23 May 2009

a misnomer...

Amendment I

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.

over the years we have heard this cry of free speech being constricted from the religious zealots more than any other group.

just within the last few weeks we have heard it invoked with things like the Miss California brouhaha and by NOM. they believe that their inherent right of free speech is being denied, but more important, they believe they actually have this right because of the First Amendment cited above.

they need to read the amendment very carefully. it DOES NOT say that they have the right to say anything that they want. it says
Congress shall make no law... abridging the freedom of speech

it is very clear. the amendment is establishing the prohibition of Congress to pass laws prohibiting the freedom of speech. however, it does not give anyone the right to say whatever they want, true or not.

as a matter of fact, SCOTUS has time and again upheld the decisions of employers, organizations, the general public, etc. in restricting what people can say.

the quintessential argument for this is the Schenck Case, heard by SCOTUS in 1919. it is widely known for the phrase "shouting fire in a crowded theater", itself a misnomer because it is misquoted often. the actual ruling says:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of 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.
i put the key word in bold - falsely.

the Schenck case itself is very interesting. it dealt with the distribution of flyers during WWI opposing the draft. the Court unanimously held that this was a condition that dealt with a clear and present danger to the U.S. - it's right to protect itself.

the Court decision was subsequently overturned by itself in Brandenburg v. Ohio (1969). It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. [Wikipedia]

this case dealt with a KKK member who was convicted of alleged activities and speech that could cause a clear and present danger since one of the entities he spoke against was the U.S. government.

the 1969 decision changed the test from clear and present danger to "imminent lawless action". it is the bellweather still used by the courts today.

again, though, the Court is upholding the idea that people cannot say whatever they want, if it is going to cause larger problems or dangers. only now there has to be proof of imminent danger. shouting fire in a crowded theater would still be a problem, if it is false.

so, did Miss California border on causing imminent lawless action? no, but here is her problem. she was under contract to an business run by a private concern. hence, she was really under the restrictions of that corporation. she could, in fact, be censored by the organization if she broke her contract with them. [she was by the California subsidiary but not he national.]

her right of free speech was in no way infringed upon by Congress. too often people use the First Amendment to indicate that they can say whatever they want, whenever they want. it doesn't. it says that Congress cannot pass a law infringing upon free speech. the courts say there has to be some reason for the speech that will not cause an imminent danger.

No comments: