Dear Mr. Boone:

      If you are for censorship, then I am against you. And I will admit, I have been a fan of yours for a long time. While you were never my favorite singer, you seemed like a nice enough guy; I have enjoyed many of your tunes--even if they were mostly covers of songs by such greater talents as Fats Domino, Little Richard, and Ozzy Osbourne.

      But then I read the April 21 edition of The Washington Times, in which you said, "I don't think censorship is a bad word, but it has become a bad word." You went on to say, "At some point a line that has to be drawn between one man's liberty and another man's license." Well, yes, Mr. Boone, that's true. But with only the rarest of exceptions--such as yelling "Fire!" in a crowded theater--that line of liberty should be drawn widely enough to protect free speech from the censorious likes of you.

      And it's not just me saying so--the Constitution says so. Here's the exact wording: "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." I don't see the word "censorship" in there anywhere--just the opposite, in fact.

      Free speech is the most important of our freedoms. The right to criticize one's own government is our bulwark against tyranny. Americans are guaranteed this right by the First Amendment to the Constitution, quoted above. But this bulwark was a late addition that almost didn't make it. Understanding the nature of the attacks against it now requires an understanding of the attacks it has suffered since its very origins. Hence, a history lesson. Sorry to go on so long, Mr. Boone, but on Friday night, I saw that you were on Fox News' "Hannity & Colmes," saying much the same stuff. Which is to say, what you said to The Times wasn't just a momentary brain-spasm--you really meant what you said.

      So before you get a chance to put me in jail, I will seek to set you straight about a key period of American history. And while I might not convince you, maybe I can convince some of my fellow Americans to a) embrace the First Amendment with all the more fervor, and b) not buy any more of your music or support anything that you might endorse.

      Because as you will see, Mr. Boone, while there have been many restrictions on free speech, the First Amendment notwithstanding, the general trend has been toward freedom and away from censorship.

      Before the Constitution, of course, America had been guided by the Articles of Confederation, ratified in 1781. But some Founders wanted a stronger, more centralized federal government than the Articles allowed. These included Alexander Hamilton, John Jay, and James Madison, the authors of The Federalist Papers--those papers were an extended argument on behalf of a constitution. Indeed, the Federalists succeeded not only in calling a convention to amend the Articles, but in getting them replaced altogether by an entirely new idea--a constitution.

      The Constitution we have now was presented to the public of the infant republic in 1787. But immediately came strong objections. Critics worried it gave too much power to the national government at the expense of the states, in particular, to the executive branch. But more importantly, this new constitution, the Anti-Federalists argued, did not contain enough guarantees of individual rights. These anti-Federalists included Thomas Jefferson, Patrick Henry, and Tom Paine. And the stakes were high: no less a figure than Benjamin Franklin predicted, on the floor of the Constitutional Convention in Philadelphia, that such a government could turn into a tyranny.

      Jefferson was in France in that pivotal year of 1787, but he wrote to Madison, his protégé, taking him to task for not including a bill of rights in the Constitution-- specifically, the future Third President scored the future Fourth President for neglecting what Jefferson called "freedom of the press."

      State conventions were called, and the new constitution was hotly debated. The Federalists responded that if the constitution were to list specific protected rights, a future government might argue that it was entitled to trample on those rights not specifically itemized. Since it was not possible to list every right, the argument went, none should be listed. Hamilton declared that since the constitution did not grant the government power to trample individual rights, a specific Bill of Rights was unnecessary.

      Hamilton wasn't convincing. The vote to ratify was in many states extremely close. Other states insisted on a Bill of Rights before they would ratify the new constitution. And so the Bill, drafted by Madison, was born. The first eight Amendments to the constitution list certain rights the government may not violate. Amendments nine and ten state that enumerating rights in the constitution does not indicate that these are the only rights citizens have.

      The entire package--amendments #1 through #10--was ratified by the necessary number of states--10 of 13--between 1789 and 1791.

      Why did so many Founders consider free speech essential? Here's the answer, Mr. Boone.

      The idea came out of a philosophy of rights, primarily advocated by the British philosopher John Locke (1632-1704) which was enormously influential in 18th-century America. It was a new paradigm: Locke argued that men had rights because they were rational beings, not because a sovereign had decided to grant them rights. And governments were established specifically to protect these rights.

      Two other Englishmen had a huge influence on the Americans who would become revolutionaries. John Trenchard and Thomas Gordon published their ideas in a series of 144 anonymous missives called "Cato's Letters," published in England from 1720 and 1723. They felt that the right to speech was just as important as the right to property, and listed three reasons why: first, citizens can criticize the government when they have freedom of speech, making that government more accountable to the people it serves; second, humanity cannot pursue truth in the realms of science or art without it; third, free speech is essential for self-expression and individual fulfillment.

      To be sure, the upward path to human freedom has not always been smooth--but at least it's been mostly upward, Mr. Boone.

      Unfortunately, the First Amendment's clear language--"no law"--has never meant "no law." Those words may be in the First Amendment, but almost as soon as it was adopted, laws of various kinds curbed free speech. The Amendment is general and vague; there have always been debates about just what restrictions are constitutional and which are not.

