The First Amendment of the US Constitution & Free Speech

[jks9199]

The First Amendment has been a hot topic of late... I'd like to offer my opinion and understanding of it for consideration. For the moment, I'm going to limit myself mostly to Free Speech. I'm also going to avoid pulling case cites out; bluntly, they make for slow reading, and I don't have a list handy!

The First Amendment reads:
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.

What's that mean? The First Amendment prohibits the Government from creating a state religion or, with some exceptions (no human sacrifices...) interfering in the People's right to practice their own religion. It says that the Government can't control the People's speech, or control the press, and that, so long as they are peaceable and accept reasonable controls such as parade routes and respect private property, the People may freely gather with whomever they wish, for almost any reason. And, the People have the right to confront the Government, and demand an accounting if they feel they've been wronged. As I said, I'm not even going to touch the separation of church and state. Or issues like sovereign immunity. What I want to discuss is freedom of speech.

Multiple court rulings have recognized that there are some sensible limits on the right of the People to say whatever they want. The First Amendment won't save you if you decide to blab military secrets. You can't say anything you want, anywhere you want, anytime you want. Your neighbor has the right to a good night's sleep; he can have the cops tell you to shut up if you're shouting in the streets in the middle of the night. Nor can you use words to incite a riot, or cause other forms of significant public disruption. That's not to say that everyone has to like what you have to say; as much as I abhor their view, if the KKK wants to march, and follows the rules to get a parade permit, they can basically say what they want, and I'll defend their right to do so! But they can't walk into the NAACP's meeting, and spout off, either. Even more significantly -- the First Amendment addresses GOVERNMENTAL interference with free speech, not private. As a private individual, I can punch you in the mouth for saying something I don't like. I may get arrested for assault, you may sue me -- but I haven't violated your First Amendment rights. And, if you're on private property, the property owner (or their agent or someone who is exercising lawful control over the property), can tell you that you have to leave because they disagree with what you say. This generally includes so-called public property, like a university campus or town green. Just because they belong to the government doesn't mean that you can't be prohibited from being there, or that the government can't control what's done there.

And that's a major thing to understand; the First Amendment isn't about protecting people from each other. It's all about protecting people from the government. Bob can make all the rules he wants about what can and can't be said on Martial Talk. But, unless there is a strong argument for the public good like prohibiting child porn), the Government cannot.

Now, let me add the usual caveats. I'm not a lawyer; I don't speak for anyone but myself. This is all based on my own education, and you're perfectly free to disagree. You can even call me names if you want... unless the mods have a problem with that!

 

[michaeledward]

if the KKK wants to march, and follows the rules to get a parade permit,

If there is a governing authority that issues "permits" that dictate the terms of participation ... is it "free speech"?

 

[docmartin252]

I agree that there should be certain sanctions on free speech to protect the rights of others, however it still feels like the government still controls the effects of the laws rather than the people having "free speech"

 

[Kacey]

At some point, the right to free speech must be balanced with the safety of the populace; laws such as those mentioned above which limit where and how free speech may occur (e.g. parade routes, noise laws, minimum distances for protesters, etc.) are attempts to create that balance.

Where there come the greatest problem is when people attempt to tip that balance one way or another because of what they believe is right - best expressed, IMHO, by this quote from the movie "An American President":

"You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.

Too many people believe that speech should only be free if what they are hearing is not objectionable to them, or if the person who is speaking to them can be convinced to come to their own point of view... but if someone dares to disagree with them - no matter how politely, no matter how logically, with no matter how reasoned an argument - then they claim violations that don't really exist.

There are quite a few problems that arise in discussion of free speech - but the most significant problem I see, especially in issues based on morality is how to differentiate strong opinions from prejudice from hate speech, because too many people cry prejudice and/or hate speech because someone disagrees strongly with their opinion... and the line can be very thin and blurred.

