First Amendment Report Card


Rarely in our lifetimes has there been more controversy about the state of our First Amendment freedoms. It is critically important for our nation to have serious discussions about the threats and opportunities we face in maintaining and trying to enhance our democracy.

The Newseum Institute, the nation’s pre-eminent organization that explains, promotes and defends the five freedoms of the First Amendment, is launching a quarterly “report card” that will evaluate the state of each of the five freedoms of the First Amendment in the age of Donald Trump. Our report card seeks to go beyond often partisan ad hoc observations to provide a credible and systematic evaluation of freedom based on grades provided by a diverse set of some of the nation’s leading constitutional scholars and observers.

We polled 15 First Amendment experts — academics, lawyers, journalists and activists — from across the political spectrum, and have based our report card on their opinions. (Our panelists are listed at the end of this report card; panelists’ affiliations are noted for identification purposes only.) This panel of experts has committed to providing updates of their opinions every quarter. We believe that such a regular report will provide an important service by generating informed conversations of the kind envisioned by the drafters of the First Amendment.

This first report card is intended to set the baseline for First Amendment grades, so that we may effectively track future changes and shifts in the status of our freedoms. For this reason, we instructed our panelists to base their evaluations on more than just the actions taken by the Trump administration during its first 100 days. We also asked them to consider pre-existing conditions (such as laws that pre-date the Trump administration), and issues the Trump administration does not directly control (such as speech on college campuses, or state-level restrictions on protests). Our goal is to provide a comprehensive snapshot of the five First Amendment freedoms at this moment in time, so that subsequent report cards can accurately reflect any changes in the landscape.

Panelists were instructed to assign each freedom a letter grade, without using pluses or minuses. In selecting the overall grade of a First Amendment freedom for our report card, we used the average of the grades assigned by our panelists.

Spring 2017

Freedom Grade
Religion C+
Speech C+
Press C
Assembly B-
Petition B-
First Amendment Composite C+

First Amendment Composite

C+

The composite grade point average for the five freedoms of the First Amendment was a 2.39 — a C+. In other words, according to our panelists, the First Amendment is “passing” — albeit, barely. Very few “A” grades were awarded; but at the same time, no panelist awarded any freedom an “F.” This composite grade can be seen as a reflection of our panelists’ concern over the current state of our First Amendment freedoms, but also their belief in core resiliency of those freedoms.


 

Religion

C+

“Anti-Semitism is on the rise. Religious businesses are being pressured and fined and forced to close when they don’t comport with ideological orthodoxy. And then of course there are the (mostly irrational) concerns regarding the so-called “travel ban” — which is terribly designed if its intent is to ban Muslim visitors, but whose rollout was mishandled in such a way that American Muslims do feel threatened. At least nuns are no longer being forced to pay for medical coverage they consider to be sinful.”

– Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review

 

Freedom of religion earned a C+ average from our panelists, with a grade point average of 2.20. “C” was the most common grade awarded (almost half of our panel voted this way). A majority of members of the grading panel mentioned that the administration’s travel ban order had a negative impact on their assessment of freedom of religion. These panelists viewed the travel ban as a provision against Muslims, although Ilya Shapiro of the Cato Institute pointed out that even if its intent was not to ban Muslim visitors, its “rollout was mishandled in such a way that American Muslims do feel threatened.” A couple of panelists showed concern about public attitudes towards religious groups, pointing out a rise in anti-Semitism and a disrespect for Islam. Religion did receive one “A” grade, from Campaign Freedom’s Brad Smith, who stated that “you can feel a collective sigh of relief from Americans of faith,” citing the repeal of the Obama-era transgender bathroom access policy, and the draft executive order that would allow federal employees to refuse to perform actions that would violate their religious beliefs.

“In one of its few tangible actions thus far, this administration’s cynical treatment of religion in its immigration orders signals a callous disregard for First Amendment freedoms.”

– Robert Corn-Revere, lawyer and expert in First Amendment and media law


Speech

C+

“On the one hand, we’re seeing a robust marketplace of ideas in early 2017, with opponents and supporters of the new administration sharing their full-throated views. Troubling, though, are the number of cases of intolerance for controversial speech on college campuses. The high-visibility cases are just the tip of the iceberg. It’s a broader cultural problem.”

– Ken Paulson, president of the First Amendment Center of the Newseum Institute and former editor of USA Today

 

Freedom of speech earned a grade point average of 2.4 — a C+. The outlook for freedom of speech was generally more positive than it was for religion: just as many Bs were awarded as Cs, making these the two most common grades for freedom of speech.

A number of panelists observed that there’s a fair amount of good news pertaining to freedom of speech — social media continues to facilitate a vast amount of communication, and since the election we have experienced increased political participation, in what Ken Paulson, president of the First Amendment Center of the Newseum Institute and former editor of USA Today, refers to as “a robust marketplace of ideas.” However, panelists on both sides of the political spectrum saw plenty of room for improvement.

