Constitution and First Amendment Mr. Thacker
" In a republican government the majority must govern. If the minor part governs it becomes aristocracy; if every one apposed at his pleasure, it is no government, it is anarchy and confusion."
Massachusetts State Legislature
Definition of Republicanism -- a form of government that is based wholly on the consent of the people.
I. Introduction
C. Need for a more Centralized government
II. Failure of the Articles of Confederation
A. Economics (taxes)
B. Treaties (international affairs)
C. Structure (Centralized vs. States Rights)
III. History of the Constitution
A. Virginia calls for a convention at Annapolis, Maryland to discuss trade (Sept., 1786)
B. Second convention called for in Philadelphia to rewrite the Articles of Confederation (A of C)
C. History of the Philadelphia Convention
1. May, 1787 -- 55 men from the states except Rhode Island
2. Ben Franklin the oldest at 81, average age was 36.
3. George Washington elected as the chairman
4. Twelve men do majority of the work
a. Ellsworth and Sherman of Connecticut
b. Gerry and King of Massachusetts
c. Patterson of New Jersey
d. Morris of New York
e. Wilson of Pennsylvania
f. Rutledge and Pinckney of South Carolina
g. Randolf, Mason, and Madison (36) of Virginia
5. Madison most important (Father of the Constitution) was a very close friend of Thomas Jefferson who was in France. Madison brought over 200 books on governmental systems to the convention, he was a scholar.
6. April, 1787 Madison wrote a lengthy paper entitled "Vices of the Political System of the United States." Madison sighted eleven major flaws in the A of C, among them were "encroachments by the states on the federal authority" and "want of concert in matters where common interest requires it."
" such a modification of the sovereignty as will render it sufficiently neutral between the different interest and factions, to control one part of the society from invading the right of another, and at the same time sufficiently controlled itself, from setting up an interest adverse to that of the whole society. (principle of checks and balances)
7. Madison preferred large diverse republics, therefore no one group could control the proceeding of government.
D. The Constitution
1. Virginia Plan, New Jersey Plan and Compromises
2. Completed in four months May to Sept. 17, 1787
3. 42 delegate's sign, three states refuse because of no Bill of Rights
4. Convention was secret, Madison's' note were not released until after his death in 1840.
5. Constitution was submitted to the States for ratification (9 of the 13)
6. Ratification split the nation into two groups:
Federalist Anti-Federalist
supported apposed -- no B of R
7. Madison, Jay, and Hamilton publish the "Federalist"
8. New York ratifies (promise of B of R) on July 26, 1788
9. Congress meets -- Madison places nineteen amendments before the House of Representatives. Twelve went to the states, two failed, on Dec. 15, 1791 the first ten amendments are added to the Constitution, they are known as the Bill of Rights.
IV. The First Amendment
A. Introduction
1. Articles of Confederation (1781)
2. Federalist vs. the Anti-Federalist
3. The Federalist wanted centralized government the Anti-Federalist wanted guarantees of individual rights.
B. The Bill of Rights
1. B of R is an enactment of the philosophy of individual natural rights. The idea that government should only maintain order and protect natural rights. (John Locke)
2. Two Englishmen shaped colonial thought, John Trenchard and Thomas Gordon and their 138 essay entitled "Cato's Letters."
"free speech is essential to free government"
3. According to Trenchard and Gordon, "free speech" advances three distinct values:
a. Allows people to criticize government and make it more responsive to popular will.
b. Necessary for the pursuit of truth in science and art.
c. Essential for individual self-fulfillment and expression.
4. Thomas Jefferson writes Madison (1787)
a. Likes the Constitution but wants a Bill of Rights
b. First Congress, Madison drafts a Bill of Rights based on Virginia Declaration of Rights (George Mason).
V. The First Amendment in Action
A. Dormant for almost 126 years
B. Alien and Sedition Acts 1798 (blow to freedom of the press) "any false, scandalous and malicious writing" that brought the federal government, Congress or the president into disrepute. This was in regard to "no prior restraint."
