First Amendment Report Card – Fall 2017

This quarter, the composite grade point average for the five freedoms of the First Amendment dropped to 2.25 — still a C+, but a more precarious one — in the third installment of the Freedom Forum Institute’s First Amendment Report Card, released on Oct. 16, 2017 in observance of Free Speech Week.

In this evaluation by a team of First Amendment experts, the grade point averages for speech and assembly dropped significantly; the composite grade remains the same only because of the balancing effect of slight improvements in the grade point averages for press and petition. Religion’s grade point average remained almost the same.

The press rating may surprise those who see the ongoing attacks by President Trump against the news media — in particular, his tweets suggesting a review of NBC’s government operating license. But statements like these are more theatrical than threatening. As in the first two quarters that were rated, Trump’s bluster has yet to be backed up by legislative proposals or legal action.

But why the slight rise in the grade? This was not necessarily because our panelists believed that the threats to the press had been eliminated, but rather because (1) the press has shown itself to be resilient in the face of threats, and (2) our panelists have grown accustomed to things that, in previous quarters, seemed more alarming to them.

The main events on our panelists’ minds this quarter? Football players kneeling during the national anthem in an act of silent protest (and President Trump lashing out at them for it on Twitter); the third incarnation of the Trump administration’s travel ban; protests against conservative commentator Ben Shapiro at University of California, Berkeley; the release of a study from the Brookings Institute indicating that the majority of college students neither support nor understand the First Amendment; the revelation that Russian operatives used social media to spread fake news and amplify political divides during the 2016 presidential election; and the white supremacist rally that took place in Charlottesville, where violent clashes left one woman dead.

The events that took place in Charlottesville loomed large over this report card. Many of our panelists noted that the violence that occurred there has led to an erosion of public support for freedom of assembly, and to state and local governments taking actions to restrict this right. Unsurprisingly, assembly tumbled from a B- to a C this quarter. This quarter it has the lowest grade point average of all of the freedoms of expression, taking the spot previously held by freedom of the press.

The Freedom Forum Institute’s First Amendment Center launched the report card in April to evaluate the state of each of the five freedoms of the First Amendment in the age of Donald Trump. The Fall 2017 report card is based on the opinions of the same panel of 15 First Amendment experts — academics, lawyers, journalists and activists — from across the political spectrum who contributed their insights to the Spring 2017 and Summer 2017 report cards.

We asked our panelists to start with their grades from the previous quarter’s report card and alter or confirm them based on changes in legislation, executive orders, judicial decisions, and indicators of public opinion that have occurred since the last report card. Please note that this includes issues, such as speech on college campuses or state legislation, that the Trump administration does not directly control.

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

Freedom	Spring 2017	Summer 2017	Fall 2017
Religion	C+ (2.20)	C+ (2.40)	C+ (2.36)
Speech	C+ (2.40)	C+ (2.27)	C (2.00)
Press	C (2.00)	C (1.93)	C (2.07)
Assembly	B- (2.53)	B- (2.67)	C (1.87)
Petition	B- (2.80)	B- (2.80)	B (2.93)
First Amendment Composite	C+ (2.39)	C+ (2.41)	C+ (2.25)

Religion

C+

Freedom of religion retained its C+ average from last quarter, with only a slight dip in grade point average (2.36, versus 2.40 last quarter). Once again, “B” was the most commonly awarded grade.

In the previous two quarters, the Trump administration’s travel ban was a major factor our panelists’ assessment of freedom of religion. This remained true this quarter, but now that the travel ban is in its third iteration, many of the panelists opted to take a “wait and see” approach until the Supreme Court delivers the final say on whether or not the ban will survive.

Still, some panelists docked some points from religious freedom on account of the greater scope of the new travel ban. Rick Blum, director of News Media for Open Government, wrote that, “This quarter religious freedom dropped a full grade as the administration’s travel ban on six predominantly Muslim countries was extended (and expanded to include North Korea and Venezuela).” Similarly, Nathaniel Frederick, professor of mass communication at Winthrop University, took issue with the addition of Chad to the list of countries targeted by the ban, stating that, “This administration’s ban on the country of Chad seems religiously motivated, given that Chad had been an ally in fighting terrorism with the United States and the West.”

Outside of the travel ban, David Forte, professor of law at Cleveland State University, noted a positive development for religious freedom: “The protection of pastors who speak politically from the pulpit is a welcome advance in freedom of religion.” And Mark Trahant, professor of journalism at the University of North Dakota, brought up the limited nature of most of the national conversations about religious freedom.

