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The First Amendment and Free Speech

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The most cherished and recognized right, featured at the very top of the American Bill of Rights within the Constitution of the United States of America, is the freedom of speech; specifically, the rights to freedom of religion, freedom of speech, freedom to assemble peacefully, freedom of press, and the freedom to petition the government. These rights, ordained by the Framers of the Constitution as the most important, is also one of the most infringed upon. What changed? What is freedom of speech? Should the government be allowed to limit it? These questions are frequently debated upon by all branches and bureaus of the government to this day. With the invention of new technologies came a new era where information spreads faster than a disease. Stock markets, weather, politics, entertainment, and more are available in an instant at the touch of a button. The Founding Fathers never anticipated news delivery at the speed of sound or the breaking into government systems to steal electronically stored, confidential documents; the current technological state we are in is unpredictable, unreliable, and way too easily accessed. Is the freedom of speech outdated? Or are we acting in accordance to our rights?

Words have power. The uttering of a simple sentence can cause a world of destruction. “Alea iacta est” (the die is cast) marked the beginning of Julius Caesar’s conquest of the Italian Peninsula. The legendary Bob Marley urged earlier generations as well as current generations to find peace and “feel alright” through his bouncy, reggae compositions. A few words strung together can have a potent effect. Similarly, the simple philosophy of “Strength lies in not defense, but attack.” was coined by Adolf Hitler. That one little sentence inspired his offensive maneuvers in Europe causing the most brutal, horrific, and scarring events in history. Is this what the Framers meant when they thought of free speech? Absolutely not! The Framers were virtuous men with the intent of installing wisdom in the people. They believed in the expression of grievance and opinion rather than the unrestricted ability to say whatever, whenever. Having been suppressed by the British government with the Stamp Act, they first-hand experience the consequences of restricting speech. Ironically, in the early 1800’s, the federal government passed a law demanding that no war or military news be released without the demand of the government. So what really is free speech? According to the First Amendment, it is “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.” Breaking this down into four parts leaves a more manageable analysis. Seemingly straightforward and simple, the amendment has caused more issues than one would think. Breaking these down chunk by chunk will not establish finite definitions, but hopefully show the boundaries an American has regarding his or her First Amendment rights.

First addressed will be religion; “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” This is a very well respected part for Atheists, Christians, Muslims, and more. Ironically, the blatancy of the text is still quite debatable. All of the Founding Fathers were religious men with their beliefs based upon Judeo-Christian values. They consisted of Protestants, Deists, Catholics, Quakers, and more. Although similar, these religious groups were all at ends with each other at one time or another; but since they all were believers in God and freedom, they made that a priority in the Constitution. Straightforward as it sounds, the problem lies in defining a religion and how one may exercise their religion. What if some guy claimed to worship the lizard god “Zorp” and that his exercization of his beliefs involved sacrificing children in the public fountain? In a not so gruesome way, there was an attempt to justify the illegal practice of polygamy in Utah in the Reynolds v. United States. Polygamy had been made illegal federally but it still remained a Church of the Latter Day Saints (Mormon) practice, especially in Utah. Violators would be subject to a $500 fee and up to 5 years in prison. Chief Justice Waite delivered the court opinion and actually upheld the constitutionality of the law. It was deemed neither cruel nor unusual punishment and the justification regarding religious freedom was based upon the grounds that the first amendment protects the religious beliefs, not the religious practice. Waite makes the point that any man could do what he wants by claiming it is practice of religion. Without limitations on religious practices, every man writes his own law and thus takes away from the freedom of other citizens. Another legendary trial was the State of Tennessee v. John Thomas Scopes. Commonly referred to as simply “the Scopes Trial”, John Scopes was a teacher in a Tennessee high school where he openly taught the theory and science of biological evolution in his science class. Prior to this incident, William Jennings Bryan had been convincing state legislatures to pass anti-evolution teaching laws in over 15 states; but clearly is that not a violation of unimposed religion? The State of Tennessee did not seem to think so. While Scopes was put on trial, Bryan, defender of fundamentalism, took the offensive side. His plan horribly backfired and religious fundamentalism, although strong, took a very heavy blow by the wit and knowledge of John Neal. He did a magnificent job of defending Scopes. He essentially made fundamentalist law look foolish. Days into the case, however, they decided to settle on guilty because it was useless to try against a biased court. While Scopes lost and had to pay a fine, everyone knew who the real victor was. Even Bryan knew he lost. 6 days after the trial, he “died of a broken heart” in his sleep. Soon after, the ruling was actually declared unconstitutional, but never was reversed.

