The First Amendment (Part one of what may be a series)
Our friend Veritas Omnia Vincit returns, now with what perhaps may be a summer project. None other than the Bill of Rights, thankfully one at a time. He’s putting some perspective behind each Amendment, the thoughts of some of the Founders as they pertain to the Amendment, and perhaps a couple questions on today’s interpretation of that Amendment. Relax, I’m told there is no math on the quiz. Anyway, here’s VOV-
Veritas Omnia Vincit
“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.”
By now if you’re unaware of my penchant for reading the founders and considering how far away from their original ideas we’ve drifted you’re probably not interested in any of the following article’s points or commentary.
Whenever I discuss these topics with friends the first thing I ask is how do they understand the phrase “shall make no law”? Because you often find people are okay with laws that restrict speech such as the old canard of yelling fire in a theater, or fighting words, or the dreaded “hate” speech. Once someone tells me they are comfortable with those laws the discussion centers around why they believe it’s okay to restrict an amendment that clearly states “Shall make NO law”? There are multiple reasons for this line of discussion as the concept of allowing restrictions to the first means that one doesn’t believe the original ten amendments to be an inviolable set of restrictions to contain government over reach. Once someone decides that there are allowable, “reasonable” restrictions to be placed on any of the amendments they’ve essentially lost the argument of preference for a single amendment over the others. These words either mean what is written or they don’t. If they do mean what is written then no laws that abridge the freedom of speech can be constitutional regardless of what any Supreme Court decision has said to the contrary. This is important because it addresses directly the concept of the view that the law is infinitely malleable versus the view of the absolutist nature of the law.
When dissecting any of the Amendments or the Constitution itself I usually start with Thomas Jefferson as his unorthodox religious views, his fierce defense of freedom of conscience, his constant thoughts on personal liberties and freedoms sit well with my libertarian leaning ideals. Jefferson was vehemently opposed to the Alien and Sedition Acts, largely because he felt they were nothing more than punitive attempts to stifle opposition to the current government and violated the very basic principles of freedom of speech for citizens and the press alike. It’s clear in Jefferson’s mind that “shall make no law” meant precisely that, no law period.
Another interesting founder is James Madison, for Madison the first amendment is always to be considered in absolutist terms as Hugo Black had surmised. As much as I love Jefferson, Madison’s view on the first amendment suit me perfectly. It was Madison’s view that for a republic and its people to remain truly free public opinion must be allowed to form unabated without restriction from the Government. It was Madison’s further view those who sought to restrict speech were actually opponents of republicanism. For Madison the free speech of the people and the press were not only natural rights, but were a set of preconditions for self governance such as a Republic.
In our current hyper-sensitive political climate the concept of speech that “goes too far” is often repeated thousands of times by a media no longer representative of the mass of the population but instead represents the interests of the handful of corporations that own the bulk of all media in this nation. The risk to the Republic and the First Amendment is the constant assault on “hate” speech as a compelling argument for additional laws or regulations to negate the devastating effect of words that offend. This new approach to a reasonable restriction is borrowed from the opponents of the second amendment which has been an effective tool in illegally suppressing that amendment through local regulations that are in direct conflict with the wording of the second amendment. That’s a future topic I’ll cover.
Politically speaking the use of the phrase, “stand against hate” or some other iteration isn’t just a simple call to organize Americans to reject the views of disgusting people like those in the KKK or other White Supremacist organizations. It’s an attempt to seed the ground for another series of “reasonable” restrictions. Who needs to use the “n”-word after all, you don’t really need to call someone a whore, or a fucking moron, and no one needs to call a female politician a stupid b#tch or worse, right? I mean a polite society shouldn’t find those words necessary and thus those comments should be considered criminal.
Of course, none of that is being legislated at the moment, but along with the stand against hate commentary you might have noticed that a great many institutions of higher learning are teaching their students that certain speech should and will be suppressed to keep “offensive” words and views from finding a place to be discussed in the open at a university where diverse concepts should be discussed and exposed for their lack or merit or supported for their merit.
What do you think students being taught that suppressing speech is acceptable will do once they become elected officials? Do you suspect they will all forget those lessons? More likely they will remember how effective those bans were in keeping opposing views silenced and attempt to pass laws or regulations that limit speech.
All of these concepts and actions matter, every attempted intrusion into your protected rights is another wedge the government will use to expand its control over your life and the lives of your family.
We’ve already lost the war of keeping the government small enough to fear us, it’s time to remember the reason this nation was founded in the first place which was to provide a place where dangerous freedom was the normal default condition of this society as opposed to the relative peace and safety of ruled subjects of the crown.
Shall Make No Law in absolutist terms works just fine for me.
Let me know your thoughts on the matter. If I continue the series, I’ll save the second amendment for last because it’s the most important of all the amendments as without that one, none of the others matter.
VoV
Thanks, V.
Category: Guest Post
If parents went to the trouble to teach their offspring good manners in the first place, never mind that hate speech and bullying are the same thing and both are indefensible, then we might not be having this conversation.
We’re, sadly, a generation or two removed from blaming the parents… we now have grandparents who were never taught how to be adults.
As for “hate crimes,” “fighting words,” etc. I’ve yet to understand what makes a crime more heinous because it’s committed out of principle/malice (hate) or greed. To the victim, it’s always personal.
I’m curious about why some comments await moderation… I can’t identify any trend between posts.
Are you able/willing to publish the algorithm?
