The First Amendment of the U.S. Constitution

WordPress.com is sponsoring/supporting/something-or-other a promotion of the First Amendment. You can find out more about their program at http://1forall.us.

I think this is a great idea. The First Amendment needs more promotion. The entire Bill of Rights needs more promotion, but this is a good start.

So let’s look at the First Amendment.

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.

One of the first things one needs to notice here is that the amendment says “Congress shall make no law”, rather than “here are somethings we think might be good for people,” or “this is only for citizens of the U.S.” The amendment does not grant any rights to anyone. I repeat: The amendment does not grant any rights to anyone. The amendment recognizes the rights already exist and prohibits the U.S. Congress from creating any law that infringes on the liberty of the people to exercise those rights. The purpose of the First Amendment is to place limits on the power of the U.S. government. That is fundamental to understanding the purpose of the First Amendment and the Bill of Rights as a whole.

I will talk about other aspects of the amendment in later posts, but I want right now to address something about the freedom of speech clause that I think a lot of people get wrong. Specifically the issue of what forms of speech the First Amendment does and does not cover.

A lot of people will tell you the First Amendment doesn’t cover things like obscenity, defamation, and things like that. They say these kinds of speech are not simply not covered by the First Amendment. And unfortunately, courts often take that view. I think that is incorrect. What people miss, I think, is that when someone, to use the famous example, falsely shouts “Fire!” in a crowded theater, that goes beyond free speech to fraud that needlessly endangers the lives and health of other people. Which is to say, the perceived limit on freedom of speech is a limit of the individual to infringe on the rights of others, not a limit on the right itself.

When people start saying freedom of speech has limits, then people want to start defining those limits. And when people start doing that, they start wanting to limit all sorts of speech. They want to place limits on who can say what about political candidates or issues and when it can be said. They want to place limits on speech they find offensive. Well what’s wrong with banning offensive speech, you might say. Surely no one wants to allow racist or Nazi types to just say anything they like. Yeah, actually, I do. One, I want them to be able to say what they think so I know who they are. Two, a human being’s right to free speech is not predicated on his or her agreement with me about anything. Including racism or fascism or most any other -ism. Three, once you start down that road, you get ever closer to the danger of having a freedom of speech protection in name and not in fact.

Just look at what some people say in the public arena today. When Bush the Younger was in office, political dissent was often criticized as unpatriotic. Now the situation is reversed, and some people, coughcoughJoecoughKleincough, think criticizing the politics and policies of the President are nearly sedition. This is exactly why we need to staunchly and constantly protect the right to free speech. Even for people with whom we disagree. Even for racists and Nazis and communists and homophobes and people of other religions and Mormons with political televisions shows and  fans of professional wrestling. Freedom of speech for everyone or it doesn’t actually exist for anyone.

But, you might say to me, that guy who yells “Fire!” when there isn’t any fire, surely you don’t mean to protect him doing that. No, of course not. But don’t confuse protecting the rights of everyone else in the theater with limiting the right of the guy who yelled “Fire!” First of all, it’s not his right one needs to address. It’s his fraudulent exercise of his liberty one needs to address. The guy who falsely yells “Fire!” in the crowded theater has abused his liberty and infringed on the rights of others. Clearly, if there was a fire, then shouting to alert people to the problem is not bad thing. So the problem is not in the yelling of the word ‘fire’. The problem lies in the false nature of the cry. Context matters. And the liberty of the individual to exercise his or her rights is always limited by the rights of other people. It’s not yelling “Fire!” that is the problem. It’s lying with intent to cause panic that is the problem.

What about obscenity? First, you have to answer, what is obscenity? Is a statue of a nude woman obscene? What about a painting of a nude woman? How about a photograph of a nude woman? What about the innocent photos a grandmother takes of her three-year-old granddaughter just after the little girl gets out of the bath? Is that obscene?

What about incitement to lawless action? What does that mean? The people who wrote the First Amendment had pretty much all participated in a rebellion against the government of England, and many of them had written or spoken in language that was clearly incitement to break the law. Don’t get me wrong. I’m not saying it is okay to go advocate the murder of someone else. But look at what civil rights protesters did in the 1960s. They broke the laws in many cases the make their point. Martin Luther King, Jr., wrote eloquently about the importance of civil disobedience.

My point is not to try to write a definitive piece on how the protection of freedom speech in the First Amendment works or should work. Smarter people than me have written books on that. My point is that we make a mistake to say simply there are limits on the right to free speech. The only real limits on the liberty to exercise that right is the rights of everyone else.  My expression of that idea is clumsy and rambling, I know. But if you’re at least thinking about it, I’ve done my job.

10 Responses to “The First Amendment of the U.S. Constitution”

  1. missysubmits Says:

    I don’t necessarily see that speech is being limited by oppression of individual words, but instead sects of people are being quieted by the government passing laws limiting where and when that liberty can be used.

