|
Page 2 of 5 II. Interpreting and Applying the First Amendment 1. The question is what forms of expression are entitled to constitutional protection? 2. The 1st Amendment protects freedom of expression and freedom of religion, basically. i. William Blackstone, in his Commentaries, expressed the traditional view of free speech and a free press, saying in 1765 that a free press is essential to a free state and that a free press must enjoy the freedom from prior restraint (censorship). ii. The U.S. Sedition Act of 1798 imposed no prior restraint against publishers but made them liable to punishment AFTERWARDS, but at least it was a trial by jury, not by one judge. a. When Jefferson became president and pardoned all those convicted under the act, he wanted state governments to punish publishers, not the federal gov’t to do that. iii. In 1919, the Espionage Act was examined when Charles T. Schenck was brought to trial for sending cards that encouraged men to resist the draft (opposing views = Congress can’t restrict speech vs. Congress should punish dangerous speech), and Schenck’s conviction was upheld by the Supreme Court via the clear-and-present-danger test: one cannot use his freedom of speech to create a “clear and present danger” that the Constitution is designed to prevent. a. One can’t falsely shout “fire” in a crowded theater, causing a panic, and some things that are okay to be said in peacetime are not okay during wartime. 3. The due-process clause (“No state shall…deprive any person of life, liberty or property, without due process of law.”) might have restricted states’ rights, but for 50 years, the Supreme Court denied that this clause made the Bill of Rights applicable to the states (so they could still pass whatever sedition laws they wanted, etc…), but in 1925, when Benjamin Gitlow was convicted of violating New York’s sedition law, the Supreme Court ruled that freedom of speech and of the press were among the fundamental personal rights guaranteed by the due-process clause of the 14th Amendment. 4. Another question was whether simply advocating the overthrow of the gov’t could be punished; the Supreme Court said it could, and that the gov’t didn’t have to wait until a revolt was about to happen if it knew that plans had been laid for one, but later it said that solid proof had to be found. i. Basically, during wartime or other times of crisis, personal freedoms are more restricted. ii. During peacetime, people have freer liberties and don’t have to worry about rights as much. 5. Similarly, even controversial groups like the Ku Klux Klan and Nazi supremacists had the right to march as long as they did not incite public violence or chaos.
|