Second, the rights of free speech and press are listed together in the same sentence. This really does not make logical sense because saying something and publicizing something are two very different things. Spreading a rumour by word of mouth has a lot less effect than posting it on Instagram. One is very unreliable, questioned, and fizzles out; but by posting something in public for all to see, it automatically gains the trust of those who read it (ironically) and it will be there forever. Beginning with speech, all the major Supreme Court decisions are somewhat common sense. In all honesty, some of the things people have tried to defend themselves against have been quite idiotic. Rulings have contained the following statements on restriction of speech: to insight actions that could do harm to others (Schenck v. United States), to make or distribute obscene materials (Roth v. United States), burning draft cards (United States v. O’Brien), printing articles in a school newspaper over objections by the administration (Hazelwood School District v. Kuhlmeier), students making an obscene speech at a school sponsored event (Bethel School District #43 v. Fraser), and students advocating illegal drug use at a school sponsored event (Morse v. Frederick). In all of these cases, the courts have ruled against the persecuted; but quite obviously the “criminals” were harming not only society, but themselves. From Schenck v. United States, the example of shouting “fire” in a crowded room is given as a perfect example of “illegal” speech. Schenck and a friend of his had been printing leaflets and rising up the public against the draft claiming that it was against the 13th amendment regarding involuntary servitude. Their little campaign caused a public stirring big enough to inspire authorities to take action and convict them of violating the Espionage Act of 1917. They appealed saying that their first amendment rights were being restricted. Justice Wendell Holmes concluded that their first amendment rights were not being taken. He said that during a time of war, the courts are obliged to support the war effort and that by inhibiting the growth of the military by discouraging the draft, they are imposing imminent danger upon America. Along with the pending danger, it is pathetic that anyone would not feel obliged to fight a war for the greatest country on earth. Their actions were disgraceful. However, a critical way to determine whether or not something should be restricted or not. The “immediate danger” test basically stated that if someone’s speech or exercise thereof may be restricted if said speech was causing immediate danger to those surrounding or not. Shouting “Fire!” in a crowded room could cause injury, therefore, it is restricted. Roth v. United States is one of the listed cases that is actually debatable. Roth had been mailing obscene content to potential consumers as an advertising campaign; this content had been outlawed federally and in California by the Federal Obscenity Statute. Roth was proven guilty upon Justice William J. Brennan, jr. who claimed that the content was below the standards of speech protected by the first amendment based on contemporary views (of the time) on the content he was mailing. The obscene documents were declared non beneficial to society and therefore not protected by the constitution. The problem lies within what standards are. There a people who see bikinis as a one-way ticket to hell while others see nudity as beauty. Who is the Supreme Court to judge “contemporary standards?” Well, it wasn’t their call. Based on the majority of people who, seeing free erotica pamphlets in their mail and try to hold down their lunch decides that advertising with pornography is not a social norm. Handing out nudity is not an expression of free speech. It is a corruption of morality. Lastly, two of the cases regarded high school students receiving disciplinary action for their actions, but choosing to revolt instead. These two cases, in all honesty, shows the entitlement and naive of some of the teenagers in America. Both Frederick and Fraser explicitly broke their school codes that they signed to oblige to. One (Frederick) was advocating for the use of marijuana with a sign saying “Bong rips 4 Jesus”, which breaks school code as well as state and federal law. Clearly, his encouragement of criminal activity should be punished. Fraser had a similar case to that of Roth, although not as wide spread. He was giving an endorsement speech for his friend and made multiple crude, sexual remarks during his speech in front of the entire student body. Violating school policy, Fraser received disciplinary action.

The somewhat petty offenses are not just that; they are a reflection of the society of that time and the common political beliefs. Those court cases, while they may be old, will be used as a reference in the future to help guide jurisdiction. None of those offenses had very consequential effects. A few high schoolers making jokes about sex and drugs and some creepy guy sending out pornography are not anything new to us. No one was seriously affected by a “bong hits 4 Jesus” poster or a sex joke during a high school speech, and that is why the courts ruled against it. The thing that links all of these confirmed cases is that all the “speech” being used was inconsequential. The courts have repeatedly decided that inconsequential speech is not protected, especially if under another authority before the federal government. Primary school students (minors) are first under the jurisdiction of the school disciplinary code as well as the constitution. The school code takes over when the need arises in such cases when the learning environment is ruined. The federal government is leaving it up to the smaller groups to decide constitutionality of any rule impeding on free speech which is good and bad. Taking power from the Federal government is good. But what is to stop a smaller body-say a state-from creating their own little no free speech zone? This is where a problem begins. The federal courts have protected that from happening in many other court cases. This intellectual voyage through speech leads to Cohen v. California. A man (Cohen) was wearing around a jacket with “F*** THE DRAFT, STOP THE WAR” embroidered on the chest for all to see. Under California State law, Cohen was guilty of ‘maliciously and willfully disturbing the peace and quiet of any neighborhood or person by offensive conduct.’ and sentenced to 30 days in jail. Justice John Marshall Harlan reasoned that the jacket, while vulgar, was simply an expression of ideas and emotions which is fully constitutional. He said “One man’s vulgarity is another man’s lyric.” From this case the emotive (emotional) and cognitive (ideological) parts of speech were upheld and protected. Having speech defined in these two terms adds an immense amount of clarity. Now to the “dirty” free speech. Brandenburg v. Ohio showed just how far free speech can go. Brandenburg, a Ku Klux Klan leader, delivered a public speech involving the promotion of various nefarious activities that went against the morality of most people. Under Ohio law, he was fined $1000 and served 10 years in jail. However, the Supreme Court overturned the ruling upon a two-pronged way used to evaluate speech as prohibited. Is it directed to incite violence? Is it creating violence? If the answer is yes to either of these, it is prohibited. While Brandenburg’s ideas were offensive, it neither was asking for or creating violence and therefore, declared constitutional. Brandenburg and Cohen really show the tolerance for free speech that the government has. The government, in these cases, established the precedent that they don’t care what people say, as long as it is not violence provoking or provokes hatred for the government. All passive speech is permitted.

