The First Amendment - Essay Example

The First Amendment to the Constitution of the United s of America represented the first ratification to the Constitution. It s back to 1791 and guarantees the Freedom of Religion, Speech, Press, Assembly and Petition. It states: 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 (The United States Constitution, http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti) The First Amendment speaks to the very heart of what it means to be an American. In guaranteeing the freedom of religion, speech, press, assembly and petition, it ensures that each and every individual in the United States is offered some rudimentary inalienable rights. With these rights comes the inescapable task of responsibility. These responsibilities were not clearly delineated in the constitution. In fact, the notion of free speech has been challenged to a great degree in that it is very esoteric in nature and when exercised to the full extent, it holds the potential of endangering lives. This paper will present an in-depth examination of the right to free speech and the notion that there should be a limit placed on such a right. First and foremost, the First Amendment refers to the rudimentary freedom of expression. At the forefront of the freedom of expression is the notion of freedom of speech. This freedom facilitates the expression of individuals without the interference or constraint of the government-federal or state. It, however, operates under the assumption that this freedom may be limited if it proves to be detrimental to others or infringes upon the rights of others. One such case is one in which a person's freedom to speak serves to effectively and efficiently facilitate a breach of peace or cause violence. In those cases the Supreme Court places a stringent requirement on the government wherein there must be a justification for the actions of the government to interfere or otherwise regulate those rights. Freedom of speech is not limited to verbal expression. It extends to other mediums which facilitate communication (Cornell School of Law-First Amendment, http://www.law.cornell.edu/wex/index.php/First_amendment). Substantive treatments of freedom of speech in the United States tend to be Court-based, meaning they focus primarily or entirely on Supreme Court decisions. Studies such as James E. Leahy's The First Amendment. 1791-1991: Two Hundred Years of Freedom (1991), Rodney A. Smolla's Free Speech in an Open Society (1992), James Brewer Stewart's The Constitution, the Law, and Freedom of Expression, 1787-1987 (1987) and Cass R. Sunstein's Democracy and the Problem of Free Speech (1993) all exhibit a similar tendency-the tendency to frame or categorize Free Speech in terms of various "issues." and then to clarify each of those issues by relying on specific, "landmark" decisions, or a chronology of decisions, by the Supreme Court. In A Worthy Tradition: Freedom of Speech in America, for example. Harry Kalven, Jr. begins by exploring the concept of "Content"-in terms of "Heresy and Blasphemy" (Cantwell v. Connecticut, 1940: Burstyn v. Wilson, 1952: Epperson v. Arkansas, 1968: Torcaso v. Watkins, 1961) then "False Doctrine" (Kingsley Pictures v. Regents. 1959: Street v. New York. 1969): and "Taste" (Hannegan v. Esquire. 1946: Winters v. New York. 1948: Cohen v. California. 1971; Chaplinsky v. New Hampshire. 1942). While limited in ways, these approaches do reveal one important thing-the inadequacy of these definitions of Free Speech. At the very least, they show that the various Courts have always been in the business of weighing Freedom of Speech against other interests and values- which is to say that the Courts have never construed Freedom of Speech as even remotely absolute. Contingencies such as location (public/private, for example), situation (as in the potential for creating a public disturbance), audience(s) (such as children), and point in time (as in during a war), have often been considered by the Court and influenced its decisions. What Court-centered approaches do not reveal, however, is how cultural values function, to construct both Supreme Court decisions and social debate on those issues. Historically, certain values and interests have consistently weighed more, some less. Among those weighing more were the individual, governmental authority and public 'safety' (broadly construed) while those weighing less include civil and human rights- personal safety, freedom from intimidation and harassment, dignity, etc...-for groups and members of groups that are traditionally and systematically underrepresented, excluded, oppressed and systematically marginalized. These individuals include women, racial and ethnic minorities, lesbians and gay men. In other words, a dominant (in this case white, male and the economically privileged) perspective delimits what kinds of contingencies can be considered and in what ways. In Skokie, Illinois, for example, the Court's determination- allowing a neo-Nazi march through a predominantly Jewish neighborhood- dismissed the relevance or importance of location and audience, upholding the principled right to freedom of expression over the civil right to freedom from intimidation and harassment. Academic and theoretical approaches to Freedom of Speech have been unable, and/or unwilling, to deal critically with the complexity of Free Speech issues on this level: that is, on the level of a socio-political context that is always already loaded, stacked, or slanted in favor of certain groups- white, male, economically privileged, and/or heterosexist and/or homophobic- and against others. In fact, most Free Speech doctrine refuses to deal with that context at all. Presently, the dominant position falls under the heading I will refer to as "liberal doctrine." Like the corresponding political spectrum, in which "liberal" and "conservative" are understood as the reasonable "extremes" (even "alternatives"), free speech doctrine is limited in scope, and both traditional and liberal approaches function to maintain existing privilege, to the exclusion/oppression of others. One of the earlier attempts to demystify the concept of Freedom of Speech was made by Jeremy Bentham in his "Anarchical Fallacies". In this work, he proliferated the popular notion that freedom of speech is the right of each and every individual. This right, however, must be tempered by the law in such a manner as to prevent its exercise by one individual from impeding that of others. Essentially, there must be laws in place to prevent individual citizens from interfering with the rights of the community at large. Furthermore, Mr. Bentham maintained that if the rights of an individual