Saturday, October 28, 2006

AMENDMENT I (part one)

"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."

James MadisonJames Madison, who wrote the bulk of the US Constitution and was considered the most intelligent of the founding fathers, wrote the first amendment as well. He thought initially that the 1st amendment would be at best a "parchment barrier," of little use against government encroachment on powers if that should happen, but included a second amendment that would extend these freedoms to the state level, which was rejected - not until the 1920s was it decided this was true for states as well as federal by application of the 14th amendment.

However, he came to understand over time - especially watching Hamilton's use of the treasury department to consolidate power and influence policy in the Washington administration - that the people's freedom to speak and influence government was a critical check on the power of the federal government.

But it was under the Adams administration in 1798 when the Sedition Act was passed by congress - the Federalist party controlled both houses and the Presidency - which made it a crime to publish any false, scandalous, and malicious writing against the government of the United States, the President, or either house of Congress—but not against the Vice-President (Jefferson). Jefferson was not a Federalist, he was the informal leader of the nation's first opposition party, the Democratic-Republicans. The Sedition Act filled Madison with concern as he saw the way it was implemented to punish people who questioned or had negative opinions about the government. In practice it was a tool used to try to keep Jefferson's party from gaining power or having a voice in the press.

For example, Congressman Matthew Lyon (Vermont) wrote “Under Adams every consideration of public welfare is swallowed up in a continual grasp for power and an unbounded thirst for ridiculous pomp and foolish adulation and selfish avarice. The Senate treats Adams with more servility than ever George III experienced from either house of Parliament.” Lyon spent four months in jail and paid a $1,000 fine for this statement, but was reelected while in prison.

Jefferson was elected president and the Sedition Act expired in 1801, although a new one was passed in 1918 to control public opinion and expression during WW1. It was repealed in 1921. that law and the government's activities during the first World War are actual examples of the loss of liberty and fears that some consider to be happening now under the Bush administration. For them, a study of that time period would be useful in terms of comparison and perspective. A study of the Sedition Acts would be handy for better understanding of what they think the PATRIOT act does as well.

For Madison - the man who wrote the first amendment, it was not about personal expression, it was about the ability to speak out against the government, a check against federal power by the people. Madison understood this amendment not to be an unrestrained, unlimited guarantee of totally free expression on any form, but rather a protection of the citizen's ability to disagree with and speak out against the government and its actions.
In New York Times v. Sullivan (1964) the lawyer for the Times, Herbert Wechsler, claimed that a libel verdict against the newspaper violated the First Amendment. The court decided that
a State cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" - that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.
In other words, because of their public position and government status, the requirements for proving libel and silencing speech or the press are greater than they would be for a private citizen. Wechsler maintained that Madison's rejection of the Sedition Act of 1798 demonstrated the key meaning of the first amendment: protection of dissent and public disagreement with the government. The Supreme Court embraced this view, stating in its opinion that the controversy over the Sedition Act “first crystallized a national awareness of the central meaning of the First Amendment.”

But from that time on, the courts have all but abandoned this concept, and have steadily expanded the idea of freedom of expression to cover areas never intended or desired by Madison. Instead of being a check and balance against federal power, free speech now means any act or expression by someone - opinion or not - whether rational deliberation or not.

Free speech in the first amendment never, ever meant dancing topless or burning flags, it never meant obscenity or shocking, offensive materials. In no way did this amendment protect an abstract search for truth or "collective understanding," and it was not intended to be a protection for personal expression. States and societies were free to restrict or allow expression as they saw fit or thought were proper, based on the community and the ideals of the people involved.

The last tattered remnants of this concept surround obscenity laws, which define something as obscene based on what the community thinks. If topless dancing is considered obscene in your home town, then the Supreme Court has defined that as obscene - for you - and thus not protected by first amendment rights. For now. Almost all expression except political dissent and rational discussion was intended to be interpreted this way originally.

Burning newspapersIn 1735, newspaper publisher John Peter Zenger's New York Weekly Journal so enraged the Governor of the New York colony that he took the man to court for libel. Under English Common Law, the jury was restrained to finding if the accused had actually printed the libel or not. At the time, something being true was no defense for libel, only that it was defamatory. Juries were not to decide whether something was libelous or not, only whether the printing had actually taken place.

Zenger's lawyer Andrew Hamilton, however, took a different tack. He called for the jury to nullify the law with their decision and appealed to them to recognize that the ability to speak or write against the tyranny or oppression of an administration is critical for a free people.
It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow....

The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country.... This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery....

Power may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived....

I hope to be pardoned, Sir, for my zeal upon this occasion....While we pay all due obedience to men in authority we ought at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects....

You see that I labor under the weight of many years, and am bowed down with great infirmities of body. Yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my services could be of any use in assisting to quench the flame of prosecutions upon informations, set on foot by the government to deprive a people of the right of remonstrating and complaining, too, of the arbitrary attempts of men in power....

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.
His argument was well received by the jury, made up of people who had suffered under the governor's corruption and spite. Historians seem unable to find anything good about the man, in fact. The jury found him not guilty, and although the law was unchanged, it set the basis for future developments in freedom of the press.

Justice Blackstone is the first to have expressed the concept of "prior restraint" in defining freedom of the press. This is the concept that the press should be free of any restrictions to it's content before printing. This concept has been a treasured and protected ideal of the American press for centuries and has spread to other nations as well.