“So much of the discourse about freedom applies only to Christianity, not to Islam, or to tribal religions that have a history that is older than this country. One illustration of that is the United States has not responded to an inquiry from the Special Rapporteur on Freedom of Religion or Belief about the rights of Native American prisoners and their right to practice.”

– MARK TRAHANT, independent journalist and the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota

Speech

C

“I was all ready to improve this grade, but then Ben Shapiro came to Berkeley, Middlebury issued its speaker guidelines, and the poll on Millennial attitudes toward free speech came out. Apparently now, at least on college campuses, you’re free to speak only if you pay for security or promise not to generate controversy — and come to think of it, maybe some speech is just too offensive to allow in the first place. Heckler’s veto, snowflake psychology, call it what you will: our culture among young people (and I say this as a late-Gen Xer) isn’t healthy.”

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

Freedom of speech dropped from a C+ to a C (its grade point average fell to 2.00, versus 2.27 last quarter). Since the launch of this report card, our panelists have steadily grown more pessimistic about this freedom. While in Spring 2017 freedom of speech had just as many B grades as C grades, in Summer 2017 more than half of our panelists awarded it Cs. In this quarter just as many panelist awarded Ds and Fs as awarded C grades.

Issues involving free speech (or lack thereof) on college campuses continue to be a concern for our panelists, although the specific controversies change every quarter (this quarter’s controversies are aptly summed up in the above quote from Ilya Shapiro).

Almost every panelist brought up football player Colin Kaepernick’s decision to take the knee during the national anthem and President Trump’s open criticism of him for this. However, panelists’ disagreed about what this controversy says about the state of free speech in America. Stephen Solomon, professor of First Amendment law at NYU, found a silver lining in the tolerance and support for free expression shown by private actors such as the football teams (who, as private entities, could legally fire players for not standing for the national anthem, but have chosen not to do so). But other panelists took issue with the Trump administration’s hostile stance towards free speech. Nathaniel Frederick, professor of mass communication at Winthrop University, issued a failing grade, stating that, “The administration’s willingness to advocate for the firing of journalist Jemele Hill and football players for exercising their First Amendment right is troubling.”

Our panelists were by and large less concerned about actual legislation impacting the freedom of speech, although Brad Smith, founder of the Center for Competitive Politics, noted that it was a possibility: “The biggest short-term threat to free speech is that Congress will overreact to reports of Russian Facebook ads, and pass overreaching legislation that does far more to limit the rights of Americans than the influence of Russians.”

“Vice President Pence traveled to an NFL game at great public expense for the sole purpose of walking out moments after he arrived to protest NFL players taking a knee to express their First Amendment rights to express themselves regarding civil rights abuses. The government’s “Big Fail” came even as they exercised that very right itself by politicizing and taking a constitutionally detrimental public position against one of our greatest rights.”

– MICKEY OSTERREICHER, GENERAL COUNSEL FOR THE NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION

Press

C

“Can anyone doubt that our press is more feisty and anti-administration than it’s been in years?”

– Bradley Smith, Professor of Law, Capital University, founder of the Center for Competitive Politics, and former Chairman of the Federal Election Commission

In the previous two quarters, the right to a free press received the lowest grade point average of all five First Amendment freedoms (earning a 2.00 in the spring and a 1.93 in the summer). This quarter its grade point average crept up to 2.07, catapulting it into third place among the five freedoms.

Part of this change of fortune is a result of how poorly speech and assembly are doing this quarter. But it can also be attributed to the fact that the threats facing the free press, while significant, haven’t changed all that much in the past few months.

In the previous quarters, our panelists expressed concern over the Trump administration’s hostility towards the press and the specter of fake news. Most panelists noted that these challenges still exist, and have not diminished in any way in the past few months. As Mickey Osterreicher, General Counsel for the National Press Photographers Association, pointed out, in some ways they’ve gotten worse: “Doubling down on his tweet #fakenews tirades whenever President Trump does not like a news report, he now is taking it one step dangerously further by threatening to look at NBC’s FCC License.”

But panelists’ reactions to incidents like this was more muted, this quarter, perhaps because this state of affairs, once unprecedented, is now the norm and the press carries on despite it.

“On the bright side: Major news organizations continue to ignore threats from President Trump and invest scarce resources in investigative reporting, fulfilling their watchdog role over the workings of government and public officials.”

