A very very short and modest touch on an immense topic:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This is the First Amendment to the United States Constitution and one of the most radically debated topics in the history of our country. The right of U.S. citizens to express themselves freely has been controversial danger to our society, while simultaneously the stifling of expression has often reflected the divisive and harmful behavior human beings can display in defense their personal beliefs. To say that a single brush can be used to paint every decision regarding the freedom of expression would be an egregious error of human judgment at the very least. This innate nature of expression has and will continue to stir controversy at the highest judicial level. Indeed the First Amendment has seemed to have affected nearly every fringe of societal development in the United States.

Without exception every court case in which the First Amendment has been a controversy was derived from genuine concern for public well being. Opposite ends of the political spectrum have been incited to furious debate over the employment of the First Amendment and what is good for the future of the United States. It is a roller coaster of moral decision making, winding back and forth between the heavy left and hard right, usually leaving the Supreme Court with the ultimate burden of moral decree. The definition of morality can be summarized by the consequences our actions have on other people. This definition however is most often gray, and usually accompanies equally compelling arguments on both sides.

One of the most recent topics of First Amendment controversy came along in 1999 with the advent of pornography into cable television. Section 505 of the Telecommunications Act of 1996 requires cable television operators providing channels “primarily dedicated to sexually oriented programming” either to “full scramble or otherwise fully block” those channels or to limit their transmission to hours when children are unlikely to be viewing (between the hours of 10 p.m. and 6 a.m.). In the case of United States v. Playboy Entertainment Group Inc. the adult entertainment company asserted that the specifically regulated time slots for adult entertainment was in violation of the First Amendment. The court ruled in favor of Playboy, stating that there lied more constitutional ways to regulate the content of cable television in section 504 of the '96 Telecommunications Act. 504 requires a cable operator “upon request of a cable service provider...without charge to full scramble or fully block” any channel the subscriber does not wish to receive.

It is widely understood that the ruling was intended to enable parents to protect their children from harmful viewing material such as The Playboy Channel. It is indicative however of the type of controversy that usually accompanies First Amendment court cases. Most adults would find the content of Playboy T.V. highly offensive and the invasion of pornography into their homes was an immensely controversial issue, however Playboy's content had First Amendment protection. As Supreme Court Justice Anthony M. Kennedy put it:

“The constitution exists precisely so that opinions and judgments, including aesthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.”

Media outlets by far carry the most potential for First Amendment controversy because of their propensity for overall public harm as well as public defamation of character as addressed in Hustler Magazine, Inc. v. Falwell.

Pornographer Larry Flint faced a defamation suit in 1988 after his Hustler magazine published a parody of a liquor advertisement in which evangelist Jerry Falwell recounted his “first time” as a drunken encounter with his mother in an outhouse. However undoubtedly false the implications of the cartoon were, a unanimous Supreme Court decision ruled in favor of Hustler stating that a public figure such as Falwell would have to show actual malice in the publication of the satirical cartoon. Citing the cartoon as a distant cousin of a political cartoon the court maintained that such satires have “played a prominent role in public and political debate.”

Expression in the press is one of the most reoccurring themes in defense of the First Amendment. The rule for the press, much like the other entities protected in the First Amendment, is pretty clear: do not abridge the freedom of the press. Much like the other aspects of the First Amendment, it is usually people of influence, whatever their nature may be, that stand to lose the most ground from discrediting press coverage. The situation was no different in one of the most oft referenced First Amendment decisions in the history of the U.S.: Near vs. Minnesota.

The state of Minnesota in the 1920's was a hotbed for organized crime and political corruption. As described by Lincoln Steffens in The Shame of the Cities Minneapolis was “where the people were sober, satisfied, busy with their own affairs, and left the law enforcement and the running of the city to the corrupt politicians and strong-armed gangsters.” Jay M. Near was Editor and Publisher of the Saturday Press, a seedy and short-lived gossip publication that was a quasi whistle blower to the corruption that was taking place in Minneapolis. His op-eds indicted every public official in Minneapolis, accusing the mayor and others of mob affiliation. Over the four months of the publication's existence, Near became increasingly radical and bigoted in his accusations, publishing ant-semitic barrages and making fallacious claims about the interior government without substantial evidence.

In November of 1927 a legal complaint was filed in the Hennipin District Court accusing the Saturday Press to be in violation of the Public Nuisance Law that was pushed through Minnesota Legislature in 1925. It states:

“Section 1. Any person who, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away (a)an obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a malicious, scandalous and defamatory newspaper, magazine or other periodical, is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined(shut down), as hereinafter provided...In actions brought under (b)above, there shall be available the defense that the truth was published with good motives and for justifiable ends...”

On June 1, 1931, the U.S. Supreme Court, in a five-to-four decision, said that it agreed with Near:

“The fact that for approximately one hundred and fifty years there has been almost and entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right. Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The general principle that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the provisions of state constitutions...For these reasons we hold the statute...to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment.” The judgment however was later overturned and prior restraint was born. Prior restraint is when the freedom of the press is stymied prior to publication. This issue arose later in Nebraska Press Assn' v. Stuart, The New York Times Company v. United States and Bantam Books Inc. v. Sullivan.

Considering this has been albeit not the most divisive issue in the history of our country, it would certainly break the top five, the First Amendment is just as often capable of reflecting the beauty of our democracy as it is being divisive. It is, after all, the abundance of opinion that distinguishes us from a majority other countries. Sure most of the free world has adopted some form of democracy, however ours was founded on this very principle, and it is reflected in our history. These rights are infinitely important if we ever want to continue our way of life as it is in constant jeopardy every day; the right keep public discourse free of dogmatic religious persuasion, and likewise the right of each man to perceive religion in any context he wishes, to right to gather and focus our ideals into a peaceful collective effort if we deem necessary, the right of journalists and other government whistle blowers to give the public the truth, and probably the most precious: the right to speak out against the government or anyone else whom you feel has injured your personal beliefs. There isn't an American who would recognize their society if these rights were to suddenly disappear. So every debate, every argument, every time two Americans have divided over what they feel is better for their family, has enabled us to maintain our society. That, above anything, is worth fighting for.