Thursday, September 30, 2004

The Strawman of Political Dissent and First Amendment Rights (Part I)

Let's talk about this again. I keep wanting to post something really interesting about Middle Eastern Universities and their programs of indoctrination, but some really interesting comments have been made in this blog and I like to refer to them. Put them up front.

First, I want to express a thought here that is not a political statment, but more a statement of how exciting it is to actually be discussing these issues, however we feel about them. Seriously, in your day to day life, getting up, going to work, getting the kids off to school, going to your church, mosque or synagogue, how often have you actually considered what laws gave us protections to do these things? That ordinary people, now more than ever, actually have access to this information and look at it and think about it, is very exciting to me. I can think back to my American history and politics classes and thinking about how boring some of the topics were (and I loved history) or how often I thought that these laws were great, but, in my youth, did not understand their importance as much as I have learned or understand today.

So, for those that come to discuss it here, whatever our differing views, I thank you for allowing this opportunity for this kind of debate. Through these discussions, we actually can LEARN what those laws and amendments mean. What the constitution meant in 1787 or the First ammendment when it was ratified in 1789 and how they apply to us today.

I want to put here the first amendment as it is written:

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.


From this site Findlaw: US Constitution: First Amendment

Some folks like to interpret this to mean they can say anything and the government cannot stop them. They can say anything about the government, the President, war, conditions, etc.

Other folks like me think that you can say whatever you want as long as it is not a lie, insights violence, undermines a war effort, damages the United States, etc.

Who is right or wrong? Is it both? Go to the inner sanctum for further discussion.

Some of the issues and background for this amendment can be found here at Findlaw: Freedom of Speech and press: Adoption and Common Law.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate. In the course of debate, Madison warned against the dangers which would arise ''from discussing and proposing abstract propositions, of which the judgment may not be convinced I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.''6 That the ''simple, acknowledged principles'' embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language.


Ok. Let's face it. Our fore fathers were more like libertarians than modern day democrats or republicans. The issue here was to keep the language simple, because "proposing abstract propositions, of which the judgement may not be convinced" means, making too many specific laws could either apply too much restriction or in reverse, allow for people to point and say "this is not included on the list" therefore, it is allowed under the law. They left it open for a reason.

The commentary goes on with a quote from Sir William Blackstone, an english jurist (lawyer) who gave lectures at Oxford (in England), starting in 1758 concerning "common law". His lectures were the basis of many points in the Declaration of Independence and subsequent amendments to the Constitution:

''The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.''7


But, there is some history that makes many leary of applying certain laws when free speech is involved:

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment,8 it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act9 and the use by the Adams Administration of the Act to prosecute its political opponents,10 something of a libertarian theory of freedom of speech and press,11 which, however much the Jeffersonians may have departed from it upon assuming power,12 was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times.


The real issues stemmed from the Alien and Sedition Act, several tenets of which Madison strongly objected to, one in particular:

a sedition actstipulating criminal prosecution for conspiracy against the government or for interfering with its operations. This law, as entrusted to the federal courts for enforcement, defined nearly any criticism of the federal government or any member of it as a criminal libel. It had a chilling effect on citizens as well as the press


Interesting point of history, Madison presides over the war of 1812, which many in government and private life, did not support this declaration. While Madison was assailed on every side, he began to pressure his opponents of the war for acting against the interests of the United States, even though he himself had been a vehemenent objector to the problems the Alien and Sedition act might cause.

However much his opponents objected to this treatment, they did not hesitate to attempt to use the laws in their favor:

. Levy, Jefferson and Civil Liberties--The Darker Side (Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: ''The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.'' 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).


In simple terms, whoever was in power, often sought to use the laws to their advantage, regardless of how they felt about the use of such laws against them when they were out of power.

In other instances though, the Supreme Court has asserted that certain acts during certain times could be considered criminal:

But in Schenck v. United States,16 the first of the post-World War I cases to reach the Court, Justice Holmes, in the opinion of the Court, while upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as prior restraint. ''It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.''


Simply, the Supremem Court giveth and takes away. If a man presents a leaflet telling his fellow soldiers to desert, if he does it during peace time, it is still illegal as it might cause problems within a government institution. However, as their was not "clear and imminent danger" his punishment or even consideration of it, must be contingent on this being a "peace time" act and no threat to the government being able to present an army against an enemy.

As opposed to taking the same action within the context of a government at war and being a legal representative thereof (elected official, member of the military, etc), in which case, these actions actually fall under the Amendment 14:

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.


Get that last part? If you did commit such an act, Congress can remove the stigma by a vote of 2/3.

And, Article III, section 3 of the Constitution:

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.


So, who is right? Those that claim they can say anything they want (1st Amendment)and those that claim that they can say what they want, up to a point and considering the conditions (1st Amendment + 14th Amendment + Article III)?