DagonBut how far does this protection go? Clearly extreme examples (deliberate, malicious libel, for example) are not allowed, you cannot deliberately and falsely print that x politician is a baby raping monster who is building a shrine to Dagon out of the bones of his victims with the intent to harm and defame him. Prior Restraint requires very difficult burden of proof, one can compel a paper not to print some things, but it is a difficult process and requires very strong reasons.

In 1971, the Pentagon Papers were published by the New York Times (along with a CBS special by Dan Rather) using leaked classified documents to tell how President Johnson had expanded the war to include bombing along the Ho Chi Minh trail in Laos. The government was angered because classified documents had been released and printed for the world, and because this harmed their efforts to fight the war. The Supreme Court decided in New York Times v. United States that the injunction to stop printing against the Washington Post and New York Times were unconstitutional violations of prior restraint.

The decision was inconclusive, it didn't say whether printing classified documents was acceptable or not, just that the injunctions were improperly obtained. To this day it is considered by some unclear whether a paper may freely print what is illegal for ordinary people to even read, let alone show to the world.

The New York Times has gleefully begun printing various classified documents once more, attempting to repeat the damage they did to the Vietnam War and President Nixon (even though the Pentagon Papers were about decisions from 1945-1967, before he was elected). This kind of activity clearly and obviously violates the laws regarding classified information, but the sacred concept of freedom of the press is so ingrained in the American psyche that even questioning it is considered a violation of the first amendment by some, and the government is extremely hesitant to take action.

Certainly the government must not be free to ban printing without restriction, and any attempt to prevent something from being printed or said should meet heavy opposition and require great evidence of how important and critical this ban would be.

But at the same time, clearly newspapers cannot be free to print whatever they wish, whenever they wish, on any topic they wish without any restraint or concern over legal action. The press must be free, yes, but not totally and completely free without the slightest restriction of any kind. Newspapers have a responsibility to the public as well as themselves, and should the papers abuse this responsibility and liberty too egregiously, then they should face penalties just as any other entity that abuses their freedoms. Newspapers cannot be the only entity in the world that can act free of consequence.

In the final analysis, all rights have their free expression limited by the society at large to the extent they are deemed excessively damaging or pernicious. For example, you have the freedom to write, but cannot write deliberately, maliciously libelous information about someone.

You have the freedom to speak, but cannot shout dangerously and deliberately inflammatory things (shouting "fire" in a fireless, crowded theater is the classic example - it might cause panic and thus harm people, not to mention harm the revenue of the theater owner). Advertisers can speak of the benefits of their product (or, more commonly today, show appealing images and try to make you associate them with their product), but cannot outright lie about your product's benefits or invent false ones. You cannot freely enter into a contract with a hitman, that contract being expressly to cause harm to another person.

All rights are hedged by the amount of damage their expression may cause others. Rather than a balance between liberty and restraint - which suggests an even amount of either on a scale - a proper perspective is required. Enough of one and not too much of the other. This perspective is tricky and must over time be shifted slightly to match changes in technology and events, but must be maintained in order to have a civilization or society of any kind. On one side, unrestrained, total liberty in all actions and behavior demolishes society and reduces liberty by making the most morally unrestrained and tyrannical free to exert their oppression on all others. On the other, a loss of the expression of rights is instantly tyranny by the government. Care must be taken not to climb onto the horse with such vigor that you fall off the other side.

During times of great crisis or emergency, some rights must by definition be restrained - that is the idea behind curfews and martial law. These steps are commonly taken in the aftermath or during some great catastrophe for the protection of people and to give the law enforcement authorities greater power to stop looting and rioting. Sometimes this can be taken too far - in New Orleans after hurricane Katrina, police were disarming citizens, taking away weapons (except for the bodyguards of the very wealthy). Recently congress passed a law making this illegal, although the 2nd amendment seems to make that clear without requiring additional legislation.

In essence, during crises, the perspective shifts toward restraint, and during safety, the perspective shifts toward liberty. The important key to this is to allow and understand the shift. Demanding identical liberty during times of crises is as bad as demanding greater government control during times of ease and safety. During a war, for example, the freedom to speak and transmit information must be more restricted to protect soldiers and fight the enemies of the country. When not at war, those restrictions must be lightened and less stringent. It is insane and unreasonable to demand that no limitations on free expression of rights be in place during times of emergency - and tyrannical to demand they remain when not in emergency.

This is part of the Greatest Document essay series
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Blogger Anna Venger said...

Sensibly conclusion.

While the Alien and Sedition Acts were over the top, Jefferson shouldn't be painted with a halo. He was behind the printing of horrible and untrue things about Adams and did much to undermine his administration while he served as Adams's v.p. Jefferson also was two-faced toward Washington.

2:59 PM, October 28, 2006  
Blogger Anna Venger said...

ahem. That was supposed to say "sensible".

3:00 PM, October 28, 2006  
Blogger Richard said...

I do believe that this is a well written and thought out column. If I get the gist of this, then the printing of the NYTs of the NSA, and the tracking of finances of terror groups and their supporter certainly did not serve the public interest, but instead put the public more at risk as the aforementioned groups would now KNOW that they were being watched.

3:54 PM, October 28, 2006  
Blogger Anna Venger said...

The NY Times certainly did NOT serve the public interest, only its own and did indeed put the public at more risk. Some would argue that the NY Times actions were not only reckless but possibly treasonous as well. No, that was not freedom of speech in action but something quite different.

And CT's posts are always well-written and thought out. :)

7:33 PM, October 28, 2006  

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