Recognizing Current Juror Attitudes Toward the First Amendment

by Jackson Walker

The Newseum Institute's First Amendment Center recently released its annual survey of the "State of the First Amendment: 2013" and the results are cause for pause, though perhaps not alarm. The annual survey, which has a sampling error of +/- 3.2 percent, found that 34 percent of American adults think that First Amendment freedoms "go too far" — up from 13 percent in 2012. Of particular note, 47 percent of 18-30 year olds and 44 percent of 31-45 year olds have this view.

Keep in mind that the survey asked about First Amendment rights in general, not just freedom of speech or freedom of the press. And in fact, in a separate survey answer, 47 percent of those surveyed named freedom of speech as the most important freedom — though, as is often the case, surveys both giveth and taketh away: freedom of the press came in last at 1 percent.

So, what to make of this? Pendulum shifts in public perception towards the First Amendment are not unusual, and the First Amendment Center itself noted that the survey was taken immediately after the Boston Marathon bombings. In the aftermath of 9/11, the First Amendment Center saw a similar shift in attitudes towards the First Amendment as the general population seemed willing to accept less freedom in favor of more security.

The fact that one third of your jury panel most likely thinks that First Amendment freedoms go too far needs to be taken into consideration. However, it will be also be important to distinguish between those who believe that First Amendment freedoms go too far in general and those who believe those freedoms go too far in allowing speech that conflicts with their ideology.

But I think there is another dynamic at work here as well, one that is partially revealed by the responses to another question in the survey and one that has application to those of us defending First Amendment freedoms in front of juries. Seventy-four percent of the people surveyed say that they are more likely to get their news from a source with similar political views. In other words, people are more likely to read, watch or listen to the news and have their ideology confirmed rather than hear both sides of an issue and walk through the "marketplace of ideas" (figuratively speaking) that underscores the First Amendment's protection of free speech. Perhaps that also explains the higher percentage of younger adults who think that First Amendment freedoms go too far, as that group would have come of age in an era when there was a greater opportunity to find a news source that tends to match individual political views. When people who are used to hearing speech with which they agree end up exposed to speech with which they disagree, there is a tendency to think that the First Amendment is not all good.

Knowing juror attitudes towards the First Amendment has always been an important component of jury selection and of developing themes for presentation of a case. Thus, the fact that one third of any given jury panel most likely thinks that First Amendment freedoms go too far needs to be taken into consideration. However, it will be also be important to distinguish between those who believe that First Amendment freedoms go too far in general and those who believe those freedoms go too far in allowing speech that conflicts with their ideology. For the former, unless the case involves national security, it may not be as much of a concern. But for the latter group, it's important to find ways to get them to think about the alternative, perhaps by raising the question: What would happen if more regulation of speech were allowed, including through civil lawsuits? Would you be prepared for the regulation that you seek to impose to be applied to your favorite speaker? Isn't it better that your speaker be given an unregulated platform to counter other views that may be out there rather than to curtail everyone? I have yet to meet the ideologue who did not think that his/her preferred speaker could either outshout and/or outreason those espousing a different view.

Getting jurors acclimated to the concept behind the First Amendment — the marketplace of ideas — first in the voir dire stage, and throughout the presentation of the case, including and perhaps especially in closing argument, can be effective in tempering any reservations they may have about the First Amendment based on cultural or political issues du jour. In any case, given the survey results, those reservations cannot be ignored.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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