– Stephen Solomon, Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, teaching First Amendment law

“The Press is so polarized that it seems to be retreating to a Civil War era where important media outlets can only be viewed as extensions of political parties. Our most prestigious press institutions continue to embarrass themselves for their unbalanced coverage of political events.”

-Brett Scharffs, Francis R. Kirkham Professor of Law and Director of the International Center for Law and Religion Studies at BYU

Assembly

C

The freedom of assembly suffered a precipitous drop this quarter, from a 2.67 to a 1.87. In the previous two quarters, panelists took note of the myriad peaceful protests and marches that were taking place, and the government’s general support of them. Their forecasts for this freedom were largely optimistic.

This quarter, they awarded freedom of assembly 4 Ds and 1 F.

What happened? The Charlottesville protests, of course. The violence that occurred there has had a ripple effect that has eroded much of the public support for this freedom. As Rick Blum, director of News Media for Open Government, noted, “Protests and counter protests should make us appreciate our First Amendment right to assemble, associate with one another and peacefully express our viewpoints; however, violence marring those assemblies, divisive rhetoric and a quiet movement in state legislatures to limit protest makes this a dismal time for the right to assemble.”

A panelist who wished to remain anonymous predicted that government restriction of this freedom would soon be on the rise, stating, “We have seen the tip of the iceberg when it comes to efforts to restrict assembly. Colleges and local governments are considering policies that restrict demonstrations and protests. And the public increasingly seems to support such efforts.”

“This is not a good time for freedom of assembly. With neo-Nazis crawling out of the sewers and grabbing their tiki-torches to mount nighttime parades and white supremacists showing their true colors, even the ACLU has begun to question its historic commitment to First Amendment principles. Meanwhile, a state ACLU director was shouted down and silenced at William and Mary by Black Lives Matters activists with slogans like “the revolution will not enforce the Constitution” and “shame . . .shame . . .shame.” (Apparently, the irony of adopting the chants of fictional murderous religious fanatics from Game of Thrones was lost on them.) And so-called “antifa” rabble-rousers claim the right to violently disrupt other speakers in the name of liberation. And if that were not enough, legislators in 20 states have proposed measures to limit public demonstrations, largely targeting progressive causes. These are symptoms of larger issues, but answers to these problems will not be found in censorship and vigilantism.”

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

Petition

B

“Ironic. This may be the strongest freedom right now, especially if you consider lobbyists the primary benefactors. Lobbyists have more access to Congress and the administration than in recent years. But this represents a political divide because groups that are not aligned with the current government have the freedom to petition, but without effectiveness.”

– Mark Trahant, independent journalist and the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota

Once again, petition achieved the highest grade point average of all five First Amendment freedoms. It even improved its record, increasing from a 2.80 to a 2.93.

This may be because most panelists had very little to comment upon, positive or negative, with regard to the freedom of petition. The majority of panelists awarded it a “B” grade — a fair assessment, given that there haven’t been any policies enacted that would actually curb this freedom.

But a couple of panelists pointed out that while the people are still free to petition, their petitioning isn’t really fulfilling much of a purpose. At least, not for ordinary citizens.

“All media brim with comments about public policy, a sign of the health of the right of petition. But Senate Republicans continued their refusal to hold hearings on their legislation to repeal and replace Obamacare. This shut out people of all persuasions from directly addressing legislators with their ideas to make the vast health care system work better.”

-Stephen D. Solomon, author of “Revolutionary Dissent,” Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, teaching First Amendment law

Methodology

The grading was performed by 15 expert 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. For this report card, we asked our panelists to start with their grades from the previous report card and alter or confirm them based on changes in legislation, executive orders, judicial decisions, and indicators of public opinion that have occurred since. Please note that this includes issues, such as speech on college campuses, or state legislation, that the Trump administration does not directly control.

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:

Legislation (passed or proposed)
Executive orders
Judicial decisions
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)
Nathaniel Frederick II, Ph.D. Associate Professor of Mass Communication, Director of African American Studies, Winthrop University
David F. Forte, Professor of Law, Cleveland State University, former Counselor for Legal Affairs, United States Mission to the United Nations
Lata Nott, Executive Director of the First Amendment Center of the Freedom Forum Institute
Mickey Osterreicher, General Counsel for the National Press Photographers Association
Ken Paulson, President of the First Amendment Center of the Freedom Forum 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 Freedom Forum Institute, and Gene Policinski, chief operating officer of the Freedom Forum Institute.