plainly obscene, unpatriotic, and blasphemous. Still other students transformed themselves into librarians trying to point out to individual parents and to organized groups of purgers that if library books and textbooks were purchased according to the majority vote of the community, only the least controversial books would survive and the students' minds would have all the strength and resilience of cellophane-wrapped white bread.
In the group I was working with, the dialogues became quite intense, not only during the working-out of the cases but also during the breaks in the discussion. And I saw much the same level of intellectual and emotional energy in other groups around us.
By early evening, I was through, the students in my group having put the remaining questions to a vote to see if anyone had turned around over the hours. Most had on one issue or another. A number of other groups, however, were still trying to make sense of the Constitution and of each other. I walked over to one of the groups. The students there were being told by a teacher leading the discussion that a bunch of West Virginians, members of a Communist splinter group, had decided to march up and down the streets of Charleston, brandishing red flags. And they were going to carry inflammatory, insulting signs denouncing the president and the Constitution and calling for the overthrow of the government.
The question posed to the students: Do these Communists, even under the First Amendment, have the right to so grievously offend folks on the streets of Charleston? And since they would be calling for the overthrow of the government, was the Constitution intended to be a suicide pact? Was the Constitution intended to give the sworn enemies of our liberty the freedom to gain converts who would help destroy that liberty?
Furthermore, if the march were allowed, some of these Communists—as had actually happened during an aborted demonstration by the Communist Workers Party in Charleston a year before—would surely be beaten up. With this high probability of violence, including probable violence to innocent bystanders, isn't it more vital to protect the public peace by prohibiting the march than to allow it?
The students argued loudly. I was particularly watching a slight young woman with thin brown hair, maybe 17, who had said very little the whole day and had not yet said a word during this discussion. As she listened, looking like a young Sissy Spacek, she was biting her lip; and suddenly, in a soft voice—which somehow silenced all the others—she started speaking very slowly, more to herself than to the rest of us.
"Well," she said, rubbing her nose, "I was there last year when they beat up those Communists. I didn't think about it much one way or another." She bit her lip again. "If I had, I guess I would have done some beating up myself. But now," she screwed up her face, "well, after all I've been hearing and thinking today, well, maybe they do have a right to go out there and march."
She paused, and said even more slowly, "And I guess they got a right not to get beat up doing it, no matter what they say, no matter what their signs say." She shook her head. "It's hard. But, well, I guess I don't see no other way."
The young woman slipped into the background as another senior, shaking his head in vigorous disagreement, said, "No, I don't see that at all. Communists have no rights. They want to take away our rights. It's just plain stupid to let them go around doing that. What I say is send them back where they came from!"
"But they're all West Virginians, remember?" said the teacher leading the discussion.
The young man thought about that for a few seconds and said, "Well, let's kick them out of West Virginia. Let's send them to New York or Russia or someplace like that."
The debate became more heated, until finally there was a vote, and a majority of the unit sided with the difficult conclusion of the shy young woman who had not said another word.
I was standing next to a woman who lived in Charleston and had helped organize this Bill of Rights Day. "You see," she said "if you just give them a chance to think about these things and work them out inside their heads, this liberty stuff comes alive. Of course, one day isn't enough, but you start any way you can. Why isn't this, or something like it, going on all over the country?"
Why indeed? While there is still, maybe, time.
Nat Hentoff is a staff writer for The Village Voice and The New Yorker and a columnist for the Washington Post.