      You should stop reading here, Mr. Boone, because the litany of restrictions and inhibitions on free speech might give you the wrong idea. However, all other Americans should keep reading, because they should know that censors--the latest of which is Pat Boone--have done great harm to free expression over the centuries.

      From the beginning, there were arguments about whether the First Amendment applied only to "prior restraints," disallowing censorship before the fact, but allowing speech to be criminalized after its publication. The argument wasn't settled until the 1930s: the First Amendment does indeed protect speech before and after its publication.

      To take another example, the courts held throughout the first half of the 19th century that "blasphemy" could be outlawed. Such "blasphemy" included public denials of Christianity. In the first half of the 1900s, courts found that people could be jailed for publishing statements criticizing courts' opinions. (Convenient, that.)

      It even took twenty to thirty years in many states before truth could be a defense in criminal libel prosecutions. And it took more than a century after that, until the 1960s, before truth didn't just apply when the statement was made with "good motives" for "justifiable ends."

      It was (and is) often at times of crisis that the First Amendment has been ignored. The Alien and Sedition Acts, enacted by President John Adams and his Federalists in 1798, only seven years after the Bill of Rights was ratified, outlawed speech critical of the government. Jefferson, for one, declared that the Acts fell afoul of the First Amendment. But there was no challenge in the Supreme Court. In fact, the Supreme Court did not hear a single free speech case until 1919. (The Acts were allowed to expire during Jefferson's presidency.)

      In 1917, during World War I, Congress passed the Espionage Act. This bill outlawed the promotion of insubordination or refusal of duty among the armed forces. In 1918, it was amended to include speech "intended to bring the form of government of the United States into contempt, scorn, contumely, or disrepute." It was repealed in 1921. In the meantime, the law did go to the Supreme Court. An individual who published a pamphlet opposing the draft, another who promoted socialism, and another who published a pamphlet sympathetic to Germany all challenged their convictions. In one case, Schenck v. U.S., the Court unanimously upheld the conviction. The court also upheld another conviction a few months later. In Abrams v. U.S., a man was convicted under the Espionage Act for distributing anti-war pamphlets. But this time, there were two dissenting opinions, which were influential in making the law what it is today.

      Justices Louis D. Brandeis and Oliver Wendell Holmes wrote that speech could only be restricted if it presented "a clear and present danger" of imminent harm. The majority of the Supreme Court eventually agreed, and adopted this "clear and present danger test." Their opinion was only the dissent, but it would be influential for years to come.

      In fact, after the losses in these cases, free speech was actually on solid ground. That changed in the 1950s, however. The Supreme Court made an exception to the clear and present danger test, stating that individuals could not advocate the overthrow of the government, no matter how small the possibility of such an overthrow may be. Those agitating for Communist revolution were some of the victims.

      The Court established yet another free speech standard in 1969. In Brandenburg v. Ohio, the Court found that even speech promoting violent action is protected by the First Amendment. The government can restrain speech only if it is intended and likely to produce "imminent lawless action." This Brandenburg standard still holds today.

      There are some other restrictions government can place on speech-time, place, and manner restrictions. Individuals and groups may need to acquire permits for demonstrations, for example. But the government cannot deny permits because of what the demonstration is about.

      So far, Mr. Boone, we have mostly examined political speech. What about other forms of speech, including "speech" that is not spoken or written? The First Amendment protects those, too. Symbolic speech, for example, takes nonverbal forms to communicate ideas. Such symbolic speech might include artworks or even gestures. In Tinker v. Des Moines (1968), the Supreme Court found that public school students could wear black armbands to protest the Vietnam War. In both Texas v. Johnson (1989) and U.S. v. Eichman (1990), the Court threw out laws prohibiting flag despoliation.

      Doesn't sound too bad, does it? The First Amendment may not be as clear as it seems, but over the years, free speech protections have gotten stronger and stronger. There is no speech that is not protected, right? Well, not quite.

      Works deemed "obscene" have not received the same protection as political speech. And over the years, expression involving sex has become the favored target of politicos seeking to score points with the people. This has been true for many years-until the mid-twentieth century, obesity laws were also used against discussion of contraceptives.

      The Supreme Court established the definition of what is "legally obscene" in a 1973 decision in Miller v. California. Three conditions must apply: "(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specially defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." One can easily see that such criteria are from the start subjective. Who is this "average person"? What exactly does "patently offensive" mean? And who can decide whether or not a work has artistic value? So what exactly should be classified as "obscene"? Justice Potter Stewart famously said, "I know it when I see it." Which is to say, after all the legal to-ing and fro-ing the definition of obscenity is still arbitrary--way too arbitrary for a free country to tolerate, I think,

      Compare that to the straightforward, inspiring words of the Founders: "Congress shall make no law . . . abridging the freedom of speech, or of the press." It's over two centuries later, and we have still never lived under such a regime. But we should, Mr. Boone--if, by chance, you are still reading. And if you don't agree, then I don't agree with you. Yes, this is a disagreement that needs to be litigated. And it needs to be voted upon this November, in the hope that pro-freedom/pro-First Amendment judges will be appointed.

      I hope that your side loses, Mr. Boone. But no matter what, you have already lost with me.

      Sincerely,

      Jane J. Flora


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