Speech on college campuses was, unsurprisingly, a hot button issue. A couple of panelists took issue with what they saw as an intolerance for controversial subjects, or as the Cato Institute’s Ilya Shapiro put it, “the chilling political correctness and downright fascistic tendencies on college campuses.” On the flip side of the issue, Asma Uddin, director of strategy for the Center for Islam and Religious Freedom, found that President Trump’s threat to defund UC Berkeley after it canceled an appearance by controversial conservative Milo Yiannopoulos was itself a “rejection of the free marketplace of ideas by refusing to acknowledge facts or dissenting viewpoints.”

Panelists observed that the administration has not passed any laws or made policies that affect free speech one way or another. A couple panelists noted that while free speech rights remain intact at the moment, there is some concern that this may change. Nathaniel Frederick, professor of mass communications at Winthrop University, pointed out that President Trump has made anti-free speech remarks, such as his exhortation that there should be legal consequences for burning an American flag — with the caveat that the administration hasn’t yet released any tangible legislation related to free speech. Lucy Dalglish, dean of the Philip Merrill College of Journalism, observed that the current atmosphere contains “rumblings…indicating that speech may be threatened in the future.”

“On the one hand, we have a free-for-all on social media. On the other hand, there’s a chilling political correctness and downright fascistic tendencies on college campuses, as well as an environment where non-progressives would lose their jobs if people knew their views in certain sectors (e.g., Silicon Valley, Hollywood). But regardless of all that, what really concerns me is that we have a “fake” sort of free speech — not to be confused with fake news — where it’s become a cultural norm to simply reject out of hand any view that doesn’t agree with your own. This doesn’t bode well for the health of the polity.”

– Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review


Press

C

 

“Repeated public criticism of the media at the highest levels of government and the prevalence of false information in the public sphere makes it harder for the public to determine which information is true or false, and which sources are credible. Lack of public statements of support from government officials for the essential function and role of the news media also brings down the grade. Our democratic system depends on public support for independent journalism. Press freedom is undermined when the public has a harder time knowing which information and which sources are credible and reliable.”

– Richard Blum, director of News Media for Open Government

 

The right to a free press had the ignoble honor of receiving the lowest grade point average of all five First Amendment freedoms, at 2.00. The most common grade awarded to it was a “D,” by half of our grading panel. (It’s a credit to the diversity of our panel that it also received one “A” and five “Bs.”)

What accounted for so many of our panelists giving this freedom an almost-failing grade? Panelists pointed out the following factors: President Trump’s campaign promise to open up libel laws in order to more easily sue media outlets; certain media outlets being blocked from attending certain White House briefings; the “fake news” phenomenon, coupled with the president using the “fake news” label to attack the media, and the president’s general enmity for the press.

On the other hand, several panelists found these alleged threats to the press to be overstated. As the Center for Competitive Politics’ Bradley Smith expressed, “The president’s verbal jousting with and criticism of the press is not, despite what some will say, a crisis of the First Amendment.” A couple panelists observed that media outlets like The New York Times and The Washington Post have seen an increase in readership, and press freedom associations have received an increase in donations. Furthermore, panelists pointed out that the press is still doing its job, fulfilling its role as a watchdog on the government, especially given all the information about the administration that has been coming in from unofficial channels (i.e., leaks).

“The press is still operating freely, but the climate is charged. The president is threatening and mocking. Money is rolling in to support press freedom organizations because of a perceived threat. I predict investigations into leaks will start soon and reporters will be sucked into the investigations. Expect this grade to plummet.”

– Lucy Dalglish, Dean of the Philip Merrill College of Journalism, University of Maryland

“Although labeled ‘enemies of the state’ by the president, the press is still robust in its investigations and in holding those in power accountable. It appears readership is up for a number of publications. But we all must remain vigilant to protect this precious right.”

– Mickey Osterreicher, general counsel for the National Press Photographers Association

 

 


 

Assembly

B-

“Assembly is alive and well, with large political marches – from both left and right – taking place in all 50 states in the past 10 weeks. They were overwhelmingly peaceful and well-covered by the news media.”

– Ken Paulson, president of the First Amendment Center of the Newseum Institute and former editor of USA Today

 

The grade point average for freedom of assembly was 2.53, with the most common grade awarded being a “B” (from seven of our panelists). It even received two “A” grades. However, it’s worth noting that the average was brought down by three panelists assigning this freedom a “D” grade.

This discrepancy occurred because our panelists assessments’ of freedom of assembly varied widely. Those who graded freedom of assembly generously pointed out that the recent protests and political marches were classic demonstrations of the freedom of assembly, and that the government took no action to crack down on these or their accompanying media coverage.

Those who took a more negative view of this freedom mentioned local legislation being passed to limit the rights of protesters, mobs of college students using their right to assemble to shout down or block speakers, and the president’s mockery of protesters.

“Actions to limit demonstrations and a growing number of proposals to give government more authority to punish protesters are signs of leaders who are fearful of what the people have to say.”

