Home » News analysis » Does the First Amendment ‘go too far’?

By Ken Paulson, published on October 3, 2024

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Graphic by Leslie Haines

For more than two decades, pollsters surveying American attitudes toward the First Amendment have asked a core question:

“Does the First Amendment go too far in the rights it guarantees?”

It was first asked in 1999 as part of the annual State of the First Amendment survey by the Freedom Forum’s First Amendment Center. It was intended as a table-setter, moving from that initial broad question to specific questions about each of the five freedoms: speech, press, religion, assembly and petition.

The results proved fairly predictable over the years, with about a fifth of respondents saying they thought the First Amendment goes too far. The one dramatic exception came in 2002 when, in the wake of the 9/11 terrorist attacks, the number soared to 49 percent. In subsequent years, the number decreased and never approached a 50-percent level again.

In August, 2024, however, a study issued by the Foundation for Individual Rights and Expression signaled a stunning change in public perception.

The FIRE study concluded that 53 percent of those surveyed said, “The First Amendment goes too far in the rights it guarantees.”

“Evidently, one out of every two Americans wishes they had fewer civil liberties,” FIRE noted in its press release. 

If accurate, our freedoms of speech, press, petition, assembly and religion are in a tailspin, with this decline seemingly coming out of nowhere. News media organizations – many partisan in nature – jumped on the story as evidence that free expression is in great danger.

The Freedom Forum’s release last week of its 2024 survey, however, permits a sigh of relief. It finds that just 13 percent of respondents believed the First Amendment goes too far. Further, the survey found that 63 percent believe the First Amendment “should never be changed.”

What are we to make of the dramatic difference in the findings of two respected institutions? 

Sean Stevens, FIRE’s chief research adviser, says its poll may have been influenced by the options given respondents in the survey. There were five possible choices, only one of which said the First Amendment does not go too far. The other responses all said the amendment goes too far in varying degrees. It wasn’t a yes-or-no question.

“The difference between the FIRE study and its predecessors may be the result of FIRE using different, non-binary, response options,” Stevens said in an email.

The challenge for all who monitor public attitudes about the First Amendment is that this comes against a backdrop of public controversies over campus speech, social media moderation, book banning and other forms of expression. A sudden shift in which Americans feel the First Amendment is in need of renovation would be unsettling, dangerous, and unfortunately more plausible than it has before.

See also: Surveys show boost in Americans’ understanding of the First Amendment

Ken Paulson is the director of the Free Speech Center at Middle Tennessee State University and a former president and executive director of the Freedom Forum’s First Amendment Center.

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