William Marshall on the Rights and Responsibilities of the First Amendment

As the University of North Carolina at Chapel Hill campus celebrates First Amendment Day today, we welcome a guest post from legal scholar and professor William Marshall, who teaches at the UNC Law School. He reminds us that with our freedom from government intrusion comes the responsibility for public engagement.–ellen

Humorist, social critic, and cartoonist Walt Kelly once famously wrote, “We have met the enemy and he is us.”  And so it is with freedom of speech.  We live in a time where government-imposed censorship exists rarely, if at all.  Our airwaves, blogs, and news outlets freely criticize the government without serious risk of sanction.  Our public discourse is wide open, robust, and virtually untamed in its use of language and modes of expression.  The advent of the internet has allowed even marginalized voices to reach out and find sympathetic audiences.  We have the resources, usually at our desk or laptops, to search for truth and gain knowledge about virtually any subject.  This is the good news.

The bad news is that even with all of this unfettered speech and information, we remain a remarkably uninformed society.  We tap those great oceans of information available to us not to be educated but to be entertained.  We constantly attune ourselves to the affairs and excesses of our celebrities but remain constantly unaware of the affairs of State and the excesses of private industry. If given a choice, we would sooner focus on the “reality” of the lives of housewives on the Jersey Shore than on the stark problems facing our schools, our cities, and our environment.   Though as voters we are empowered to set the direction for the country, most of us do not know even the most rudimentary facts about how our government is structured.  And when we vote (if we vote at all), we tend to be far more influenced by eight-second sound bites and fifteen-second commercials than we are by serious discussions of the issues.

In part, I suspect, our behavior is not surprising.  Faced with a constant and overwhelming barrage of chatter and noise, it is only natural that we often seek escape rather than engagement.  After all, we have neither the time nor the resources to sort on our own all the information to which we are exposed.  So we behave as the advertisers and the public relations experts expect us to behave—we reflexively respond to those messages that appeal to our emotions or to our pre-existing preferences and we filter out those that do not.   And we tend not to question what we already believe.

But societal passivity, whatever its roots, is dangerous.  Very dangerous.  The power of government censorship is certainly formidable.  But even more effective than censorship is the ability of government to manipulate a passive populace towards its own purposes  – an ability that the government has proved particularly adept at employing in times of national crisis and armed conflict.

So while we have reason to be proud of a first amendment tradition that condemns government censorship, we also need to be mindful that threats to a free society do not necessarily stem from government alone but can also come from our own inability to exercise the freedoms and the responsibilities delegated to us in a democratic society.  Over eighty years ago in Whitney v. California, Justice Louis Brandeis taught us that “[t]hose who won our independence believed that the greatest menace to freedom is an inert people [and] that public discussion is a political duty.”  His is a lesson that must be retaught and relearned by every generation.

William (Bill) Marshall is Kenan Professor of Law at the University of North Carolina, where he teaches media law, civil procedure, constitutional law, first amendment, federal courts, church-state, and the law of the presidency. He was Deputy White House Counsel and Deputy Assistant to the President of the United States during the Clinton Administration and served as the Solicitor General of the State of Ohio. He has published extensively on first amendment, federal courts, and presidential powers issues and is a leading expert on judicial selection matters.