Given the emphasis in the First Amendment on Congress as the agent of action, it is not surprising that free speech treatises and textbooks devote page after page to heavy-handed congressional efforts to regulate speech like the Alien and Sedition Act of 1798, the Espionage Act of 1917, and the Smith Act of 1940. Some commentators have already suggested that the Patriot Act, a measure adopted with little discussion in response to events on September 11, will some day fall into this ignominious category of unfortunate legislation.
With the decision in Gitlow v. New York (1925), the Supreme Court extended First Amendment to laws adopted by state legislatures. In the years that followed, the Court has considered state laws that criminalize obscenity, restrict commercial speech, impose speech codes on college campuses and more. Not surprisingly, these legislative initiatives have been subject to exacting constitutional scrutiny as the courts carefully balance the freedom of expression against competing societal interests.
This sort of historical narrative suggests that the greatest threat to freedom of expression is from an overly zealous government. Events of recent weeks, however, remind us that politicians are not the only dark cloud looming on the horizon. As most football fans know, Rush Limbaugh was forced to resign his position as an analyst for ESPN for disparaging comments he made about Donovan McNabb, the starting quarterback of the Philadelphia Eagles. In the words of Limbaugh, "I don't think he (McNabb) has been good from the get-go. I think what we've had here is a little social concern in the NFL. I think the media has been very desirous that a black quarterback do well. There is a little hope invested in McNabb and he got a lot of credit for the performance of this team that he didn't deserve. The defense carried this team."
The response to Limbaugh's remarks was immediate and visceral. He was promptly denounced by everyone from McNabb's loyal teammates to NAACP President Kweisi Mfume to Democratic presidential candidates Wesley Clark, Howard Dean and Rev. Al Sharpton. While Limbaugh doggedly stood by his opinion, he nonetheless admitted that he had become a "distraction," and therefore resigned his position on Sunday NFL Countdown. Relieved executives at ESPN quickly accepted as the network moved to distance itself from the controversy and protect program ratings and advertising revenue.
I do not want to defend Limbaugh as either a football analyst or a political commentator. As I reflect on his short-lived ESPN career, however, I cannot help wondering what this unfortunate episode says about our precious First Amendment freedoms. If we are truly committed to freedom of expression, we must be willing to listen to a broad range of opinions, both the pleasing and the odious. At the same time, we must recognize that public opinion can be fully as powerful a censor as overt restrictions on expression. In this instance, Limbaugh was silenced by his critics just as effectively as if he had been punished by the government.
The strongest case for freedom of expression lies not in histories or legal treatises; rather it lies in our belief that such freedoms are relevant to our daily lives. While it is intellectually convenient and ideologically comforting to justify the First Amendment by appeals to the framers, American history, or judicial precedents, freedom of expression is meaningful only insofar as we are actually willing to tolerate the occasional boorish speaker with an offensive message.
In an oft-quoted passage, Judge Learned Hand (1944) wondered "whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."
Dale Herbeck is a professor and chairman of the Communication Department.
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