 

[exile]

...the most significant problem I see, especially in issues based on morality is how to differentiate strong opinions from prejudice from hate speech, because too many people cry prejudice and/or hate speech because someone disagrees strongly with their opinion... and the line can be very thin and blurred.

I think this is the nub of the issue.

Voltaire is famous for saying something which is usually translated as `I may disagree with what you say, but I shall defend to the death your right to say it.' It's vintage Voltaire, very principled-sounding and bravely progressive. But of course it doesn't address at all the really hard part, which is that language doesn't necessarily just express abstract ideas; it is capable of encoding actual actions—for example: expressing a promise; taking an oath; rendering a verdict; conveying a threat—these are all instances of actual actions which are carried out verbally. There's a whole branch of linguistic philosophy made famous mostly by the work of John Searle which is referred to as the theory of speech acts, recognizing that these are verbal events which nonetheless have the effect of actions. Now if language is capable of carrying out actions, as is widely acknowledged across the political spectrum, then any assessment of the result of uttering some sequence of sentences has to take into account the possibility that they did not merely express a point of view, but actually implemented some objective simply by being spoken. This was the burden of Justice Holmes' famous observation that `The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.' The head of a inflamed crowd who, at a critical moment, shouts, `I think we oughta hang 'em' and thereby materially aids in converting the crowd into a lynch mob would not be allowed to get away with pleading that all he was doing was expressing his personal opinion.

This is where things get dicey, because it's not always clear when an utterance expresses an opinion, a personal viewpoint or idea, or when it actually constitutes an action. A remark about the likelihood of the immortality of the soul over a few beers with friends, on the one hand, and an oath taken in a court of law, are clear cases on opposite ends of the spectrum; but the fact is, things are rarely so clearcut. And unfortunately, there's no book in the back of which you can look up the answer in any give case....

 

[thardey]

Very good points, above, and they collectively got me thinking as well.

"the freedom of speech" is that the same as "free speech?" (That's not a rhetorical question, BTW, but I'd like to answer it for myself).

The freedom of speech is the "right to speak" in my opinion. That is, you have a right to defend yourself, to speak your views, to make your complete argument. This is in opposition to not being able to speak. That is, you have the freedom to speak.

"Free Speech", implies (to me), the freedom to speak how you want. That is, your speech is free, and unfettered. You can use whatever language you want, in whatever time and place you want, without being censored.

We are guarantees the freedom to speak, not the freedom to speak how we like. Even so, there are very few rules about expressing ideas, but there are rules about what happens when those ideas become actions, like Exile said.

For instance, as I understand the use of force rules for a private citizen, if a person is verbally threatening you, it can be used to fulfill the "imminent jeopardy" phase of the AOJP defense for use of force. That's not free speech, the act of speaking has become an aggressive act.

As to the comments about the KKK protesting at a parade. If they protest on the streets without a permit, or if they violate the terms of their permit, it's not likely the speech that they will get in trouble for, it's for violating other laws pertaining to traffic disruption and violations. (That's not to say that personal biases won't come into play during the enforcement of these disruptions). You can stand on a soapbox and preach your religion in a public place, as long as you don't violate other rules related to blocking the sidewalks, and forcing people onto the street to get past. Now you're forcing people to violate traffic/pedestrian laws.

That's why it's so hard to police the internet: Most of it is simply a collection of people sharing their ideas - very little of it can be considered action. But like on this forum, sharing my opinions is fine, insulting and threatening others is an aggressive act.

Perjury is not only expressing an idea, but it is an action to deceive. People forget that speaking is an action, which impacts others.

One other thought: When people say "you can't say that!" what do they really mean? People say that churches (hopefully this doesn't violate the separation of church/state disclaimer above) "can't" influence people directly about politics. Well, they can, they just risk losing their government perks of being recognized as a not-for-profit organization. It's not illegal, but they can lose a bonus. And that's true for any non-profit, not just churches. (I'm simplifying here, of course, there's a ton of legal details about that, that aren't relevant to this discussion.)

