Margaret H. Marshall: "Democracy v. the First Amendment? New Tensions in a New Age"

Margaret H. Marshall: “Democracy v. the First Amendment? New Tensions in a New Age”

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November 13, 2014, 2:41 pm

Richard S. Salant Lecture on Freedom of the Press with Margaret H. Marshall

November 13, 2014Margaret Marshall, former chief justice of the Supreme Judicial Court of Massachusetts, delivered the annual Salant Lecture on Freedom of the Press, where she expressed her concerns about the Supreme Court’s interpretation of the First Amendment, and its impact on democracy, civic discourse, and privacy.

Read the transcript (PDF).

Marshall said that while we should celebrate the progress made possible by the First Amendment, “we must also be watchful.” Under the current Supreme Court, “the First Amendment, adopted by the people as a shield to protect the dissemination of diverse viewpoints, has become a sword, striking at values and institutions that define who we are as a nation,” she said.

Citizens United has led to consequences “antithetical to the very notion of participatory democracy,” said Marshall. She cited other cases that have eroded the integrity of the judicial system. In 2002, the Supreme Court decided in Republican Party of Minnesota v. White that a clause in Minnesota’s code of judicial ethics – one that forbade candidates for judicial office from announcing their views on legal or political issues – was unconstitutional. The clause was designed to ensure that judges decided cases based only on evidence, “and not on factors such as allegiance to party platform or wealthy contributors,” said Marshall.

Several federal courts have since relied on White’s First Amendment interpretation to strike down other judicial ethics laws, said Marshall, and “this term, the Supreme Court will consider whether judicial candidates have a First Amendment right to solicit campaign contributions directly from lawyers who appear before them.”

Marshall discussed the prevalence of hate speech in radio, television, and online, and the use of the First Amendment to offer protections to protestors who disrupt private funerals. “The Supreme Court seems content with this development,” she said. “When those who have been hurt and disenfranchised by hateful words ask us to take their political, social, and emotional issues seriously it is, in my view, the height of arrogance to fall back on First Amendment platitudes.”

The United States Constitution lacks a specific privacy clause, said Marshall, and although the Supreme Court has upheld the right to freedom from unreasonable search and seizure, “the same court has allowed the government to spy on Americans on an unprecedented scale.” She recounted her experiences in South Africa during Apartheid, when no communication could be assumed to private. Marshall said that the rise of surveillance in the wake of 9/11 “is perhaps the greatest threat to freedom of the press and free speech our country has ever known.” The current balance struck between privacy and security is “not compatible with a free people living in an open society,” she said.

Learn more about the Salant Lecture and past speakers. 

Article by Nilagia McCoy of the Shorenstein Center.