Sunday, October 2, 2011

Is Speech Really Free?

by Rangerwife

Freedom of speech is a phrase that is often quoted here in America. People all over the nation say the United States Constitution guarantees us this right. Upon further questioning they will say this right is derived from and protected by the First Amendment. Yet examining the First Amendment reveals no such guarantee, but rather a prohibition on Congress concerning making laws that abridge our freedom of speech. A misunderstanding and/or misinterpretation of any law or regulation can and will be taken advantage of. We must go to the roots to insure that this does not happen and to refute it incase it does happen. As American citizens, it is our duty to learn the intent of the First Amendment and our rights concerning speech.

The First Amendment to the United States Constitution states: "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 to peaceably assemble, and to petition the Government for a redress of grievances." Please note that this amendment is directed towards Congress alone. It states, "Congress shall make no law...abridging the freedom of speech." This amendment is about law making, not guaranteeing rights of speech. The First Amendment does not guarantee the right to speak or act in any way we desire, it only protects speech from being regulated by Congress.

In drafting and ratifying the First Amendment our Founding Fathers were trying to protect our freedom of speech. However, the way the amendment is worded we are only protected from the U.S. Congress. The intent of the First Amendment is clarified in (papers 15:367), in the writings of Thomas Jefferson to James Madison on August 28, 1789: "...the following alternations and additions would have pleased me. Art.4 ‘The people shall not be deprived or abridged of their right to speak to write or otherwise to publish any thing but false facts affecting injuriously the life, property, of reputation of others or affecting the peace of the confederacy with foreign nations.' "

In 1798, only a few years after the ratification of the First Amendment, the Sedition Act was passed. This law, initiated by president John Adams, provided punishment to anyone who spoke out against the government, Congress, the president, or the United States Constitution "with intent to defame" them or to bring them "into contempt or disrepute" or to incite rebellion. The punishment for this crime was up to $2000 and two years in jail. Thomas Jefferson and James Madison, along with many other Americans, claimed that this Act was unconstitutional. They said that it was a direct contradiction to the First Amendment. When Thomas Jefferson became the United States president in 1801, he pardoned all who were convicted under the Sedition Act. The Sedition Act was unconstitutional because it was a law passed by Congress that abridged the freedom of speech.

On May 16, 1918 there was a second Sedition Act passed. This Act stated the following:
Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements,...or incite insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United states, or shall willfully obstruct...the recruiting or enlistment service of the United States, or...shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States...or shall willfully display the flag of any foreign enemy, or shall willfully...urge, incite, or advocate any curtailment of production...or advocate, teach, defend, or suggest the doing of any of the acts or things in this section [section 3] enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both..."

The Sedition Act of 1918 is just as unconstitutional as the one of 1789. Congress once again passed a law abridging freedom of speech.

The American Civil Liberties Union (ACLU) was formed in 1920 as a direct result of the 1918 Sedition Act. The ACLU is an organization formed to protect the freedom of speech. As stated by the Executive Director of the ACLU of Washington, Kathleen Taylor: "...the fundamental role of the ACLU -to defend the free speech rights of everybody, regardless of their views". One of the ACLU's problems is they are fighting for and protecting the freedom of speech, as guaranteed by the First Amendment. I am sure the ACLU has read the First Amendment; however, they fail to recognize that it is only referring to Congress. They do fight against Congress abridging the freedom of speech, but they also fight against any abridging of speech in most any circumstance, with the First Amendment as their main argument. The ACLU believes they are doing a noble work, however they have a false foundation for many of their cases. The ACLU must become aware that the First Amendment to the U.S. Constitution only protects speech from being regulated by Congress.

Once again in 1940 Congress passed a law similar to those of the previous sedition acts. This law made it illegal to urge the violent overthrow of the federal government. However U.S. courts and lawmakers argued that this was an unconstitutional act. Even though the Nazis were giving hate speeches, the courts and lawmakers argued that they were protected by freedom of speech. But where does slander and malice fall into the picture?

Jefferson gave a good definition of slander: "...false facts affecting injuriously the life, property, or reputation of others..." The United States does have laws concerning defamation. "The basic idea behind defamation is simple. It is an attempt to balance the private right to protect one's reputation with the public right to freedom of speech. Defamation law allows people to sue those who say or publish false and malicious comments." The Supreme Court tightened the definition of slander in 1964. The Court ruled that a person accusing someone of slander must be able to prove that the statement was made with intent of "actual malice."

1964 was also the year that the Berkeley Free Speech Movement took place. Over 1,000 students at U.C. Berkeley rose up to protest the recent arrest of outspoken student demonstrators. This event has gone down in the history of the "free speech movement." The problem is these students were out of line. They quoted their free speech rights as being derived from the First Amendment. As we know, they received no true protection from the First Amendment. Their assembling was not peaceful, therefore, they were the ones who were being unconstitutional. They may have had the right to speak out; they may have been wronged; but the Constitution did not give them the right to do as they did.

The First Amendment has been overused and misused. Some people, including our judges and lawmakers, need to reread the U.S. Constitution (including the amendments). In 1998 the First Amendment was used in defense of the talk-show host, Oprah Winfrey. Four farmers from Texas were suing her for a comment she made on her show. These men states that as a direct result of her comment their cattle prices were plummeting. Oprah's attorney called the case "an important test of free speech." Oprah won the case; however she used a false foundation. She has the same rights as all Americans concerning speech, but those rights are not derived from the First Amendment

If freedom of speech is not regulated or protected by the civil government, individuals must use self-discipline. As the boundaries of free speech expand, the importance of ethical speech increases. In many cases words in actions can be and must be regulated. When living at home, if my parents did not want me to act in a certain way in their home I had to conform. If my boss asks me not to speak about politics with his customers I must comply. Speech has never been, and never will be free. No matter where you go or what you do there are rules and regulations, even if you put them on yourself.

The phrase "freedom of speech" is one, many people use to defend themselves. However, they have no foundation for their defense, since the First Amendment to the United States Constitution is directed towards Congress. This amendment has been overused and misused in America. We must become educated ourselves and we must educate the general populous so that these misconceptions will not be believed and spread. It is time for Americas to draw from her roots and learn her heritage.

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