Freedom of Speech & Privacy on the Most Perfect Album

Kate Lechtenberg First Amendment, Privacy

By: Kate Lechtenberg

If you’re a SCOTUS (Supreme Court of the United States) junkie like me, the More Perfect podcast is the little slice of heaven that informs, entertains, and inspires my citizen muscles while I’m mowing the lawn, driving, or washing dishes. This third season of More Perfect podcast offers up episodes focused on each of the 27 constitutional amendments, and they have also compiled 27: The Most Perfect Album, with commissioned songs reflecting on each amendment.  For intellectual freedom lovers, episode 1 offers a new perspective on the First Amendment, and in episode 3, privacy plays a central role in their discussion of the Ninth Amendment.

The poetry of the First Amendment

Each episode in Season 3 of More Perfect, the hosts offer what they call “liner notes” for each amendment, offering historical context and examples to flesh out our understanding of both the amendments and the songs on the album.  NYC law school professor Burt Neuborne describes the First Amendment as a sort of poetic roadmap for democratic ideals.  I’m going to combine several lines of the transcript from the podcast and put them up against the text of the First Amendment so that you can see his analysis:

Burt Neuborne says, “The order of the words in the First Amendment is the life cycle of a Democratic idea.”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof “Create a free space inside your mind to think and believe as you wish. Without that free space, there can be no self-government.”
Or abridging the freedom of speech. “Once you’ve believed and thought something, then then it’s natural for you to want to say it. The speech clause says, if you have an idea formed in the freedom of your mind, by all means go ahead and share it.”
Or of the press “But that’s not enough… if you really want to make a real dent in a society. So you need some way to be able to speak to a mass of people. To speak in a very loud voice.”
Or the right of the people peaceably to assemble “Then, once you’ve gotten your message out to a large number of people, when people have listened to these ideas and moved by them, it’s natural for those people to want to do something about it. To move together, to organize.”
And to petition the Government for a redress of grievances. “But that’s not enough. Finally the petition clause, which is the sixth idea– the petition clause says, once you’ve assembled, once you’ve organized–Then you have a right to take your argument to the government…And force the government into confronting it and either accepting it or rejecting it. And then that government, if it says no, is subject to being voted out of office. So this is Madison giving us the blueprint for democracy. The big bang, when democracy begins.”
Neuborne concludes: “The First Amendment is a series of concentric circles beginning within your mind and then moving to your close acquaintances. Then to the society at large, then finally to the entire polity to the entire people.”
The “trippy” place of privacy

In episode 3, the More Perfect hosts describe how amendments 9-11 aren’t quite as clear and direct as the first eight, and they call the Ninth Amendment “a little bit trippy.” Here’s the text of the amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The hosts describe the 9th amendment as a “cover our ass” amendment that says that the people have rights beyond those articulated in the constitution that aren’t written down–the “nonenumerated rights.”  The hosts ask, does this mean we have constitutional rights to free refills? ice cream for breakfast? Where do we draw the line?
Professor Judith Baer from Texas A & M says that in Griswold vs. Connecticut, a 1965 case about contraceptive use, Justice William O. Douglas held that despite the fact that the word privacy doesn’t appear anywhere in the Constitution or its amendments, “various guarantees create zones of privacy.” He cites the 1st, 3rd, 4th, 5th, and 9th amendments to say that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In short, he argues that privacy is sort of part of the afterglow, the implicit shadow of all these other rights in various amendments.
I’ll let you listen to the episode to hear how the podcast hosts investigate whether Douglas’s penumbra metaphor holds up with scientists who study penumbras, but needless to say, the More Perfect podcast gives us new ways to think about how privacy lives among our enumerated an nonenumerated rights as U.S. citizens. What I love about Season three is that the mixture of song, legal storytelling, and history help me think about my rights in a messy-beautiful human sort of way, defying the easy answers of literalist interpretations.

Kate LechtenbergKate Lechtenberg is a doctoral student in Language, Literacy, and Culture in the University of Iowa’s College of Education. After working in public schools for fourteen years as a high school English teacher and school librarian, her doctoral research now focuses on text selection, multicultural literature, educational standards, and equity initiatives. Kate teaches a young adult literature course in the College of Education and a school librarian course on print and digital collection management in the School of Library and Information Science. She is also a member of the AASL Standards Implementation Task Force. Find her on Twitter @katelechtenberg.

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