C. Jefferson responds to the Sedition Act by issuing the Kentucky Resolution:
"The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendment thereto, they constituted a general government for general purposes, delegated to that government certain powers, reserving, each state to itself, the residuary mass of right to their won self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no effect."
Thomas Jefferson opened "Pandora's box" and invented the controversial theory of state nullification of unconstitutional federal laws. (Civil War)
Hi
D. Lincoln (1864) suspends writ of habeas corpus and jails southern sympathizers.
E. Congress passes the Espionage Act of 1917 -- Eugene V. Debs is on trial in Schenck v. U.S. Appeal (1919) and Oliver Wendell Holmes wrote:
" We admit that in many places and in ordinary times the defendant is 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 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."
The "clear and present danger" criterion replaced the long held "dangerous tendency" criterion suppressing free speech. In the court case of Abrams v. United States, (Sedition Act) Holmes states that the First Amendment guarantees one's right to freedom of opinion, if not of action, Holmes wrote the dissenting opinion asserting the "free trade of ideas (not wartime) In the court case of Gitlow v. New York (1925), Holmes in the dissenting argument said that Gitlows publication was protected by the Fourteenth Amendment.
VI. The First Amendment: A Definition of Terms
The First Amendment of the Constitution
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.
A. Ten Key Terms
1. Eight are unambiguous:
a. Congress and law are defined in Article One
b. Make, shall, freedom, and abridging have clear meaning in everyday language.
c. No and or are universally defined and even used by computer programmers.
2. Two terms are ambiguous
a. Speech -- does this include sign language?
b. Press -- does this include Braille, film, or CD-ROM?
3. Tradition has allowed for a broad interpretation of the ambiguous terms of Speech and Press and most people have accepted various mediums as having First Amendment protection. (i.e.,. radio and television)
B. Strict Constitutionalist (or constructionist)
1. The key word is Congress
a. The Constitution does not say that government can not make law is says that Congress shall make no law. Therefore can state governments make laws against free speech, yes?
b. There is something that can be done about child pornography and advertisements for illicit acts, but the bottom line is that it has to be done at the state or local levels -- the concept of federalism at work.
2. First Amendment and regulating speech -- ask three questions:
a. Is the directive a law?
b. Did Congress make the law?
c. Does the law abridge the freedom of speech or press?
3. The First Amendment does not restrict the States from legislating against speech. Therefore, the issue regarding the First Amendment is not "can speech be abridged," but "who can abridge it."
4. The First Amendment focuses on the sender of information not the receiver of information.
5. The First Amendment sought to limit Congressional power -- and retain the power of State legislatures to limit speech rights.
VII. The First Amendment on Trial
Article Three of the Constitution of the United States
Section 2 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority; [to all cases .... etc.] ..... In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations, as the Congress shall make.
provided for the Supreme Court to have six members: a chief justice and five associate justices. Section 25 -- allowed appeals from state courts to the federal court system when certain types of constitutional issues were raised. This section implemented Article VI of the Constitution, which stated that federal laws were to be considered "the supreme law of the Land." Section 25 allowed the national judiciary to overturn state court decisions in cases involving the Constitution, federal laws, or treaties.
Marbury was a "midnight judge" who was given a commission by outgoing President Adams; the commission was not delivered as of March 3. When President Jefferson term of office began on March 4th he ordered his Sec. of State, James Madison not to deliver the commission. Marbury petitioned the Court.
Chief Justice Marshall issued the decision of the court:
1. Marbury had the right to receive his commission
2. The Judiciary Act entitled Marbury to the writ of mandamus
3. Article III of the Constitution -- the issue in this case was whether the court had original or appellate jurisdiction -- Marshall said that no act of Congress could do something forbidden by the Constitution. Marshall declared, Section 13 of the Judiciary Act (allowing the court a writ of mandamus) a violation of the Constitution. With this interpretation of the case he established the Supreme Courts power of "judicial review."