“And so it is to the printing press – to the recorder of man’s deeds, the keeper of his conscience, the courier of his news – that we look for strength and assistance, confident that with your help man will be what he was born to be: free and independent.”-John F. Kennedy

The press, whether digital, paper, or verbal, is a powerful tool. Press decides what the people will and will not know, the press influences elections, the press creates distention. Cheesy as it sounds, great power requires great responsibility. The amount of faith that the average person places in the press is unreal. Intended or not, people are affected by the news they see every day. Almost all Americans have a daily intake of some sort of news and it is the press’ responsibility to inform the people to the best of their ability. Sometimes, “to the best of their ability” is against what the government really wants. What if a reporter felt it was his or her duty to expose government secrets that may jeopardize security? Well that very scenario happened during the Vietnam War. Vietnam, the most controversial of American wars, was highly contested by pretty much everyone. The government had lost almost all support of the people, Nixon was just about universally hated, and anti-war efforts were beginning to become publicized and glorified. Daniel Ellsberg was a war strategist during the Vietnam War and worked in the pentagon. Having the elevated position he had, he was part of a 12 year, top secret research project called “The Pentagon Papers.” Upon his findings of the tragedies in Vietnam, he felt responsible and leaked the papers to the New York Times; naturally, they ate it up and printed it as fast as possible. A story like that would make millions and gain the support of the public. With the full knowing that he was already hated, Nixon did his best to go after the NYT. The case appeared in the Supreme Court in a matter of days. By declaring it a direct violation of the Espionage Act, Nixon was able to halt the publication of the documents. The Espionage Act in part a says “whoever, for the purpose of obtaining information respecting the national defence with intent or reason to believe that the information to be obtained is to be used to the injury of the United States.” Nixon saw the publication of the documents as intended injury to the national defense. However, the supreme court ruling said otherwise. The per curiam ruling declared the publication of the papers as constitutional due to the fact that it was aimed to inform, not to stir up issues. The New York Times really got lucky. Because of the disdain for Nixon and lack of support for the war, they were “let off the hook.” This case was not just a one-time deal. The freedom of press gained ground on that day. There really was no better time in history to test the bounds of free speech.

Probably the most infringed upon portion in the first amendment is the right to “peacefully assemble.” So many times throughout history have peaceful groups been done wrong to by the government. Labor Unions have definitely taken the heaviest blows. While labor unions may help workers’ conditions, wages, etc., they really are no longer needed. The government already has requirements for conditions, wages, benefits, and the like that no longer need to be fought for. The National Labor Union, Industrial Workers of the World (I Won’t Works), Knights of Labor, and more have been created to advance the desires of the common worker. While pure in original motive, these unions quickly turned sour and caused cultural, class, and occupational division. The National Labor Union fizzled out when the foreigners began to ask too much of the corporations and stir up issues involving inflation so that they could return to their homeland with a fatter paycheck. Corporations quickly shut them down. The IWW was an industrial group consisting primarily of steel workers, miners, and loggers. The I Won’t Works were notorious for doing just that. They went on strike so often and caused so many international issues, that legislation was passed directly to deal with them. The Knights of Labor were controversial as well. They were affiliated with terrorist attacks (Haymarket Square Bombing), anarchism, and accused of violence. The huge group began as a small and secret club, but soon expanded into a colossal group. Their strikes involved upwards of 800,000 workers and really pissed off the big businesses. Their strikes worked, but efficiency of the Union dissipated when the terror began. The reason anti-union legislation was passed was because they were causing horror, supporting socialism, and destroying the economy as well as the rich ran the government. However, there are other types of peaceful gatherings that are entirely permitted. The Boy Scouts, Elks, NRA, and many many more clubs are allowed to meet because they don’t cause any problems even though there may be some controversy regarding their beliefs.

