First Amednment – USA Gov Policy

To Americans, engaging in free speech is as basic a concept as breathing. That is why the immediate, dire and unprecedented threats to the First Amendment are not taken with any significant level of seriousness.

The concepts enshrined in the U.S. Bill of Rights are under profound attack, by politicians, academics, and the left. In 2012, Sen. Charles Schumer (D-NY) urged “there ought to be limits” on First Amendment rights. At a Senate Rules Committee hearing, Schumer the senior senator from New York, issued the stunning statement that ”The First Amendment is sacred, but the First Amendment is not absolute.”

The assaults first became prominent during the Obama Administration’s tenure in office:

His commissioners on the Federal Communications Commission sought to place federal monitors in newsrooms. His attorney general openly considered criminal prosecution of anyone disagreeing with his views on climate change. He moved to place the internet under international control (which would permit censorship.) The Internal Revenue Service was used a bludgeon against groups opposing White House policies. The Justice Department seized telephone records of Fox news reporters.

The political left did not end their anti-free speech activities after losing the White House, but moved into different spheres of influence. Ari Lieberman, writing for Frontpage correctly noted that “The Left’s assault on free speech is an alarming trend that represents a grave danger to democratic values and principles. They employ code words like ‘safe spaces’ and ‘First Amendment opportunism’ to hide behind the fact that they are tearing apart the very fabric of the United States Constitution.”

In that quest, they have gained notable successes. A recent Campaign for Free Speech (CFS) survey found startling results:

51% of Americans think the First Amendment is outdated and should be rewritten. The First Amendment protects your right to free speech, free assembly, and freedom of religion, among other things.

48% believe “hate speech” should be illegal. (“Hate speech” is not defined—we left it up to the individual participant.) Of those, about half think the punishment for “hate speech” should include possible jail time, while the rest think it should just be a ticket and a fine.

80% don’t actually know what the First Amendment really protects. Those polled believed this statement is true: “The First Amendment allows anyone to say their opinion no matter what, and they are protected by law from any consequences of saying those thoughts or opinions.”

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It’s actually not true. The First Amendment prevents the government from punishing you for your speech (with exceptions such as yelling “fire” in a crowded area to induce panic).

But more broadly, freedom of speech does not mean you are protected from social consequences for your speech. You may have the right to say something extreme or hateful and not get thrown in jail, but others in society have the right to shun you.

CFS provided an explanation for the results:

“… there are at least two factors at play. One is the obvious polarization of politics and the media…Second, we hear much about “hate speech.” …If the government is in charge of determining what is hate speech, then it inevitably becomes political—a weapon that can be used to punish people on the other side of an issue.”

Donald Trump, Jr., in a Hill opinion piece, notes that there is a distinctly partisan flavor to the censorship imposed by social media giants. “As Big Tech’s censorship of conservatives becomes ever more flagrant and overt… Our right to freely engage in public discourse through speech is under sustained attack…… we now know that Mark Zuckerberg’s social media giant developed algorithms to “deboost” certain content, limiting its distribution and appearance in news feeds. As you probably guessed, this stealth censorship was specifically aimed at conservatives.”

Examples throughout Academia are rampant. Breitbart recently reported that Students at the University of New Hampshire were caught on video tearing down conservative-oriented “Turning Point USA” posters. A leftist student said “I hate you and I hope you die” to one of the members of the school’s TPUSA group after being approached about tearing down the displays.

A Newseum white paper authored by the organization’s CEO Jeffrey Herbst found that “the real problem of free expression on college campuses is much deeper than episodic moments of censorship: With little comment, an alternate understanding of the First Amendment has emerged among young people that can be called ‘the right to non-offensive speech’…The crisis is not one of the very occasional speaker thrown off campus, however regrettable that is; rather, it is a generation that increasingly censors itself and others, largely silently but sometimes through active protest…”

The Foundation for Individual Rights in Education (FIRE) maintains that “A culture of censorship has taken root and permeated universities, in part due to some students’ unfamiliarity or disinterest in their rights. A likely culprit, in my opinion, is deficient civic education in secondary schools across the nation. In the absence of engaging civics instruction and classroom debate, some students fail to grasp the content or significance of their First Amendment freedoms, allowing those rights to fall victim to restrictions on campus…”

The James G. Martin Center for Academic Renewal reports that “Student intolerance and opposition to free speech have been gaining momentum. What began as isolated incidents at the University of Missouri and Yale University in fall 2015 quickly spread to other universities, leading to individuals being targeted for simply expressing their opinions…”

Picture: U.S. National Archives

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.