Reminder: The Courts have one duty --- to apply the "law" (made by the legislature) to the "facts" (as reported by the executive) of the "case" (as presented to the judge in a courtroom), and make a determination of the guilt or innocence. Under Article VI governmental officials take an oath of office to "support this Constitution."
A. The Internet
1. Has all the First Amendment protections of any other media
2. States may regulate the Internet like they would any other form of media, no more and no less.
3. The major problem is that the Internet is global and therefore Congress will establish most of the legislation pertaining to the Internet. This is the point were the Internet and the First Amendment will come into conflict.
B. Court cases that effect the Internet
1. Obscenity and Speech
a. Roth v. U.S. (1957) Court ruled that obscenity was not protected by the Constitution. Justice Stewart once said that he couldn't define it, "but I know it when I see it."
b. Miller v. California (1973) established a three part guideline for determining whether a work is obscene
1. Would the average person applying contemporary community standards find that the material, taken as a whole, appeals too prurient (i.e., purely sexual) sexual?
2. Does the work depict or describe, in a patently offensive way, sexual conduct specifically outlawed by applicable state law? (Smith v. U.S. -- 1978, strengthened the community rights to set their own guidelines of obscenity and juries ability to apply their community standards)
3. Does the work taken as a whole lack serious literary, artistic, political, or scientific value?
c. FCC v. Pacifica (1974) defined indecency as consisting of the so-called "seven dirty words." This definition was altered to material which “depicts or describes sexual acts." This is the definition that the Congress seems to be applying to the Internet. (breast cancer) Under CDA those words would make me liable for up to 5 years or a fine of $250,000.00.
d. Butler v. Michigan ( ) government cannot ban indecency in print media but they can regulate indecent speech by "channeling" or time and place restrictions.
e. New York v. Ferber (1982) the state's have a compelling interest in safe-guarding the physical and psychological well-being of minors, this interest out-weighs the First Amendment interests of the child pornographer.
f. Mapplethorpe Obscenity Trial (1990) (homosexual art) reaffirmed the obscenity principles of the Miller case (prt 3).
2. Content and Time, Manner, and Place restrictions (Two ways to regulate expression) the protection of the "content" of speech is at the core of the First Amendment. Generally government cannot regulate content (except obscenity, libel, or false advertising) regulating when, how, and where is allowed -- Cox v. New Hampshire (1942)
3. Clear and present danger/balancing/and incitement test
a. Feiner v. NY. (1951) clear and present danger, allowed police to prevent fight or riot. (Heckler's veto)
b. Balancing test -- individuals right v. the right of the government to protect the receiver.
c. Brandenberg v. Ohio (1969) the incitement test -- imminent lawlessness. Collin v. Smith (1977) -- Nazi's have the right to demonstrate.
4. Freedom of the Press -- First Amendment protects us from government censorship of newspaper, magazines, books, radio, television, and films. Does this include the Internet? Some libraries think so.
a. Sheppard v. Maxwell (1966) "justice cannot survive behind walls of silence (no secret trials).
b. NY Times v. U.S. (1971) Pentagon Papers Case (Daniel Ellsberg) Judge Burger dissented. The first challenge to free press. "the government must meet a heavy burden of justification before it can restrain the press from exercising its First Amendment right to publish (national security).
c. Smith v. Daily Mail Pub. Comp. (1979) print juvenile's names
5. Court and the Internet
a. ACLU v. Reno (1996) This case involves the Communications Decency Act of 1996 and specifically sections 223(a) and 223(d). The bottom line is that these sections of the CDA were found unconstitutional and revolves around the words "indecency standard" rather than "harmful to minors" standard that were apart of the original bill.
b. Justice Oliver Wendell Holmes said in one of his opinions that the most important value of free expression is "not free thought for those who agree with us, but freedom for the thought we hate." We must maintain a free marketplace of ideas.