have been impeded, there must be remuneration of at least equal benefit. This idea was radical; however, it served to establish the basic tenets of governmental involvement in the protection of the freedom of speech (Bentham, 1824). In addition to the substantive treatment of the freedom of speech which purports that there should be limits placed on freedom of speech, a clear philosophical basis for unilateral freedom of speech has been proposed by James Mill. Mill, a utilitarian, believed in the concept of relativity of good. According to this concept, good actions were delineated as those actions which produced the most happiness for the majority of individuals within a given jurisdiction. In his work entitled 'On Liberty' he examined freedom of speech and determined that it was vital in the production of the greatest happiness for the greatest number of individuals. Additionally, he indicated that long-term happiness can only be achieved through the acquisition of knowledge which can only be attained through the ability to speak freely. The right of freedom of speech is one that has been seen as a rudimentary right of each and every individual and guaranteed by the United Nations. In the Preamble of its Universal Declaration of Human Rights adopted in the General Assembly on December 10, 1948 the United Nations purports that: "Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people." (United Nations, 1948). The Universal Declaration of Human Rights, however, was very esoteric in nature in that it did not delimit freedom of speech. Essentially, it did very little to clarify the scope and ramifications of freedom of speech. It only guaranteed freedom of speech. After having examined the notion of the freedom of speech framed within the context of the First Amendment to the Constitution of the United States, the Utilitarian philosophies of Mill and Bentham as well as the Universal Declaration of Human Rights, it is blatantly obvious that the freedom of speech is one that is guaranteed to individuals by virtue of being members of the human race. This guarantee, however, is significantly ambiguous in nature and holds the potential for litigious action taken on a case-by-case basis with precedents being set along the way. Essentially, the law as it stands maintains that freedom of speech is not an absolute guarantee. There are bounds placed on this freedom. These bounds continue to be challenged on an ongoing basis. One of the most poignant challenges to the freedom of speech can be seen in cases which challenge the conveyance of obscenity and indecency is that of Butler v. Michigan (1957). In this case a man was convicted for the intentional and willful sale of a book whose contents were deemed obscene, immoral and lewd. The book was also described as containing lascivious language and descriptions. Additionally, the book served to incite minors to violence and immoral acts. It was the claim that this book attempted to corrupt the morality of the young. In this case, it was ruled that: Any person who shall exhibit upon any public street or highway, or in any other place within the view of children passing on any public street or highway, any book, pamphlet or other printed paper or thing containing obscene language or obscene prints, figures, or descriptions, tending to the corruption of the morals of youth, or any newspapers, pamphlets, or other printed paper or thing devoted to the publication of criminal news, police reports or criminal deeds, shall on conviction thereof be guilty of a misdemeanor (U.S. Supreme Court-Butler v. Michigan, http://caselaw.lp.findlaw.com/cgi-bin/getcase.plnavby=case&court=us&vol=352&invol=380). The Constitutional definition of speech is not limited to spoken or written word, it extends to symbolic speech. Under the tenets of symbolic speech, there are acts that are determined as repugnant. These acts, however are protected under the tenets of freedom of speech. The desecration of the flag proves to be one such act. In 1989 and 1990 two cases, Texas v. Johnson and United States v. Eichman were instrumental in reiterating the fact that as repulsive this act may be it is permissible under the Constitution as it stands. These decisions were effective in eliciting an immediate response to seek to alter the Constitution through another amendment as such an act holds the potential of inciting a riot (Corn-Revere, 2005). Finally, the notion of absolute freedom of speech is one that proves to be impractical at best. It is one that does not consider the fact that the same rights are afforded to each and every individual. In exercising one's right to free speech, the very same rights of others may be affected. The implications of this are such that there needs to be a delicate balance between an individual's freedom and the assertion of his/her individual rights and the rest of society. This balance has to be maintained in order to assure that each individual is afforded his/her rights. The limits placed involve one of public safety as well as individual rights. For example, in the course of exercising one's right to free speech, he/she may not yell "fire" in a public place when in fact there is on fire nor is he/she allowed to propagate falsehoods. These are crimes which are punishable under the legal statutes. As such, it is prudent for each individual to be cognizant of scope and ramifications of freedom of speech as it holds the potential to alter countless lives. Bibliography Bentham, Jeremy. "Anarchical Fallacies." Columbia University. 1824. March 5, 2007 . "Cornell School of Law-First Amendment" Cornell School of Law. March 5, 2007 . Corn-Revere, Robert. "Implementing a Flag-Desecration Amendment to the U.S. Constitution: An end to the controversy or a new beginning." March 5, 2007. FindLaw.com. "U.S. Supreme Court-Butler v. Michigan" March 5, 2007. . MacIntyre, Alasdair. After Virtue: A Study in Moral Theory. Oxford: Gerald Duckworth & Co., Ltd, 1981. Mill, John Stuart (1859). On Liberty (excerpts). March 5, 2007. . United Nations. "The Universal Declaration of Human Rights." March 5, 2007. . "United States Constitution" Cornell School of Law. March 5, 2007 . "U.S. Supreme Court Loving v. Virginia" U.S. Supreme Court. March 5, 2007 . "U.S. Supreme Court Media-- Schenck v. United States" U.S. Supreme Court. March 5, 2007 . Ward, Colin. Anarchy in Action. London: Freedom Press, 1982. Wolf, Clark "Property Rights, Economic Inequalities, and International Obligations" in Hugh LaFollette, ed. Ethics in Practice. Cambridge: Blackwell Publishers, 1997. pp. 559-570. Wolff, Jonathan. An Introduction to Political Philosophy (OPUS). Oxford: Oxford University Press, 1996. Read More