The test, as is attempted to be applied by the Supreme Court is the test of "clear and present danger" (no, not the Harrison Ford movie).

''[E]ven advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on . . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.''


The test of clear and present danger was further placed into context:

The test, rather, must be one of balancing of interests. ''When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.'


A very simple balancing test of clear and present danger has been used throughout our history. That test is the test of "declared war", in which advoctaing the demise of government representatives, giving aid and comfort to the enemy (including materials or spoken propaganda), or straight forward passing secrets of weapons or military plans to the enemy, is the simplest test. It also adheres to the test of Interference with war effort"

At this point, it is easy to see that these folks actually have the protected right, according to the first amendment, to say whatever they like about the government or the President as long as it does not invoke or prepare an "iminent" danger or substantive evil.

For instance, if protestors suddenly ran towards the Senate, carrying clubs and shouting "kill the senators", that would be an imminent threat.

The law, is relatively clear based on the decisions of the Supreme Court, that people may march in the streets carrying "bush=hitler" signes. As long as they do it without causing an actual riot, damaging property, etc, they are within their rights. Once they begin to break windows or overturn cars, they have now posted an "imminent threat" and have lost their first amendments rights.

So, today's screeds regarding "freedom of speech" by those dissenting the war, is legal.

My take on the subject is that "it may be legal" but it's one of the stupidest activities we could be undertaking at this time. The demand to uphold the First amendment has somehow taken over our good sense about how best to defeat our enemies.

Go figure...

3 comments:

Robert said...

"Seriously, in your day to day life, getting up, going to work, getting the kids off to school, going to your church, mosque or synagogue, how often have you actually considered what laws gave us protections to do these things?"
I think that all our other rights protect our right to religious freedom and speech.

Rights don't exist in a vacuum, and no right ever operates at 100%. Its the existence of other rights that mesh together that form the protection against tyranny. For instance, the 'right to life' would be meaningless if you didn't have a right to protect your life (self-defense, gun-ownership), and the right to free speech would mean little if the government could freely search your belongings, or incarcerate you for no reason.

Rights build upon one another.

So when I hear people screaming how the Patriot Act has destoryed our freedoms, I don't much believe them. It takes much more than one action to destroy our freedom. Sure the PA grants more rights to the government (although it certaintly isn't nearly as evil as anyone claims it is), and on principle any expansion of federal power bothers me.

But people are content to harp about their freedom of speech, but they neglect the right to bear arms. Or they ignore the enumerated powers of the federal government in the constitution. Sure its unconstitutional to abridge my freedom of speech, but I don't care if John Kerry 1. Bans guns (against second amendment) 2. Bans them by federal decree (the federal gov't does not have this enumerated right) 3. Establishes a national healthcare system (does not have the enumerated right), etc... etc... etc...

Sure, Bush is exploding the spending for the unconstituional department of education, and I don't care for that. But I think there are worse things.

The point is, you can't be a cafeteria constitionalist. Take em or leave em. All of em or none of em. And don't come crying to me when you're the government's serf.

Kat said...

Robert...excellent points. I agree completely. We have all of our rights as long as all of the other rights are upheld,including the right to own a gun. I do find it interesting that the folks that are screaming about their "right to free speech" would be the first to wipe out the other rights in an attempt to form the "utopian" society.

Like the interesting PC laws that Canada has passed concerning certain language being "hate" speech and can be fined or prosecuted with criminal laws.

These laws are not required under the United States constitution because the right to free speech is balanced by the "clear and present" danger interpretation. Like the white power groups. They may say whatever they like about different groups, blacks, jews, catholics, etc, but the minute they advocate killing said groups and/or act on that speech, they have thrown away their right to free speech.

I don't have to like Aryan brotherhood or people like Louis Farrakhan, but they can speak. I will ignore them until they do something against me or another person that clearly violates their rights. Then they are criminals and should be prosecuted.

In which case, I can uphold the right of protestors to do so and at the same time abhor their message. While I might wish for the sake of our country that they would shut the hell up, I will not say they can't say it. Unless they start torching things or beating up people. Then they have become criminals that have forfeited their rights.

Robert said...

Oh Canada!

You know a man was fined $3000 for buying an advertisement in a paper that referenced Bible verses from Leviticus in regards to gay marriage?

Despicable. Absolutely despicable.

That and with optional shar'ia for Muslims, Canada seems to want to find its way all the way down the crapper.

There are lots of people with stupid ideas, but that doesn't mean we can dedice which ideas are stupid and which aren't. I don't want someone 'smarter than me' deciding whats best for me.

There are several layers of things that prevent tyranny. Seperation of powers (three branches), enumeration of powers for the federal government (sadly ignored), democratic checks on politicians, and of course the bill of rights. I personally think we don't put enough emphasis on enumerated powers, with my personal worry about this centralized monster of a federal government (its already a monster...).