Freedom of speech, the press, association, assembly, and petition: This set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. It is the foundation of a vibrant democracy, and without it, other fundamental rights would wither away.
The fight for freedom of speech has been a bedrock of the ACLU’s mission since the organization was founded in 1920, driven by the need to protect the constitutional rights of conscientious objectors and anti-war protesters. At the time of our founding, the Supreme Court had yet to uphold a single free speech claim, and in fact regularly justified the repression of speech, of the press and of the right to assemble. However, with passage of the Espionage Act of 1918, thousands of people were prosecuted for expressing their views, most of them simply for speaking out against the war. The public was newly awakened to the dangers of allowing the government to silence its critics.
Our work quickly spread to combating censorship, securing the right to assembly and promoting free speech in schools. Before the ACLU took on novel court cases establishing the right to free speech, Americans couldn’t be certain that the government wouldn’t throw a person in jail for organizing public meetings of people with similar (but unpopular) political beliefs or ban high school students from wearing symbols of their opposition to war.
More than a century later, these battles have taken on new forms, but they still persist. That’s why we continue to champion freedom of expression in all forms – protest, media, online speech, the arts and more. No matter how big or small the threat, we are always on guard to ensure that our First Amendment protections remain robust.
That’s why we filed a federal lawsuit challenging South Dakota’s personalized license plate law and the Motor Vehicle Division’s policy. We were criticized for the case, which was filed on behalf of Lyndon Hart whose application for a “REZWEED” plate was initially denied as being allegedly “in poor taste.”
Although only a few characters long, “vanity plates” are often used to convey a meaningful expression of the driver’s personal identity, values or sense of humor. Unfortunately, South Dakota state officials who issued license plates were given the discretion to censor the messages on these plates if they deemed them to be “offensive to good taste and decency.” While it’s tempting for some to classify this as an insignificant issue, the case, which was settled after the state agreed to amend the law and policy, was about so much more than just a license plate. It’s dangerous to allow the government to decide which speech is allowed and which should be censored – even when we’re talking about personalized license plates.
That’s also why the ACLU is representing the National Rifle Association before the Supreme Court in NRA v. Vullo, arguing that government attempts to blacklist a nonprofit advocacy group and coerce financial institutions to deny it services because of its viewpoint violates the First Amendment. Though we stand in stark opposition to many of the NRA’s positions - for example, we know gun violence is a real and persistent threat that causes incalculable harm to many communities - we know that the First Amendment principles at stake here are simply too important for us to stay silent. Public officials cannot be allowed to abuse their regulatory powers to blacklist an organization just because they oppose its political views, and we cannot give government officials the power to silence those with whom they disagree.
And that’s why we oppose House Bill 1113, legislation that would prohibit the hosting of “lewd or lascivious” programs or events on school campuses, universities and state-funded performance centers. It’s impossible to define lewd and lascivious in a way that isn’t hopelessly vague and subjective, and government officials cannot impose their personal moral values on others. The type of expression or speech that is or isn’t allowed shouldn’t be subject to what legislators like or don’t like on any given day. It’s no secret that some elected officials in Pierre deeply disfavor anything they associate with the queer community – such as drag performances. But when we’re talking about adhering to the First Amendment in the context of art and entertainment, defending free speech means tolerating some works that others might find offensive, insulting or outrageous.
Vanity license plates, the NRA’s ability to access financial services, and whether or not what some misconstrue as “lewd or lascivious” programs can take place in buildings funded by the state might not be important to you. But the First Amendment should be – especially to elected officials who have taken an oath to uphold the Constitution.
Despite its “preferred position” in our constitutional hierarchy, our nation’s commitment to freedom of expression has been tested over and over again. It’s our job to ensure that everyone benefits from the same level of Constitutional protection, that our free speech rights are truly “indivisible.” Freedom of expression for ourselves requires freedom of expression for others. This is at the very heart of our democracy.
If we let the government chip away at our Constitutional rights one piece at a time, there are no guarantees that the next rights they take away won’t be yours.
This piece originally appeared on The Dakota Scout.