Against Hate Speech

First Amendment Rights--McCall's Evolution as Protector

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.

So reads the First Amendment to the US Constitution. The exact meaning of this amendment has been the subject of much debate and many Supreme Court rulings since the ratification of the Constitution in 1789. The way in which the Court chooses to interpret this Amendment at any given time has a drastic effect on the way constituents choose to protest and the consequences thereof. The line between constitutionally protected rights under the First Amendment and those actions left unprotected has continually required clarification. The years of the Sixties brought great degrees of social change and, with that, many young protestors pushing the envelope on public officials and demanding the liberty to exercise their rights. One of the greatest legacies of this period is the sit-in. Originally popularized by the Civil Rights Movement, demonstrators of all persuasions adopted and made notorious this useful tool of protest. In the interest of keeping the peace, public officials were required to decide between allowing or disallowing such demonstrations of protest and dissent. Some proved themselves to be greatly in favor of the process of protest; others found it and its repercussions merely a thorn in their side. The sit-in at Johnson Hall on the University of Oregon campus in the spring of 1970 was not among the most notorious of nation-wide protests, but it did change the way Oregonians viewed protest as well as the way public officials chose to respond to confrontation.

Tom McCall was a journalist for many years of his life and highly respected the profession. In his autobiography he asserts the importance of First Amendment rights to the field of journalism, he goes so far as to call them "the essence of what constitutes liberty for many Americans." He also admitted at least one time where he released information to the press, knowing it would bring public reaction, for the sake of the story. At the same time, he was critical of those claiming their First Amendment rights to assembly. Was he right to be so critical or was he, in fact, suppressing the liberty he fought so dearly for in the field of journalism?

In McCall's autobiography he remembered a question he frequently received soon after he became governor: "How do you like being on the other side of the microphone?" To this he responded, "People were naturally curious about the transformation from reporter and news analyst to newsmaker. They soon discovered that once a commentator, one is always a commentator. When reporters asked what I thought, I told them." McCall was very familiar with how the media operated and wrote, "As far as we were concerned in Salem, the press was our ally, not our enemy." Maybe this is because for him, he never stopped being a journalist. "As a journalist on loan to government, I did my best to help them." McCall had an open-door policy with the media. One of his first items of business upon his inauguration was to make it clear to the media that he and his staff would always be dispensable. "We worked hard to carry out that pledge for eight years... We even let the press know that it could come to our staff meetings, which we held daily. At these meetings, the germ of many ideas appeared for the first time. So the press would show up at staff policy sessions from time to time, usually on slow news days."

For protestors, however, McCall did not seem as accommodating.

The protests tore McCall in two directions. As a former journalist, McCall instinctively felt that the protestor's First Amendment rights needed to be defended, no matter their message. "Without the right of dissent, all of the newspapers, magazines and broadcast agencies would be grinding out government pap, a grisly gruel of bureaucratic jargon designed to cement the status quo," McCall said. "When your rights are gone, it makes very little difference to the prisoner exactly who it was that threw away the key. Yet when University of Oregon student organizations included profanities in their protest publications, McCall, erstwhile freedom of speech defender, grew livid.

McCall's chief of staff, who eventually oversaw crowd control on Oregon's university campuses, Ed Westerdhal, attested to McCall's frustration with student unrest: "He was a hothead when it came to protestors. He realized he would not think logically when it came to handling these crowds."

To help see where McCall was coming from as a politician, a quick look at what the Supreme Court has ruled regarding those rights of press, speech, and assembly that the Constitution upholds and those that are left unprotected. William Blackstone wrote in his 1872 book, Commentaries on the Laws of England, what is "generally concluded...to be the prevailing view...and probably the understanding of those who drafted, voted for, and ratified the Amendment,"

Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.

A few years later, in the first case to reach the Supreme Court after World War I, Schenk v. United States, Justice Holmes introduced the ever-famous phrase "clear and present danger" in his opinion, stating "The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." He later added to this decision saying, "The First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language." In the Sixties the distinction between use of language, actions, and the constitutionally protected "speech" became ever pressing. In a case against a young man who burned his draft card, the Court barricaded the protection of limitless expression as 'speech,' maintaining more important, rather, laws controlling actions.

We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea...This court has