– Robert Corn-Revere, lawyer and expert in First Amendment and media law


Petition

B-

“Petition is certainly being used to shape legislation. The hitch is that professional petitioners – lobbyists – are the ones changing public policy, while true grassroots campaigns rarely yield legislative results.”

– Ken Paulson, president of the First Amendment Center of the Newseum Institute and former editor of USA Today

 

Petition achieved the highest grade point average of all five First Amendment freedoms: 2.80. The most common grade awarded to petition was a “B” (by eight members of our grading panel), and it received three “A” grades, more than any other freedom.

Petition, for anyone who has forgotten the definition of this little-known freedom, is the right to use non-violent and legal means to convince the government to change laws or correct problems. Those means include writing letters or emails, or making phone calls to elected officials, organizing popular support to pressure elected officials or vote them out of office, testifying in front of tribunals, and filing lawsuits.

The current administration has not done anything to hinder the right to petition, and as Ilya Shapiro pointed out, citizens are using this power: “Congressmen and senators have been deluged with calls and emails about issues ranging from immigration to health care to the Supreme Court nomination.”

A couple of our panelists balanced these positive factors with a sense of cynicism regarding the actual efficacy of petition. Ken Paulson pointed out that professional petitioners (lobbyists) are generally more successful at changing public policy than grassroots campaigners. Similarly, Rick Blum, director of News Media for Open Government, observed that when political positions are hardened, “public pressure is less likely to change officials’ positions, therefore the ability to petition elected representatives between elections is less effective.

“The first few months of a new presidency focus around putting in place policies or securing legislation that address policy priorities, and we see that over the last few weeks, and there has been little opportunity to see whether officials change positions based on public pressure and input. For that reason, this freedom may be the hardest to assess this quarter. Apart from any particular challenge to the ability to petition, to the extent that positions are hardened, public pressure is less likely to change officials’ positions, therefore the ability to petition elected representatives between elections is less effective.”

– Richard Blum, director of News Media for Open Government

 


Methodology

The grading was performed by 15 insightful panelists from across the political spectrum. These panelists have committed to providing quarterly updates of their grades for at least one year.

Each panelist was sent a survey asking them to assign a grade and add their commentary on each of the five freedoms: religion, speech, press, assembly and petition.

We recommended that panelists start with national/federal-level considerations, but encouraged them to take note of state actions as indicators or precedents. Panelists were advised that this first report card would set the baseline for First Amendment grades, in order to allow us to effectively track future shifts and changes to the state of First Amendment freedoms. For this reason, we instructed our panelists to base their evaluations on more than just the actions taken by the Trump administration during its first 100 days. We also asked them to consider pre-existing conditions (such as laws that pre-date the Trump administration), and issues the Trump administration does not directly control (such as speech on college campuses, or state-level restrictions on protests).

Panelists were asked to use their own criteria when assigning a letter grade, but were advised to consider the following four elements in making their evaluations:

  1. Legislation (passed or proposed)
  2. Executive orders
  3. Judicial decisions
  4. Public opinion

All panelists were encouraged to make comments to explain their grades.

Panelists were instructed to assign each freedom a letter grade, without using pluses or minuses. In selecting the overall grade of a First Amendment freedom for our report card, we used the average of the grades assigned by our panelists.


Panelists

Panelists’ affiliations are noted for identification purposes only.

  • Richard Blum, Director of News Media for Open Government (formerly the Sunshine in Government Initiative)
  • Robert Corn-Revere, lawyer and expert in First Amendment and media law
  • Lucy Dalglish, Dean, Philip Merrill College of Journalism, University of Maryland, and former executive director of the Reporters Committee for Freedom of the Press
  • Richard Foltin, Director of National and Legislative Affairs, American Jewish Committee (AJC)
  • David F. Forte, Garwood Visiting Professor, Princeton University, former Counselor for Legal Affairs, United States Mission to the United Nations
  • Nathaniel Frederick II, Ph.D. Associate Professor of Mass Communication, Director of African American Studies, Winthrop University
  • Lata Nott, Executive Director of the First Amendment Center of the Newseum Institute
  • Mickey Osterreicher, General Counsel for the National Press Photographers Association
  • Ken Paulson, President of the First Amendment Center of the Newseum Institute and former editor of USA Today
  • Brett Scharffs, Francis R. Kirkham Professor of Law and Director of the International Center for Law and Religion Studies at BYU
  • Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review
  • Bradley Smith, Professor of Law, Capital University, founder of the Center for Competitive Politics, and former chairman of the Federal Election Commission
  • Stephen D. Solomon, author of “Revolutionary Dissent,” Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, teaching First Amendment law
  • Mark Trahant, independent journalist and the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota
  • Asma Uddin, Director of Strategy, Center for Islam and Religious Freedom

The First Amendment Report Card was assembled by Lata Nott, Executive director of the First Amendment Center of the Newseum Institute, and Gene Policinski, Chief operating officer of the Newseum Institute.