By Gene Policinski
First Amendment Center executive director
How will Americans' five basic freedoms – religion, speech, press, assembly and petition – fare in 2007? No answers here; just some of the questions we all should consider.
First, what will the first full term of the Roberts Supreme Court mean for free expression and religious liberty? In recent years, the Court has been in a relatively quiet First Amendment period, parsing some difficult questions in specific cases without offering sweeping new interpretations for the generations.
Even as the justices spend more time in public discussing general issues, the possibility of cameras in the federal courts seems as remote as ever. The Court did agree this month to hear an Alaska case involving student speech – signaling it may address remaining 20-year-old issues of how far school administrators may go in restricting speech they consider inappropriate, vulgar or dangerous. And will this be the year for major Court action in the growing national debate over religious exemptions to laws and regulations in areas like zoning, taxes and employment? And as the next presidential election looms, what will the Court do with an increasingly tangled set of campaign-finance laws and regulations?
What will be the impact of the switch to Democratic majorities in both the U.S. House and Senate? Under GOP leadership, Congress took up anti-terrorism legislation such as the Patriot Act provisions affecting libraries and user records, frustrated bipartisan moves to create a federal "shield law" for journalists, initiated several attempts to regulate or restrict Internet content, and increased the power of the Federal Communications Commission to punish "indecent" programming. Will Democrats roll back those limits, as some predict – or find limits on popular culture just as appealing at the ballot box as their predecessors did?
Will Democratic leaders resist the political tug of restrictive First Amendment legislation rooted in the fear of terror attacks? Will they put aside for a time what has been, for nearly a decade, the annual Flag Day rhetoric and debate over whether the nation needs to amend the Bill of Rights to provide for punishment of rare instances of flag-burning, which are now permitted as an ultimate example of free speech?
How will a growing "middle" in American political life – seen in the mid-term elections of 2006 and in the First Amendment Center's annual State of the First Amendment survey – affect public debate on freedom issues? As my colleagues at the First Amendment Center and others have observed, a growing number of Americans seem to reject extreme positions of both the far right and left – moving toward consensus and common sense: Public schools ought to be able to recognize and include a variety of music and programs at Christmastime as long as no one religious view predominates or gets official endorsement. The government ought to be able to keep some secrets, but citizens also need a vigorous press that provides a real public accounting of the "war on terror."
How will the nation's free press – battered by technological and economic changes and pursued by prosecutors in a passel of cases – fare over the next 12 months? For First Amendment advocates, much hinges on how the courts approach the ongoing dispute over confidential sources and so-called "reporter privilege" – a right to refuse when called before a judge or grand jury and asked to name names.
As we enter 2007, there's a new twist in the highest-profile collision between journalists and government officials in the past few years over confidential sources. Two news organizations now claim that Special Counsel Patrick Fitzgerald never needed the testimony of reporters from Time and The New York Times when investigating a leak of secret information because he knew the source of the leak all along. Judith Miller of the Times spent 85 days in jail for refusing to testify. Time magazine's Matt Cooper testified under a court order. And as the fighting continues in Iraq and Afghanistan, more and more "secret" documents about the conduct of those wars are surfacing – with some crying "treason" when the press reports on the information, even as defenders cite the public's need to know.
The 2006 State of the First Amendment survey, released about four weeks ago, found in a nationwide telephone sampling of 1,000 adults that:
– Just 18% of Americans, fewer than at any time since the survey began in 1997, said "the First Amendment goes too far in the rights it guarantees." The all-time high of 41% saying Americans had too much freedom came in the 2002 survey, conducted in the wake of the Sept. 11, 2001, terror attacks.
– 66% of Americans agree that newspapers should be allowed to publish stories that criticize the government, even during wartime.
– 51% support the right of newspapers to publish sensitive and classified information when "it exposes government wrongdoing," with 12% not even requiring that reason.
Are those survey numbers surprising in a nation at war abroad and in debate at home, or should they be expected for the same reasons? Now that's a question for 2007.