There's a lot of things you "can't" say on TV, not because it's not law, but because the individual stations themselves won't allow it on "their" station. The government can't control the media, but CBS sure can control what's on their news program.

There are a lot of things I can say, which people will try to convince me that I "can't", but I don't want to deal with the consequences, so I "won't".

 

[CoryKS]

I think the term "Freedom of Speech" is a poor one, because it is imprecise and leads to confusion. The Constitution does not grant freedoms, because the framers believed the government was not in the position to grant rights. The Amendments defines restrictions on the power of the government, which is not the same thing as granting freedoms. A more correct term would be "Freedom from Censorship". Or even more specifically, "Freedom from Censorship by the Federal Government".

The confusion that I see with "Freedom of Speech" is that people tend to understand that term to mean that they can expect to say anything they want to anyone, wherever they want, in whatever format they choose, without any consequences. This is obviously incorrect.

"Freedom of Speech" also does not promise a venue for your speech. Anybody can make a web site or issue pamphlets stating their beliefs. Your "Freedom of Speech" has not been taken from you, however, if ABC declines to give you a half hour during primetime to present your views to a national audience. If only two people read your website, and one of them is your mother, that's your own problem. And if you go into a debate organized by someone else, start an extended rant until they pull the plug on the mic and send security to escort you out, and THEN shout "Freedom of Speech" and expect them to recoil, hissing, like vampires before garlic - well, that's a tazing.

 

[Bigshadow]

I always personally thought that free speech was more so about being able to freely speak out against the government and openly discuss grievances with the government. Prior to that time, they could not openly speak out against the king or his actions lest they be prosecuted and/or slaughtered. I personally don't think it is a right to just go about saying anything you wish. Not that I think saying certain things should be a crime, but I just wanted to give my opinion on what I feel the intent was with the 1st amendment with regards to free speech.

I think the intent of the 1st and 2nd amendment was all about empowering the people to balance the government.

 

[Blotan Hunka]

You have the right to say what you want.

You dont have a right to an audience. (in other words, the KKK cant walk into an NAACP meeting)

 

[Phoenix44]

I would tend to err on the side of free speech, the right to say what you want without fear of persecution. Especially when our Constitutional rights are being encroached increasingly every day.

 

[Big Don]

I have thought, and said, for the last few years that a better choice for the US Supreme court, than the usual lawyers and judges that get appointed would be an 18th century literature scholar. If the purpose of the Supreme Court is to interpret the constitution, and tell us what it means, who would be better?

 

[jks9199]

I have thought, and said, for the last few years that a better choice for the US Supreme court, than the usual lawyers and judges that get appointed would be an 18th century literature scholar. If the purpose of the Supreme Court is to interpret the constitution, and tell us what it means, who would be better?

This is really meat for a whole different thread... but there are several main schools of interpreting the Constitution. First -- remember that the US legal system is generally (there are a few exceptions, like Louisiana) built on the basis of English Common Law. In fact, in Virginia, some offenses are still Common Law offenses, punished but not specifically defined in the code. The underlying principle of English Common Law is stare decisis, o the idea of precedent. Decisions are based on prior decisions, unless there is a very good reason to decide differently. Because of this, the US Constitution is really a living document; what it means changes and evolves over time.

Some interpret the Constitution literally, using what the words mean to them today. Another school looks back to see what the words meant then, and applies those ideas to today's questions of law. A third school looks at it as a kind of guide, and finds all sorts of things there that weren't specifically spelled out. There are a couple of other, less prevalent approaches that aren't springing to mind immediately, and I don't feel like digging up notes from my constitutional law classes.

 

[michaeledward]

I have thought, and said, for the last few years that a better choice for the US Supreme court, than the usual lawyers and judges that get appointed would be an 18th century literature scholar. If the purpose of the Supreme Court is to interpret the constitution, and tell us what it means, who would be better?

