The Tully Center for Free Speech

Free Speech Zone

The First Amendment and the Primary

By Roy Gutterman, January 31, 2012

In the week preceding the highly anticipated New Hampshire presidential primary, the First Amendment was in full application.

Accompanying a group of political reporting students covering the primary for newspapers and radio stations, I had the opportunity to spend a week in New Hampshire watching the Republican candidates slug it out.  Attending several campaign events every day with some students while reading the newspapers, monitoring the internet and watching local and cable television, was a real Constitutional lesson.

In addition to enjoying the scrum of presidential hopefuls, I focused on the First Amendment implications of what surrounded us and consumed the state of New Hampshire.

All the rights afforded under the First Amendment were actively engaged every day: freedom of religion, speech, press, assembly and the petition of government.

To break it down, let’s look at it in the reverse order … 

At its most basic, candidate after candidate, speech after speech, question after question, the primary and electoral system provides Americans with a chance every four years (at least for president) to complain about and criticize the government and public policy.  Whether it was Mitt Romney criticizing the president for his jobs policies, Newt Gingrich touting his brand of conservatism and supply-side economics, Jon Huntsman noting both fiscal and trust deficits in government, Rick Santorum speaking on faith and morality or Ron Paul complaining about government in general, the candidates criticized government and current leaders.  So did their supporters, sometimes rabidly.

From an assembly standpoint, whether it was street corners with supporters waving signs in below-freezing temperatures or packed school gymnasiums, conference centers or airport hangers, people gathered to cheer, yell, question and interact with candidates. In other words, people assembled.

There was plenty of press, too.  Local, national and international media converged on the Granite State.  At some events there seemed to be as many reporters and camera people as there were potential New Hampshire voters. Reporters seemed to be tripping over themselves, sometimes literally, for a story, while exercising their First Amendment rights.

Camera operators jockeyed for the right place to set up their tripods, pushing people out of their way if they obstructed a shot. At one event, reporters from Austrian and German radio stations twice asked to interview me as a potential voter.  I flashed my own notebook and declined.  Reporters from the BBC staying at our hotel seemed amused by the spectacle.

When it comes to an election and public policy, though, the press serves an important role in helping inform the public and provides a check on those in office and running for office.   Critics complain that the press focuses on horserace aspects of the campaigns or covers frivolous issues about candidates, such as a candidate’s penchant for sweater vests, but in covering the totality of the primary process the press fulfilled its most basic function under the First Amendment – informing the public about important public policy issues.

Of course, all the aforementioned rights are all interwoven with the larger right of speech.  In political spheres, courts have recently equated campaign spending and donating to political campaigns as a form of speech.   And, there was plenty of talk about money on the campaign trail, especially with Super PACs.

But a more conventional definition of speech could be seen with the cheers and even the protests.  The Occupy movement, which was camped out in a park on Manchester’s Elm Street, also popped up repeatedly at campaign stops.  At a Romney spaghetti dinner at a private school in Tilton, two young women associated with the Occupy movement stood up and chanted about Bain Capital.  One woman stood on a chair and timidly yelled before stepping down – before a Romney staffer nearly tripped trying to pull her down.

One of the first heckler moments in the week came at a Santorum event in Concord when two college students grilled the candidate about his conservative views on gay marriage, prompting not only a confrontation but a bizarre answer. As he argued with the questioner, Santorum went to the extreme, asking whether it would be legitimate to have five gay spouses.  I could not get a good view of the two people asking the questions, but it led to the only newsworthy moment at his speech and one of the most newsworthy moments of the week.

Perhaps the most entertaining confrontation came at another Romney rally in Exeter. When protesters yelled, “Romney kills jobs,” the candidate responded, “Happy to have you express your views. Next time do it with more courtesy.”

When the same protesters interrupted New Jersey Gov. Chris Christie’s metaphoric speech on the American pie, he was more confrontational in response to the yells of “Romney kills jobs” and “Christie kills jobs.”  Christie told the female hecklers, “Something may go down tonight but it ain’t going to be jobs, sweetheart.”  It might not have been refined political debate, but it was still an interesting moment.

Which brings us finally to the First Amendment’s protections of religion – free exercise and freedom from state sanctioned religion.  Ordinarily, this clause should have nothing to do with a discussion of political issues.  However, this being the Republican presidential primary, candidate after candidate frequently inserted religion into the debate.  It is great that Americans can practice or not practice their religion.  If a leader or future leader seeks guidance or solace from faith, well, the First Amendment protects that right, too.  But religion and public policy must also be rigidly separated under the First Amendment.

In all, this annual democratic spectacle also puts the First Amendment to the test.  And, political speech sits at the heart of the First Amendment.