Jonna Mosoff
Greenwich High School
2013 First Amendment High School Essay Contest
Third Prize
Walter Cronkite once said, “There is no such thing as a little freedom. Either you are all
free, or you are not free.” The First Amendment protects the rights and freedoms of Americans;
once restrictions and exceptions are applied, this freedom disappears. Foreign policy presents
reason for an exception. Yet no matter the reasonableness of the exception, it will still
incapacitate the rights and freedoms that America was founded on, and that is unacceptable.
First Amendment rights are not completely unrestricted; the term “incitement” is used to
indicate a valid exception. Incitement is found most famously in the decision of Schenck v U.S.
[249 U.S. 47 (1919)] where Oliver Wendell Holmes likened incitement to shouting fire in a
crowded theater. John Stuart Mill had expressed a similar view years earlier in 1859, when he
stated, “…even opinions lose their immunity, when the circumstances in which they are
expressed are such as to constitute their expression a positive instigation to some mischievous
act.” (Mill, 94)
Gabe Rottman, in “A ‘Foreign Policy Exception’ to the First Amendment?” references
Brandenburg v Ohio [395 U.S. 444 (1969)]. Brandenburg is the most relevant case to a foreign
policy exception. The per curiam Supreme Court decision stated that a speech by a Ku Klux
Klan member insulting Jews and African Americans could not be prosecuted under Ohio
statutes, as it was protected by free speech. This case provides a direct parallel to the “Innocence
of Muslims” film, as the speech by the Klan member was also in video form.
Neither those in favor of a “foreign policy exception” nor those against it support the
message of the “Innocence of Muslims”. The issue is therefore our value of free speech. Eric
Posner, in “The World Doesn’t Love the First Amendment”, claims that we “overvalue free
speech” and that we, “…have to remember that our First Amendment values are not universal”.
He claims that the values are a unique result of America’s past and terms them, “…A set of
cobbled-together compromises among political and ideological factions…” (Posner) With this I
beg to differ. Our First Amendment rights are hardly, “cobbled-together compromises”; they are
the most important protection of civil rights and liberties. The First Amendment rights are
unique to America; that is why millions of people immigrate to America every year. It is not
possible to “overvalue” the First Amendment, as it is what makes us American.
Posner says that Americans end up with, “the bizarre principle that U.S. foreign policy
interests cannot justify any restrictions on speech whatsoever.” (Posner) Conversely, U.S.
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“foreign policy interests” make the freedom of speech important. We cannot ask other countries
to value our First Amendment rights if we have incapacitated them with restrictions. Justice
Fortas, in the decision of Tinker v Des Moines [393 U.S. 503 (1969)] states, “Under our
Constitution, free speech is not a right that is given only to be so circumscribed that it exists in
principle but not in fact.”
Posner’s last line completes his theory of a “bizarre principle” saying, “try explaining that
to the protestors in Cairo or Islamabad”. (Posner) He writes this as a sarcastic throwaway, but it
is better suited as a motto. Try explaining it to the protestors in the Middle East, because chances
are they will understand. We may take our First Amendment rights for granted, but the protestors
know the value of those rights. They are protesting in the streets of Cairo to gain the freedoms
described in our First Amendment. Restricting the freedoms we have is the antithesis of the
message we need to send overseas.
The death of U.S. ambassador to Libya, Chris Stevens, gave reason to a foreign policy
exception. When one of our own is killed and there is any link to a video we, as a country, might
have stopped, the instinct is to feel guilty, and to ensure going forward that a video like it never
reaches anyone again. However, to restrict our freedoms because of the attack would not honor
Stevens’ memory. In his speech to the U.N. General Assembly, President Obama declared,
“…We must reaffirm that our future will be determined by people like Chris Stevens -- and not
by his killers.” We must continue to uphold those First Amendment rights that made Chris
Stevens proud to be American, not restrict them in deference to his killers. This is not a “new”
concept; in 1938, almost three-quarters of century before Obama spoke to the General Assembly,
the Supreme Court decreed that, “Freedom of speech...protected by the First Amendment from
infringement by Congress, [is] among the fundamental personal rights and liberties which are
protected by the Fourteenth Amendment from invasion by state action.” [303 U.S. 444 (1938)]
The government may not infringe on American’s first amendment rights.
As I write this I am reminded of the movie, “The American President”. In one particular
speech, Aaron Sorkin, the movie’s writer, explains the true nature of free speech. “Let’s see you
acknowledge a man whose words make your blood boil, who's standing center stage and
advocating at the top of his lungs that which you would spend a lifetime opposing at the top of
yours.” The speech continues, referencing Texas v Johnson, “You want to claim this land as the
land of the free? Then the symbol of your country can't just be a flag; the symbol also has to be
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one of its citizens exercising his right to burn that flag in protest.” President Obama echoed the
sentiment this past year, “As President of our country and Commander-in-Chief of our military, I
accept that people are going to call me awful things every day---and I will always defend their
right to do so.” This is what we, as Americans, value and is why a “foreign policy exception”
would be impossible. It is, simply, un-American.
Works Cited
The American President. Dir. Rob Reiner. Writer Aaron Sorkin. Universal Pictures, 1995.
Brandenburg v Ohio. (395 U.S. 444) 1969
Lovell v. City of Griffin (303 U.S. 444) 1938.
Mill, John Stuart. "Chapter III: Of Individuality, as One of the Elements of Well-Being." On
Liberty. J.W. Parker, 1859. 94-95. Google Play. Google. Web. 3 Feb. 2013.
Posner, Eric. "The World Doesn’t Love the First Amendment." Slate. Washington Post, 25 Sept.
2012. Web. 3 Feb. 2013.
"Remarks by the President to the UN General Assembly." Speech. United Nations Headquarters,
New York, New York. 25 Sept. 2012. The White House Briefing Room. The White
House. Web. 3 Feb. 2013.
Rottman, Gabe. "A "Foreign Policy Exception" to the First Amendment?" American Civil
Liberties Union. ACLU, 28 Sept. 2012. Web. 03 Feb. 2013.
Schenck v U.S. (249 U.S. 47) 1919
Texas v Johnson. (491 U.S. 397) 1989
Tinker et al. v Des Moines Independent Community School District et al. (393 U.S. 503) 1969