In April 1990, at Dobris Castle outside Prague, in a speech about those resonant words in our First Amendment, "Congress shall make no law . . . abridging the freedom of speech," I urged that a new Czechoslovakian constitution take a similarly broad view of what is permissible speech. After all, I said, the Red Army's tanks and troops had been routed only a few months earlier by a million demonstrators whose only weapons were their voices and placards. Rarely before had speech alone toppled a dictatorship.

Dobris Castle was a particularly appropriate site for a speech devoted to a freedom Americans have come to take for granted. It had served as headquarters for the official (and notoriously anti-free-speech) Writers Union prior to the revolution, and many in my audience were still Communist party members. They applauded my remarks as vigorously as the non-Communist academics, justice ministry officials, parliamentarians, and members of president Vaclav Havel's staff who were also in attendance.

Later, when the audience was invited to ask questions, most of the questions were, in fact, short speeches restating my points. Then, one of the enthusiasts, a prime architect of the new constitution, shattered the idyll. "Everything you said was perfect," he said. "But of course one can't be allowed to criticize public officials."

A few minutes later, after one of my American colleagues had outlined the full First Amendment protections, including those related to libel and invasion of privacy, a leading official in Havel's new government complained, "I feel as if I'm in an automobile showroom being shown a Mercedes-Benz when all I can afford is a Skoda."

I suppose I shouldn't have been surprised by these skeptical comments. My colleagues and I were there because we had been asked to give advice on the human rights provisions of Czechoslovakia's new constitution. Some of my colleagues had assumed, naively, that the citizens of a country in which free speech and other basic freedoms had been denied for more than fifty years would easily grasp and enthusiastically embrace legal concepts developed over two centuries in the United States.

Over the last eighteen months my colleagues and I had, in effect, been given a seat at the same table as the "founding fathers" of the new Czechoslovakia. As I listened to Communists, Socialists, Civic Forum Democrats, and others debate which was better -- a strong central government or a loose federation of states -- I often reflected that just such a debate must have taken place in post-colonial Philadelphia. The arguments in favor of and against a central bank -- pitting rich against poor, farmers against manufacturers -- were much the same in both countries and eras. The division between Czechs and Slovaks was reminiscent of the distrust between Yankees and Southerners.

Initially, our own founding fathers papered over these conflicts by establishing a very weak central government comprised of a one-chamber legislature in which each of the thirteen states had a single, equal vote -- a model favored by some Czechoslovakian ethnic minorities. But the U.S. had the luxury of time. When our first political system failed to function, we were able to evolve constitutionally towards a stronger central government. It is not at all certain that Czechoslovakia and other Central European countries, which are being ripped apart by ethnic separatist movements, will have that chance.

The specter of these divisions colored the reaction of Czechoslovakian officials to our proposals. Our hosts chided my colleagues and me for being too tolerant of free speech and for having a court system that is too accessible to ordinary citizens claiming violations of their rights. My response was that I regarded the First Amendment not only as a guarantee of the right of the speaker to say anything, but also as the guarantee of the audience to hear everything. "If you can't say something," I argued, "then you can't think something, and if a society stops you from thinking anything, it ceases to be free."

The response from officials and others was that such logic would allow the Communists to stage massive demonstrations and attempt to topple Havel. How could the Communists -- who had denied dissidents the right to speak freely -- claim this same right to keep the dissidents from governing?

Perhaps the most contentious issue of all concerned the question of whether the new government should open all the secret archives of the Communist regime and allow the press to exercise full freedom in disclosing their contents. During their forty years in power, the Communists kept files on hundreds of thousands of people, ranging form employees of the secret police to unwilling collaborators, including many who gave information without knowing they were speaking to a secret agent. Frequently the agent took the information, embroidered it, and told his superiors that he had, in fact, turned the source into a paying collaborator. The agent would then collect money from his superiors, allegedly to pay off the collaberator, but would pocket it instead.

As a result, much of the information in the Communist government archives is totally false. Making those secret files public, in accordance with Western legal concepts, would ruin thousands of innocent lives.

Aware that calls for the release of the unexpurgated archives are being made in the spirit of vengeance against the Communists, President Havel worries that if scores are settled against the vast number of people implicated in the old order, there will be little chance to carry out the political and economic reconstruction of the country. His attempts to prevent the press from disclosing the secret files have resulted in charges of censorship.

