The Analysis of the Bill of Rights - Essay Example

THE 1st AMENDMENT Thomas Jefferson once claimed, "A democracy cannot be both ignorant and free." This was the commonly held attitude of the "enlightened" men who settled the United States. The framers of the Constitution believed that if the new U.S. citizens failed to take care to share information completely among themselves, they would be worse off than they had been as subjects of the British monarchy they fled. The new American settlers brought with them a desire for democracy and openness. They left behind a history of tyranny and official control of information. Using this experience as their guide, the constitutional fathers wrote into their new Constitution a Bill of Rights, which contained the First Amendment. The Bill of Rights consists of the first ten amendments, which contain procedural and substantive guarantees of individual liberties and limits upon government control and intervention. The First Amendment, perhaps the best known of these freedoms and protections, prohibits the establishment of a state-supported church, requires the separation of church and state, and guarantees freedom of worship, of speech and the press, the rights of peaceable assembly, association and petition. While some Supreme Court justices have declared that First Amendment freedoms are absolute or occupy a preferred position, the Court has routinely held they may be limited so as to protect the rights of others (e.g. libel, privacy), or to guard against subversion of the government and the spreading of dissension in wartime. Thus, the Court's majority has remained firm - the First Amendment rights are not absolute. Only two Supreme Court justices, Justice Hugo Black and Justice William O. Douglas, insisted the First Amendment rights are absolute and their dissenting opinions fell to the wayside. Most court cases involving the First Amendment involve weighing two concerns: public vs. private. Also, the Supreme Court has often defined certain speech, also known as "at risk speech," as being unprotected by the First Amendment (Corwin 56). Freedom of speech and expression is not a luxury of democracy, but it should be recognized as a necessity. In order for a democratic form of government to function and continue to exist, it must have free expression and educated criticism. Most of the development of the United States' free society has come about because of public debate and disclosure, in both oratory and written form. The First Amendment was written because at America's inception, citizens demanded a guarantee of their basic freedoms. Without the First Amendment, religious minorities could be persecuted, the government might well establish a national religion, protesters could be silenced, the press could not criticize government, and citizens could not mobilize for social change. When the U.S. Constitution was signed on Sept. 17, 1787, it did not contain the essential freedoms now outlined in the Bill of Rights, because many of the Framers viewed their inclusion as unnecessary. However, after vigorous debate, the Bill of Rights was adopted. The first freedoms guaranteed in this historic document were articulated in the 45 words written by James Madison that we have come to know as the First Amendment. The Bill of Rights - the first 10 amendments to the Constitution - went into effect on Dec. 15, 1791, when the state of Virginia ratified it, giving the bill the majority of ratifying states required to protect citizens from the power of the federal government. First Amendment Speech and Provision was absolutely rigid by original intent, higher than modern standards (indeed unreasonable by modern standards) and not coincident with eighteenth century perceptions of the proper extent of the right to publish or speak freely. The strongest piece of new evidence involves the unofficial reporter who sat close to the Speaker of the House of Representatives. Near the end of the first session of the First Congress, after the drafting of the First Amendment (then third) but before submission of the amendment to the states, a representative accused the reporter of misreporting debates and thus bringing representatives into disrepute. Under the original Constitution without the First Amendment, of course, the reporter could have been punished. But the representative did not request punishment or censorship; he suggested that the reporter's physical position be in accord with his status: since he was unofficial, he should sit in the gallery with the rest of the public so that his reports would not receive unwarranted prestige by the gratuitous physical placement. Two representatives immediately criticized this suggestion as against the freedom of the press. The motion was withdrawn, and a sequel in the second session of the First Congress verifies the impression (the reporter went into the gallery of his own accord and was made to resume his position lest it be thought that the House was infringing the liberty of the press) (Corwin 23). On its face, given the text of the First Amendment, it would appear that any law passed by Congress that would abridge the freedom of the speech or press would be unconstitutional. However, this does not consider the role of the doctrine of stare decisis, in which judges consider previous decisions they (and other courts) have rendered to be binding precedent, decisions to be followed as if they were themselves laws. In the late 1700s, it wasn't even clear whether the First Amendment covered criminal punishment for politically incorrect speech. Many people argued that it applied only to "prior restraints," such as injunctions or prepublication censorship rule. Laws criminalizing speech after it's published, the argument went, were perfectly constitutional - even if, for instance, the laws banned criticism of the government. Only in the 1930s was it firmly settled that the First Amendment protects speech against criminal punishment (Berns 110). In the late 1700s and early 1800s, courts routinely held that some antigovernment speech - even speech that wasn't directly inciting crime - was constitutionally unprotected. In many states, until the 1810s and 1820s truth wasn't a defense to criminal libel prosecutions. Even when it became a defense, it generally applied only when the statement was made with "good motives" and for "justifiable ends," however a judge or jury chose to interpret these vague phrases. Those limitations weren't eliminated until the 1960s. In the first half of the 1800s, courts held that blasphemy could be outlawed, and blasphemy covered not just swearing but the offensive