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4.2.12
WC: 191694

Part II: The changing sound and look of freedom of speech: from the Pentagon Papers to Wikileaks and from Harry Reems’ Deep Throat to Woodward and Bernstein’s “Deep Throat.”

Chapter 5: The Changing First Amendment—New Meanings For Old Words

I always wanted to be a First Amendment lawyer. Everything in my upbringing and education led me to the defense of freedom of speech. I was always a dissident—though they used the less polite term “trouble-maker.” I argued with everyone, all the time. I defended other trouble-makers. I questioned everything and everybody. I may have had a Fifth Amendment right to “remain silent,” but I rarely exercised it. I spoke up. For me, the freedom to speak, to write, to dissent, to seek a redress of grievances, to assemble, to doubt, to challenge, has always been central not only to democratic governance but to life itself. The First Amendment has always been my favorite part of the Constitution, not because it is first among the Amendments—in its original, proposed form, it was the Third Amendment²⁵—but because without its protection, all other rights are in danger.

Not everyone agrees. Listen to Charlton Heston: “I say that the Second Amendment is, in order of importance, the first amendment. It is America's First Freedom, the one right that protects all the others. Among freedom of speech, of the press, of religion, of assembly, of redress of grievances, it is the first among equals. It alone offers the absolute capacity to live without fear. The right to keep and bear arms is the one right that allows 'rights' to exist at all.”

Both history and geography have proved Heston wrong: Nearly every other freedom loving country in the world has severe restrictions on gun ownership; while none has severe restrictions on expression.

The stirring words of the First Amendment—“Congress shall make no law…abridging the freedom of speech or of the press…”—haven’t been amended between my first case defending freedom of expression in the 1960s and my most recent one, but the meaning of these words has undergone dramatic transformation over the past half century. The major reason has been the rapid change in the manner by which speech is transmitted. Technology has altered the sound and look of freedom of expression.

Over the past 50 years I have defended every means, manner and mode of expression from films to plays, books, magazines, newspapers, photographs, leaflets, pamphlets, megaphones, websites, internet postings, speeches, heckling, cartoons, faxes, composites, noises, threats, incitements, videos, ads, prayers, classes, live and filmed nudity (frontal, sideal, backal), defamation, blasphemy, and digital communication (by which I mean a raised middle finger).

I have defended right wing Neo Nazi and racist speech, hard left Stalinist rhetoric, soft core erotica, hard core pornography, nude photographs of children and disgusting videos of bestiality. I have defended the right of major newspapers and book publishers, as well as anonymous and not-

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²⁵ Congress originally voted to submit 12 Amendments to be ratified by the States. The First and Second—which dealt with the size of Congress and the compensation of Senators and Congressmen—were not ratified and the Third Amendment became the First.

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