I think the purpose of the Supreme Court is to interpret the bills passed by the United States Congress, that are signed into law by the President. I think far more of those laws are written and intended with late 20th and early 21st century sensabilities. An 18th century literature scholar may be very much out of place in that world.

 

[Big Don]

I think the purpose of the Supreme Court is to interpret the bills passed by the United States Congress, that are signed into law by the President. I think far more of those laws are written and intended with late 20th and early 21st century sensabilities. An 18th century literature scholar may be very much out of place in that world.

While the laws are not written the same, knowing where they fit or don't with the founding father's ideals, which IS what the constitution really is..., should be of a pretty high importance.

 

[Big Don]

The underlying principle of English Common Law is stare decisis, o the idea of precedent. Decisions are based on prior decisions, unless there is a very good reason to decide differently. Because of this, the US Constitution is really a living document; what it means changes and evolves over time.

Some interpret the Constitution literally, using what the words mean to them today. Another school looks back to see what the words meant then, and applies those ideas to today's questions of law. A third school looks at it as a kind of guide, and finds all sorts of things there that weren't specifically spelled out. There are a couple of other, less prevalent approaches that aren't springing to mind immediately, and I don't feel like digging up notes from my constitutional law classes.

Dredd Scot set a precedent, as did Brown v Board of Education, as did Justice Black in Everson v Board of Education, by quoting a private letter, and getting it out of context and wrong. Relying on precedent is an easy way to avoid making an unpopular decision. Relying on precedent saves people the work of thinking and reasoning out what is right and just.
Interpreting what they meant then by what the words mean now seems to be a really good way to get a completely wrong idea...

 

[Mr. E]

If there is a governing authority that issues "permits" that dictate the terms of participation ... is it "free speech"?

I think that in this case, it is more about who will get to use the public's roads. If the KKK or anyone else wants to publish a newsletter, then they need no permision. If they want to use a road to march on, other people are impacted by their use of it.

The constitution of the United States at no point says that anyone else has to do anything else to make sure that someone's message has to get out. Congress can't act to stop it, but no one else is required to pay for it, or give up their use of a road, so that a message can get out.

In the days that the constitution was written, billboards and the printed word was the main means of distributing information and ideas. There is no mention of anyone having to buy, or provide funds for, a particular newsletter or billboard getting out.

In fact, the whole idea behind the first ten ammendments seem to be less, 'you will do this' than 'congress is forbidden to do this.' It all seems to be about keeping the government from doing as little as possible.

Letting the rascals determine what is valid speech and what is not valid speech runs counter to that idea IMO. So local governments have the responsibility to keep traffic running, but not to determine if one side is worthy of a march or not.

 

[michaeledward]

While the laws are not written the same, knowing where they fit or don't with the founding father's ideals, which IS what the constitution really is..., should be of a pretty high importance.

I don't vote for a candidate because I believe their guiding principle is 'What would Jefferson do?".

Although, I think it would be helpful if we could find a few more people with the wisdom and stature of a Jefferson, or Madison, or even Adams, I don't want to live in an 18th century world. And I don't want the leaders of the country stuck in an 18th century world, either.

 

[redfang]

Free speech is never free.

And remember TANSTAAFL.

 

[Big Don]

I don't vote for a candidate because I believe their guiding principle is 'What would Jefferson do?".

Although, I think it would be helpful if we could find a few more people with the wisdom and stature of a Jefferson, or Madison, or even Adams, I don't want to live in an 18th century world. And I don't want the leaders of the country stuck in an 18th century world, either.

That isn't what I suggest. However, applying the linguistics of modern English to Eighteenth century English will not get a correct result.

 

[Touch Of Death]

I agree that there should be certain sanctions on free speech to protect the rights of others, however it still feels like the government still controls the effects of the laws rather than the people having "free speech"

The government does control speech. Freedom refers to your personal freedom to not be sitting in prison for it. And, you still go to prison if the Jury finds you guilty of some crime within your writting or speech.
Sean