Guest commentary: A year-end review of First Amendment status

Guest commentary: A year-end review of First Amendment status


Americans know the First Amendment guarantees free expression through speech, press, religion and assembly. It is harder, however, to know how that noble concept gets operationalized in the real world. Public pressure and courts together work to make sense of free expression, but it is a never-ending challenge.

We know free speech lands somewhere between an expression free-for-all and absolute government oppression. Within those parameters, however, First Amendment confusion reigns. A review of free speech wrestling matches in 2013 demonstrates this confusing state of affairs.

— The New York Court of Appeals ruled Fox News reporter Jana Winter does not have to return to Colorado to explain how she acquired confidential information regarding the Aurora movie shooter. Any non-reporter would have been forced to go. It's also not clear how New York courts can rule about news gathering done in another state.

— Colleges are supposed to be places for open discourse. But at Modesto Junior College, a student was stopped from distributing copies of the Constitution on Constitution Day. The reason? He wasn't in a designated area, and he hadn't registered in advance. At Central Michigan University, a pro-life display was torn down. At University of California, Berkeley, the student government voted to ban the term "illegal immigrant" from campus discussions. And at Brown University, NYC's police commissioner Ray Kelly was shouted off the stage by protesters.

— "Duck Dynasty" star Phil Robertson was sanctioned by A&E for his social commentary in a magazine interview. The Robertson clan makes money for A&E by being authentic, unscripted people, but A&E punished Phil for articulating his authentic opinions.

— A Utah woman was assessed a $3,500 fee by an online company when she posted an Internet critique of the company for not delivering a product she ordered. The company says the charge is part of the "non-disparagement clause" online customers agree to when placing an order. The woman hasn't paid the fee, and now her credit is wrecked.

— The Elmhurst Public Library rebuffed patrons who criticized the library for purchasing video games intended for mature audiences. The director said mature video games were not judged differently than other materials, and content is not a factor in acquisition. Thus, all content is equal in the eyes of this library. Dr. Seuss is the same as a Bulletstorm video game.

— Speaking of libraries, the American Library Association continues with its annual Banned Books Week. The ALA is particularly upset with schools that use their own judgment to limit or prevent access to certain materials. Of course, such books aren't really banned since readers can still get the books at a bookstore, online or another library. A banned book would be unavailable in any context. To follow ALA guidelines, every book ever published would have to be in every library.

— The National Football League rejected a commercial that gunmaker Daniel Defense wanted to air during the Super Bowl. The ad featured a military veteran talking about the need to keep his family safe, and showed no actual firearms. The NFL is quite OK, however, with commercials for violent movies, alcohol and sexual dysfunction. Halftime shows feature trampy behavior and players uttering f-bombs on live broadcasts, but an ad for a legal product draws a penalty flag.

— The freedom to engage in political dialogue is one of the most sacred aspects of free expression philosophy. But revelations this year showed that the IRS capriciously delayed the applications of political groups, mostly conservative, to gain tax-exempt status, thus keeping those groups on the political sidelines. Lawsuits are underway.

— Then there is the Justice Department snooping into the phone and email records of Associated Press and Fox News reporters, supposedly to track down government leakers. The DOJ is welcome to stop leaks, but leave the press out of the process. Such tactics chill the ability of a free press to do its watchdog function over government. Constitutional framers would be appalled.

Free speech is a concept for which few people have absolute support. Most every American wishes some expressions could be stifled. Those stifling efforts will no doubt continue into 2014 and beyond. The Supreme Court can't referee every free speech issue. So, many free speech matters will be decided by whichever social forces prevail in suppressing messages.

Jeffrey M. McCall, a native of Champaign, is a professor of communication at DePauw University in Greencastle, Ind., and author of Viewer Discretion Advised: Taking Control of Mass Media Influences. Contact him at On Twitter: @Prof_McCall.

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Nice Davis wrote on December 29, 2013 at 9:12 am

This would have been an interesting guest commentary, had it been written by an attorney, judge, law professor, or indeed anybody with an understanding of what speech the First Amendment actually applies to. Instead we get a list composed primarily of examples outside the bounds of the First Amendment. I hope Professor McCall doesn't do his DePauw students the disservice of teaching them things about the Constitution that aren't true.