public denial of the truth of Christianity. Until the mid-1900s, judges routinely sent people to jail for publishing newspaper articles that criticized the judge's decisions. Until the mid-1900s, obscenity laws punished not just hard-core pornography, but serious literature as well as discussion of contraceptives. Moreover, until the mid-1900s, the dominant view was that the government had virtually unlimited power over its own property and its own employees. Until recently, courts would probably have upheld campus speech codes simply on the grounds that public universities were completely free to sanction and expel students for any reason at all. And modern free-speech protections were largely the work of Justices Oliver Wendell Holmes and Louis D. Brandeis, who were generally associated with the liberal wing of the Court on most issues; of FDR's liberal appointees to the Court; and of the notoriously liberal Warren Court. On today's Supreme Court, conservative Justices Anthony Kennedy and Clarence Thomas take a broad view of free speech, often broader than many of their liberal colleagues. But until the late 1980s, conservatives generally took the narrower view, not just on matters such a sex and flag desecration, but even on political and social advocacy (Mitchell 141). The First Amendment has endured more than 200 years, without substantial alterations and negation. This limited history of change should stand as a testament of the First Amendment's importance and role in America, presently and throughout our history. There are rare instances in American history when the First Amendment has been set aside. The most notable periods of government censorship, which are few, involve sedition acts and wartime censorship. The Sedition Act of 1798, signed by President John Adams, gave federal authorities the right to prosecute any individual suspected of plotting against the federal government. This Act also allowed a provision that made it a criminal act to speak or write maliciously of the president or of Congress, which was defined as "with the intent to defame" or to bring either "into contempt or disrepute." (Illinois Press Association Guide 77) The Sedition Act of 1798 effectively stifled legitimate political discussion, and was held in criticism for this reason. Critics of the government either bowed to the pressure of this act or were punished. The act expired in 1800 and was not renewed. Congress had voted that reparations to its victims be instituted, based on the opinion that if they were adhering to the beliefs of the Founding Fathers such an act was inconsistent with the First Amendment. During the period of slavery, 1600-1800s, many slave states defied the First Amendment and censored abolitionists' pamphlets, writings and speeches. The states' defense of ignoring the protections of the First Amendment settled on the vague wording of this amendment compared to that in the other Bill of Rights Amendments. The First Amendment states "Congress shall make no law" which meant the federal government according to this interpretation. To clear up this disagreement, Congress ratified in 1865 the Fourteenth Amendment, which made the First Amendment binding upon government below the federal level. The Fourteenth Amendment defined citizenship and made constitutional adjustments to post-Civil War conditions. Most significantly, the Fourteenth Amendment guaranteed due process of law and equal protection of the laws against infringement by the states. Therefore, the states could no longer impose their own censorship and hindrance of speech standards on the protections guaranteed by the First Amendment. Wartime censorship has been used to protect national security interests. The words "clear and present danger" are the "yardstick" by which censorship rights of government as opposed to the free-speech rights of individuals are measured in such times of crisis. President Abraham Lincoln first used this type of censorship during the Civil War (Berns 158-159). First Amendment freedoms and protections were secondary, according to President Lincoln, to the preservation of the nation. Lincoln believed in "the ends justified the means" argument in preserving all the laws. The Civil War alterations to the protections guaranteed under the First Amendment consisted of opening mail and censoring anti-Union newspapers. Wartime censorship was also employed during World War I. Another Sedition Act, passed in 1918, considered speaking "disloyal or abusive language" about the flag, Constitution and government a criminal act. Passage of the Espionage Act of 1917, which made it a crime to write or say anything that might encourage disloyalty or interfere with drafting of servicemen, also hindered First Amendment protections. "Subversive" books were taken off the shelves in stores and libraries. Under the Act, over two thousand prosecutions were commenced. For instance, one filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie about the American Revolution impugned the good faith of an American ally, the United Kingdom. The Sedition Act of 1918 went even farther, criminalizing "disloyal," "scurrilous" or "abusive" language against the government (Levy 90). Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Further restrictions on speech were accepted by the Supreme Court when it decided Gitlow v. New York in 1925. Writing for the majority, Justice Edward Sanford suggested that states could punish words that "by their very nature, involve danger to the public peace and to the security of the state." (Irons 56) Lawmakers were given the freedom to decide which speech would constitute a danger. During the 1930s, the Federal Communications Commission began its policy of requiring broadcast station owners who engage in airing editorial opinions on a controversial issue to offer time on the air to any opposing opinion. The FCC argued that it was not violating First Amendment rights of broadcasters because the airwaves are a limited resource and belong to the public. Thus the right of public access to the airwaves must be protected. This practice, known as the "Fairness Doctrine," was scrapped in 1987. Similar activities took place during World War II. It was considered an illegal activity to advocate violent overthrow of the government at any level, or to say, do or write anything that might encourage insubordination among the military or to encourage disloyalty. After World War II, censorship became a hotbed during what is commonly referred to as the "McCarthy Era" and "The Red Scare." The target was Communism. Writings, speeches and activities were scrutinized for communist propaganda and leftist advocacy. In 1940, Congress replaced the Sedition Act of 1918, which had expired in 1921. The Smith Act passed in that year made punishable the advocacy of "the propriety of overthrowing or destroying any government in the United States by force and violence." The law was mainly used as a weapon against Communist leaders. Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law. Restrictions, however, have been struck down if they are aimed at the political message or content of newspapers. Content-based regulation of television and radio have been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. The Supreme Court, however, has ruled that the problem of scarcity does not permit the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis. The Free Exercise Clause of the First Amendment has often been interpreted to include two freedoms: the freedom to believe, and the freedom to act. The former liberty is absolute, while the latter often faces state restriction. Jehovah's Witnesses, a religious group, was often the target of such restriction. During the twentieth century, many major cases involving the free exercise clause were related to this organization. Many communities directed laws against the Witnesses and their attempts to convert individuals to their religion. From 1938 to 1955, the group was involved in over forty cases before the Supreme Court, winning a majority of them. Conclusion Today, the First Amendment freedoms include various areas: freedom of information, government access and citizens' right to know and right to privacy. Furthermore, according to James Russell Wiggins (former editor of the Washington Post), the "right to know" consists of five separate parts: Freedom from prior restraint. Freedom from punitive censorship. Right to collect information. Right to have access to the media and materials necessary for collecting that information. Right to distribute information and to make it directly available to all members of the public without interference from the government under law or from private groups acting outside the law. The only area that is not recognized by the Court as falling under First Amendment protection is obscenity. It is the common opinion that obscenity can be used as a litmus test for deciding what is and what is not protected under the First Amendment. Obscene material presents a "clear and present danger" to society and that is why it has not been deemed as protected speech. The key in this issue is to decide what is obscene and pornographic material. The difficulty lies in defining this, but not abridging any freedoms and protections of the First Amendment. The Court has been faced with several obscenity cases. It has ruled in many of them that prior restraint was unacceptably used and that censorship is not to be given free reign. The censoring of obscene materials allows one individual to decide for a nation what is morally acceptable and what is not. This is the major reason why the Courts have taken a strict role in assuming this responsibility. They do not want to take on the role as the "morality police" or "Big Brother" in regard to different forms of literature, movies, books, tapes, etc. Thus, for material to be deemed truly "obscene" it must present a danger to the nation or to a class of citizens, such as children (e.g. child pornography) before the Court will take a strong stand against its dissemination. The text of the First Amendment sounds categorical - "Congress shall make no law...abridging the freedom of speech, or of the press" - but it can't be taken as a literal protection of all speech, all the time. What about copyright laws, which restrict the right of the press to publish the words that it wants to publish The First Amendment has been applied to the states, via the Fourteenth Amendment. Are states barred from enacting laws punishing libel, or false advertising Now there are ways to explain why these restrictions are constitutional. For instance, restricting the use of loudspeakers regulates the noise that speech causes, and not its content. Death threats, even if they aren't accompanied by any actual violence, aren't a valuable contribution to public debate, and are potentially very harmful. But while these are sensible distinctions, it's hardly mandated by the text. We can't just say "no law means no law" and resolve the problems that way. Likewise, restricting campaign contributions is not literally "abridging the freedom of speech." People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them - just as federal rules have long limited people's ability to give gifts to officeholders, for fear that such gifts might be implicit bribes. Naturally, such restrictions can still be assailed. I do think, for instance, that campus-speech codes are unconstitutional; and while I think limits on campaign contributions are constitutional, I think that limits on expenditures by corporations and unions should have been struck down. My point is simply that the argument against these restrictions must rely on more than the constitutional text. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can't just rely on the text. They can't just rely on the original meaning, which is highly ambiguous. One can criticize judges for just making up constitutional guarantees that aren't mentioned in the Constitution at all. But here the Constitution does say something - but something very general. If it's to be enforced at all, judges have to give it specific meaning. And that's been part of our constitutional tradition since shortly after the Framing. Conservative and liberal judges alike have done this, as to various constitutional provisions, because they have to do it. I'm delighted that many modern conservatives take a broad view of the First Amendment. But such a view shouldn't rest on myths about American history, about the supposed clarity of the constitutional text, or about the possibility of judges simply following the law, without making law in the process. Bibliography: 1. Berns, W. Taking the Constitution Seriously. Madison Books, Lanham, 1987. 2. Corwin, J. The Constitution And What It Means Today. Boston: Rutledge. 1995. 3. Irons, P.. A People's History of the Supreme Court. New York: Penguin. 1999 4. Levy, L.W. The Establishment Clause. MacMillan Publishing Co., New York, 1986. 5. Mitchell, R. CQ's Guide to the U.S. Constitution. Congressional Quarterly, Washington, 1986. 6. Schwartz, B. Bill of Rights: A Documentary History. Chelsea House Publishers, New York, 1975. 7. Illinois Press Association Guide to First Amendment & Access Laws, 1995. Read More