The First Amendment, among other things, protects free speech against governmental interference or suppression. It is the first item in the Bill of Rights. Its text is as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Although it only mentions "Congress" the amendment has long been construed to apply to the entire Federal Government, including the FCC. Since the passage of the Fourteenth Amendment, it has also been held to apply to all State, County and Municipal governments in the United States as well. Contrary to the belief of many, it has no application whatsoever to private actions. Thus, one only has free speech rights as against governmental entities or officials. There are no Constitutionally-based free speech rights as against private corporations or individuals.

Mark Clark (any relation to the WWII General by the way?) is therefore wrong when he states that the First Amendment is "silent" on the issues raised by Ms. Jones' case. If a privately-owned radio station refused to air her song, no matter the reason, there would not be a First Amendment issue. If, however, the FCC takes an action against prohibiting stations from airing her song then that raises a First Amendment issue because the FCC is a federal government agency.

Ms. Jones' case, in fact, raises a great number of very interesting First Amendment issues since a majority of the US Supreme Court has never held that the First Amendment should be read literally as prohibitting all governmental abridgement of speech. The airwaves, in particular, have been subjected to regulation, approved by the US Supreme Court, of a type that the Court would not approve if a governmental agency did the same thing to a print medium like a newspaper.

Personally, I would like to her win. Whether she will or not remains an open question.

-Bennet Zurofsky, Esq.