Lastly, but equally as important is the right to peacefully petition the government. Who doesn’t love whining about elections? Where else can people insult their leaders’ actions and get away with it? Only in America. Petitioning the government can entail stakeouts, walkouts, and gatherings at a governmental building in hopes of making a point. This right, however, is deeply misunderstood by so many clueless and uneducated morons. For instance, Samantha Bee thought petitioning President Trump by posing with a replica decapitated head was alright, people walked around wearing vagina hats to support pro-choice agendas, and people walk the streets lacking their much needed attire to promote equality and love. People are stupid, and thankfully the founding fathers knew that too, otherwise we would be in deep. The founding father/framers of the Constitution were virtuous men. They knew their classics, their philosophy, and their reasons for doing what they did. These rights were not intended to allow the people to splurge on something just because they can. They were intended to be used in moderation and in wisdom.

The freedom of speech is not just to say whatever the individual desires, but it is the protection of potentially potent, educated, and meaningful text. Without the freedom of speech, the government could get away with anything it pleased and the citizens would be helpless. In fact, attempts have been made to do just that. Early in American history, as said before, military news was suppressed. From pulling press passes, to even killing journalists, governments here and afar try to limit the bad news they are the focus of. The press is a tyrannical governments worst enemy. Countless dictatorships, Communist governments, and other abusive ruler have begun by regulating press to alleviate the nation of facts. Allowing free speech (and all other freedoms accompanied) grants the people the ability to spread new ideas, learn new ideas, and create a network within the country of ideology; thus, creating a whole population of free thinkers and educated persons.

As a very libertarian thinker, I believe that our First Amendment rights should not even be touched for the most part. While the courts have struggled over the issue of defining these rights, I do have a fairly blatant perspective on the issues; but that mostly lies in the fact that I am politically biased. Nonetheless, I stand firmly by them and actually, I have found that quite a few justices have similar conclusions to me. I know it, when I see it. As unintellectual that sounds, Justice Potter Stewart said it himself when asked to describe obscene material. But in reality, defining these rights is supposed to be tricky. If the Framers had laid everything out step by step, law by law, rights would be restricted; by leaving them vague creates room for advancing them and making sure that they are guaranteed. However, to establish my own opinion, I must actually put it on the table. For religion, I personally believe that it should be kept absolutely away from government because nothing as toxic as politicians should come anywhere near a religious institution. Ancient traditions should be allowed to be practiced by those few members of original heritage. That is to the extent that they are not actually harming others and only continuing heritage. Department of Human Resources, Oregon v. Smith concluded with Scalia’s opinion that religious groups may be exempt from some things, but cannot violate law simply because of religion. Here, I strongly disagree. Peyote, the hallucinogenic drug, has been used for thousands of years by natives. We have already stripped them of everything they have, does their tradition have to go too?

Similarly, the rights that are grouped into the vague language of the first amendment describing speech, press, and petitioning are vague for a reason. The rights of businesses to discriminate, the rights to publish “fake news”, the right to hold a Satanic Ceremony, and more are granted by these rights and it is our job to keep them protected. The ultimate byproduct of the slow but surely progression towards suppression results in government control of all media. Say, for instance, that the government mandated all truth be told on news stations. No exaggerations, lies, gossip, and the like. With the government in charge of that, it decides what is truth. When this happens, there is tyranny. The Framers of the Constitution feared this and that is why these rights are to go unabridged.

In conclusion, I stand by my firm opinion that the government should have nothing to do with our First Amendment rights. As long as my speech does not harm another, my assembly remains peaceful, my religion is free, and my press is reasonable, the government should have no say whatsoever in deciding what is right. Leaving it up to private institutions to decide what you should and should not say creates an environment where like-minded people can cooperate and enjoy liberty together while expressing their own unique ideas and follow their own religion. The best part about free speech is that you do not have to listen! You can go to any news outlet, website, or blog and listen to whatever you want to. If you don’t like it, don’t listen. It is that simple.

To sum everything up, all this court cases can be compressed into a smaller and more manageable chunk of text. As long as your words, symbols, religion, documents, images, or any other form of expressing the First Amendment rights do not directly interfere with the lives of other, cause physical harm, or promote treason, speech has no limits. A lot of justices would be in concurrence with me because of the lack of prior restraint already in practice, and that the only times speech can be ruled against have been because someone’s words caused immediate harm. Although these cases become confusing and elaborate and seem to melt into one, that is essentially what they are, one overall ruling. It really just depends on the standards of the day which cannot be defined by anything except 20/20 hindsight vision, or the opinion of the ancient Supreme Court Justices of The United States of America. May freedom reign forever, and let not your speech be limited by anyone but the person you see in the mirror.

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