"There are journalists trying to get hold of the list in order to publish it," said Michael Zantovsky, Havel's press secretary. "And, of course, it would be a major scoop. Well, we thought about it and decided that anyone who publishes this list will go to jail. Not because most of those people weren't guilty, but because some of them were victims rather than perpetrators of wrongdoing. We just happen to think that the damage caused by the publication of such a list would justify sending someone to jail."

Last January, after more than a year of such debate, Czechoslovakia adopted a free speech provision. Drawn both from the U.S. Constitution and the European Convention on Human Rights, it reads:

Freedom of expression and the right to information are guaranteed.

Everybody has the right to express freely his or her opinion by word, in writing, in the press, in pictures, or in any other form, as well as freely to seek, receive, and disseminate ideas and information irrespective of the frontiers of the State.

Censorship is not permitted.

The freedom of expression and the right to seek and disseminate information may be limited by law in the case of measures essential in a democratic society for protecting the rights and freedom of others, the security of the State, public security, public health, and morality.

The first three paragraphs are wonderful. The fourth is potentially disastrous because its language is so broad that it could provide the underpinnings for a return to totalitarianism. After all, the Communist regime often invoked reasons of state security to nullify basic human rights.

Even in the United States, government officials have attempted to use such "reasons" to stamp out speech they find unfavorable. The difference is that we have had a long-evolving process of constitutional adjudication which has, to a considerable extent, defined the permissible limits on freedom of speech. In the Eastern European context, however, code words such as "state security" and "public security" are taken by many to mean unbridled state power. If anything, the language in Eastern European "first amendments" should be more protective of freedom, not less, than our own Constitution. If there must be written exceptions to free speech in a constitution, a premise that I do not accept and that has been disproved by our own national history, those exceptions should at least be carefully delineated.

Of course, even a perfectly worded constitution cannot by itself guarantee speech and other freedoms. There mut also be enforcement mechanisms -- the laws and courts to ensure that constitutional rights are upheld. And in this respect, Czechoslovakia, like the rest of Eastern Europe, is at a great disadvantage.

The judges now in place were nearly all appointed by the Communists. When I think of them, I recall the famous words of Charles Evans Hughes, who, prior to his appointment as Chief Justice of the United States, said, "We are under a Constitution, but the Constitution is what the Judges say it is." The problem is that these judges have no coChronicle GOING PUBLIC MARYLAND by Terence A. Dalton Dalton teaches journalism at Western Maryland College in Westminster. When Maryland's new open-meetings law takes effect next July, no one in the state will be happier than Nancy McCaffrey, a thirty-eight-year-old mother of two who has crusaded for openness in government in the small community of Poolesville since she moved there in 1983. Poolesville, about thirty-five miles northwest of Washington, had won a reputation as the state's worst offender have been allowed to express themselves freely in favor of or against government policies. But with the passage of time it is likely that the state-owned media will tend to express government views or at least conform to official guidelines. The privatization of large parts of the Czechoslovakian economy may eventually create a privately owned press. For now, though, there is an acute shortage of the capital necessary to launch independent publications or buy exiting ones from the government. Where then will free speech find a platform? Perhaps a system of tax credits or other noninterfering government assistance will be needed for the time being.

Given all these controversies and limitations, the new Czechoslovakia's founding fathers have probably done the best they could. Laws cannot outpace political, social, and economic realities. What is important is that the Czechoslovaks have forged a constitution that allows for flexible interpretation and the future evolution of key legal concepts such as freedom of speech.

As I ponder the drafting of their constitution, I can't help thinking about the debate now raging in the United States over the "original intent" of the framers of our own Constitution. Conservatives like Robert Bork and Edwin Meese maintain that if you look long and hard enough at the U.S. Constitution you can determine precisely what was in the minds of its framers. But perhaps if American jurists who side with Bork, Meese, Chief Justice Rehnquist, Justice Scalia, and Justice Souter were to experience what I experienced in Czechoslovakia, they might realize just how difficult it is to discover "original intent."

I spent days and weeks of discussions with the framers of the Czechoslovakian constitution, and I would be hard pressed to decipher an "original intent" that united them all. Years ago, in our own country, there appeared the now-famous Brandeis brief, written by the great justice Louis Brandeis as an attempt to keep constitutional interpretation in step with the sociological and economic realities of the present, not the past. Brandeis made the point that the "intent" of the framers of the meaning and application of which would evolve over changing times and circumstances, and which would be interpreted by an independent judiciary fully briefed on the contemporaneous social and economic impact of its decisions. I suspect that Czechoslovakia's new founding fathers might find more common ground with Brandeis than with today's Supreme Court majority.

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