The First Amendment Comes First

August 18, 2010 The First Amendment Comes First

My mother once showed me a drawing by Elizabeth Layton entitled “Censored” that included Ira Glasser’s famous quote: “The first exception to the First Amendment will not be the last.”

Freedom of speech, freedom of religion, freedom of association – all rights we cherish as Americans.  But recent headlines suggest that we really have a love-hate relationship with these most basic rights.

Let’s start with freedom of expression.  A homeowner’s association in Thornton has instructed a resident to not display the Gadsden flag, saying “Tea Party flags are not permitted.”  While some may quibble that HOAs are not governmental authorities subject to First Amendment prohibitions against censorship, Colorado law does authorize and regulate HOA activities.  And in 2005 lawmakers enacted protections for the free speech rights of residents of property controlled by HOAs. 

The free speech protections in the 2005 legislation, SB 100, were primarily aimed at displays of political yard signs.  In some HOA communities this basic form of political expression was forbidden and disputes flared each election year.  SB 100 expressly authorized the display of political yard signs within certain periods of time prior to elections. 

But as SB 100 was being debated, amendments were proposed to also protect displays of the US flag.  A bit of context may be helpful:  the legislature had spent several years arguing about the pledge of allegiance and amendments to bills protecting the pledge and Old Glory were routine outbreaks of this running spat.  Ultimately SB 100 was amended to prevent HOAs from banning political yard signs, the US flag or a flag of any branch of the US armed services.

Arguments were made and rejected that the flag amendments were too narrow and in fact violated the First Amendment because they created a preference for certain symbols.  First Amendment scholars call this “content discrimination.”  An essential component of freedom of speech is that you shouldn’t be freer to say some things as opposed to others.  All messages are equal.

Fast forward five years to the Thornton HOA situation.  The HOA seems to be taking advantage of this particular provision in SB 100 that favors some flags more than others.  Perhaps this dispute will become the test case that leads to the invalidation of the restrictively narrow state law, or perhaps it will establish First Amendment protections for HOA residents.  I’m rooting for the Gadsden flag in this one!

There is of course a small bit of irony in this story that needs to be pointed out.  The US flag amendments to SB 100 were proposed by conservative lawmakers as a ploy to question the patriotism of those that dared to oppose the amendment as drafted.  These same conservatives rejected the argument that their amendment was discriminatory and created a favored set of symbols.  And today these same conservatives are enraptured by the strident Tea Party movement and its rejection of any infringement of civil liberties. 

So let’s next turn to freedom of religion and the peculiar penchant of certain politicians for demonizing Muslims and Islam.  Free exercise of religion was one of the driving forces in the founding of this country, but the insistent messaging from the right that our country was founded on “Judeo Christian principles” has drummed our history out of our collective memory.  It is now popular to believe that certain religions are preferred and that Wiccans, Pagans and Muslims are a threat to our national security. 

Should a mosque and Muslim community center be built near the site of “Ground Zero” in lower Manhattan?  Apparently the property owners have complied with local zoning and land use regulations, but that isn’t good enough.  Would the result be different if Buddhist monks wanted instead to build a meditation center in that location?  I think we all know that proposal would not generate the current controversy, but for some reason many are not bothered by the fact that the religion in question is the determining factor.  Instead, many are exploiting the divisive potential for political gain.

Discrimination is discrimination, regardless of the context.  Just as a particular religion shouldn’t experience a different outcome in a land use determination, neither should certain flags enjoy heightened protection from the HOA thought police while others may be banned.  There are important principles at stake in these disputes and in each case our most precious civil liberties risk diminution by political passions. 

My mother once showed me a drawing by Elizabeth Layton entitled “Censored” that included Ira Glasser’s famous quote: “The first exception to the First Amendment will not be the last.”  I’ll always remember this lesson and stand firm in defense of the liberties the First Amendment protects.

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