Cartoons, T-shirts and more: why the First Amendment protects what offends

By Gene Policinski
First Amendment Center

Why does the First Amendment protect those who are showing and saying things many of us would rather not see or hear?

That question was raised recently in three very different situations:

-- News reports a few weeks ago said that among the offerings on the ubiquitous YouTube, the free electronic video-sharing site that lets virtually anyone post clips, home movies and such, was a series of racially offensive cartoons that had been out of public view for four decades.

-- A reporter for a French online news service called the First Amendment Center to inquire why U.S. law protected the right of self-styled American Nazi skinheads to march within sight of the U.S. Capitol in April, carrying signs that the reporter said contained racial slurs against illegal immigrants.

-- In Illinois on April 27, the 7th U.S. Circuit Court of Appeals voted to allow a high school student to wear a "Be Happy, Not Gay" T-shirt to school while his case proceeds, over the objection of school officials, who said the shirt's message offended some students and faculty.

Let's consider each circumstance.

The cartoons - a series of 11 produced by Warner Brothers in the 1940s, according to a New York Times story - were controversial even when they were originally released. In 1943, the Times reported, the NAACP protested the stereotyped images and language as demeaning portrayals of black citizens. Withdrawn from public view in 1968, according to several sources, the series surfaced on YouTube and prompted an online debate on many sites about whether the clips should be available to a new generation of viewers.

The French reporter's inquiry was rooted in a bit of history, too. Don't Americans realize, she said, that permitting racist groups even a moment in the public consciousness could lead to horrible developments? Europeans, she noted, had "experience" with such things - and in most nations on that continent, public displays raising Nazi memories would be banned.

The Illinois T-shirt case and others like it in recent years pit student-speech rights against school administrators' claims that offensive images and words disrupt teaching, interfere with order or impinge on other students' rights. Other clothing-and-accessory disputes have arisen over images recalling the Confederate battle flag, seen as racist by some and simply historical by others, and over religious symbols worn as pendants or pins.

Yes, there may be momentary appeal to the notion that life in America would be better if we didn't offend each other so often. And an "orderly" school process would seem to advance education.

But think again. Hearing ideas and experiencing different points of view can, at the very least, alert citizens to what political opponents or social opposites are thinking. Those same First Amendment protections that shield the offensive speech from government censorship also protect those who would speak out in opposition.

And the give-and-take among ideas and those who express them is fundamental to the very- American concept that "truth" will, in the long run, win out in a free and open marketplace of ideas.

The nation's founders had experience with a system that decided, in advance and sometimes with a royal claim to divine guidance, what was "truth" and what was not. They designed a system that not only keeps the government from controlling our speech, but that also challenges us to speak out - to go on the offensive against that which offends.

T-shirts, protest signs and even bigoted cartoons from an earlier, insensitive generation not only offend, but also prod us to take stock of the ideas they advance - and what we might say in opposition. And that's how free speech works.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.