  2. Periodically I end up in discussion with my daughter about what is considered a curse word. I’ve told her no word is a curse word, only the intent behind it is what makes it a curse and how it is used reflects upon that intent. She of course is challenged by this concept by what she is taught in school about how particular words are not allowed to be used. Very much in alignment with this topic about freedom of speech. Some just don’t want to learn the difference.

    • Freedom and schools are, virtually if not actually, mutually exclusive things these day. But I will stop there before I start a rambling rant.

  3. Sir, for me your rants if I may be so bold as to describe some of your posts as such, do serve to at least educate me. I am learning more about politics, government and people’s rights here than I have anywhere else. And oddly enough I find your words very much in alignment with how I have intuitively felt about most of these things in my life, when I had very little knowledge to support my feelings. If you feel the need to rant please don’t hold back. I have no doubt I would learn much and indeed there is much I do not know or understand. I came here to learn whatever I could about submission and what it means to me. I never expected to end up learning about the world around me or to find a mind such as yours that quite frankly leaves me amazed with every post I read. I just wanted you to know my feelings in this regard and that this is no game to me. You may post or keep this private, whichever will please you. Thank you, Sir, for your kind words and sharing your thoughts with me.

    • In brief, schools are have become less about passing on useful information and more about regimentation and control. Schools keep having zero tolerance policies that leave no room for common sense. Many schools ban the wearing of certain colors or items of clothing because gangs use those colors or items of clothing. Freedom of expression is either denied or tightly regulated because someone is afraid that someone else might be offended. School administrators bully children to make a show of being concerned about drug use, then insist there is no place for bullying in schools. Spending on public education has been increased by something like 400% over the last few decades, while math and reading scores have remained the same. But any changes to public education status quo that are not spending even more money on teacher and school administrator salaries is opposed vehemently by teachers unions. Parents all over the country who are desperate to try something different get told they should not complain because they do not know how hard it is to be a public school teacher.

      From the federal government on down, there is an effort to squeeze freedom out of the school system. Thank God there are people fighting back and getting charter schools and less expensive private schools started. Thank God there are parents who are taking the time to form home schooling groups so that they can help their children get the education the schools in their area simply will not provide. There are options, and most of them involve stepping away from the public school model that has been promoted in this country for the past 50 to 100 years. But the people in charge of that public school system refuse to take the hint and continue to insist that public schools just need more control and more money.

      And do not even get me started on colleges and universities. For an example of just some of my problems with them, go to the Foundation for Individual Rights in Education website.

      So endeth the rant.

  4. Thank you, Sir. I am from the US but live in Canada now, my daughter goes to a school here (5th grade). I saw some of the controls and how they try to conform students into ‘good citizens’ when I attended a morning session in the US of a friend’s child. I saw a good bit of what you mentioned while there.

    I also saw it even worse in Montreal when my daughter attended kindergarten and 1st grade there. And don’t get me started on my own rant about Quebec and the situation there with Immigrants and English and French school systems.

    Here in BC where she attends which is a community school it doesn’t seem as prevalent other than the financial controls and the curriculum. And BC Teachers have been in a labor dispute for some time. She has had some very wonderful teachers and her principle does not use fear or bullying to keep the kids in line. They have a STARS program, rewarding students for (Safety, Teamwork, Attitude, Respect, Responsibility, Success), though the recognition is of course at the whim of the teachers it at least is a positive approach to teaching respect and responsibility. They do so in a positive environment. I’m not saying they do not have some of the inherent problems you speak of but from what I’ve seen they seem to have not fallen as low as the public schools in the US.

    I do however teach her how she can research and learn for herself as we have had conversations that disagree with what she is taught. Especially in regards to how each nation’s history is biased towards making that country appear in a positive light.

    I will visit the website for further information.

    Thank you, Sir, for taking the time and the additional information.

    • “I do however teach her how she can research and learn for herself as we have had conversations that disagree with what she is taught.”

      Brilliant. That is what should be done. There are so many lessons I had in school that I learned later were not quite accurate. And some that were just flat wrong. Let us just say for now, I am not one who spends any time with the cults of President Lincoln or FDR.

      The world is not so complicated as some people make it out to be, but sometimes is it more complex than the text books and the commonly accepted legends make it out to be.

  5. Thank you Sir. After high school, other than a couple community college courses, and a technical school for what little they taught on computers, I am self-taught including what I use now in my field of work. University diplomas in my opinion are overrated.

    In regards to the world it is my belief they make it appear complicated in order to keep the masses confused.

    • I agree with you on university diplomas.

      In my opinion, people who try to portray the world as complicated do so because it, one, makes them feel smarter for understanding it, and, two, the compilations to which they subscribe support their world view.

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