Usual causes are first time commenter or too many links in your comment- clearly not the case here- you entered a typo in your email, or someone went to reply but hit the “report comment” button by mistake.
Or you could be a major PITA and an Admin or Moderator simply shit-canned your comment. Again, not a likely reason here.
Be patient, an Admin will get to to it when cleaning out the spam filter or some other mundane chore that goes on in the background here.
Sort of a long winded way to say I haven’t got a clue why you wound up in Moderator jail.
*grin*
Fair enough. Thanks for the response. I hope I just mistyped my email and haven’t pissed off any admin or moderator too much.
“…and haven’t pissed off any admin or moderator..”
There would be no doubt if you had- that’s a last resort. You’re doing fine.
“hate speech and bullying are the same thing and both are indefensible”
I disagree. One man’s “hate speech” could well be another man’s reasoned and logical discussion of whichever topic. The definition of “hate speech” for some people seems to have become “whatever I disagree with.”
I am, however, all in favor of parents teaching their offspring good manners.
Any disagreement or opposing view is now considered ‘hate speech’ by the libertards. “hate speech” is a broad term that seems to cover so-called trigger words, but it also accompanies bullying and violence, as we saw when the antifas beat up two Latinos, who were Marines, in Philadelphia last year.
“It starts when you begin to overlook good manners. Any time you quit hearing ‘Sir’ and ‘Ma’am’ the end is pretty much in sight…”
Sheriff Ed Tom Bell (No Country for Old Men_
(Excellent post, VOV…followed with a great discussion).
I will argue nuances, as often as (more often than) need be, but I vote for more of this.
Excellent thought, as usual, VoV. Shall Make No Law seems pretty straightforward to me.
Keep ’em coming, brother.
I would like to suggest that VOV open an account on Quora, but I don’t think he would last long as many of the users (several are European who think in the US you can just shoot someone which is why I have lost my desire to visit Europe. There was one who even blamed Venezuela’s woes on the US because of American sanctions even though Venezuela was beginning to crumble before they were implemented. I know one who is Australian Canadian who does not understand how the US works specifically when it comes to guns and free speech who even believes the US is violent and afraid of its own shadow because of how we view the government (he should ask what happened to the Native Americans, Jews and other untermensch under Hitler, dissenters under Stalin, those who spoke out against the war in Imperial Japan, the Chinese under Mao, those that fled Indochina and Cuba or risked their lives to escape East Germany and still today the ones that risk everything to escape North Korea. Yeah, that mistrust is completely valid as far as I’m concerned.) Heck, one of them is a full blown Marxist Stalinist who’s American (from what I hear, he is a real character, as in a clown). There are several Americans on there that don’t understand how the US works mainly when it comes to guns and would like to see them banned. There are quite a few who are Chinese as well who will attack answers that are critical towards China.) and mods are very left leaning so getting banned, having your answers collapsed because of downvoting, or getting reported is very easy (mass reporting is a surefire way to get banned even if you did nothing which I hear is a favorite tactic used by the Chinese users some of whom may be government agents).
Well thought out and stated VOV, as usual. Please keep up the series, I look forward to reading your take on the rest, if only these absolutist concepts were taught in schools once again.
Yes… keep it going VOV!
Great thoughts on the freedom of speech aspect of the First A. Might there be additional parts dealing with the rest – freedom of religion, the rights to peaceably assemble, and to petition the government?
One of the best parts of that freedom of speech thing is that while we have the right of free speech, no one is required to listen to that speech. Sure, we can “assemble,” speak our peace and all that. We have no right to get all offended if nobody pays any attention to our opinions!
“We have no right to get all offended if nobody pays any attention to our opinions!”
OH, noes!!!! OWB, you have just offended Mikey Whinestein and his followers! Doom on you!! You are not allowed to ignore them!! 🙂
Well, he does have the right to express how offended he is, but nobody has to even pretend to care about that either.
Glad I put the hot tea down before I read that!!
Still giggling!
Indeed you are correct, I could write a half dozen articles on the first alone. My concern is that if I were to put all my thoughts regarding every aspect of this amendment into a single article no one would read it because the length would be far longer than 8-10 paragraphs.
I would be happy to discuss not only speech, but assembly and religion in future articles. Perhaps once I make the rounds on those first ten if interest holds I will revisit the more popular articles with a bit more depth if there is interest.
Sounds good from here.
Something for future consideration is the argument whether assembly and petition are totally separate issues. Somewhere back in the dark ages it seems that I was taught that they are and that they, plus the other two, are THE most important among the rights that we have, and that the second protects the first. Without the first and second, the rest become irrelevant.
You have the right to free speech. However, you are also responsible for people’s reaction to it!
“peaceably to assemble”
Law and order. If we don’t enforce it then Amedment the Second will.
Hence his last sentence!
“…[D]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths.” -Madison, The Federalists No. 10
Mr. Madison must have had a crystal ball. This desire of the collectivists to control speech is a direct result of majority rule, not necessarily a countable majority, but a chosen majority. From the defacing of the Bill of Rights to the National Vote push, this Republic is fastly disappearing, and the tyrannical system that is replacing Her will be murderous.
We’ve been warned.
Shall Make No Law in absolutist terms works just fine for me. There is no such thing in society as an “absolute right.” The founding fathers knew this, believed it and even wrote about it. (Madison once wrote that rights were “absolute” only when a person never interacted with others and was not a part of society.) The sentiment can be expressed in “your rights end at my nose.” While Veritas Omnia Vincit is correct on the purpose of the First Amendment, the application is always a little more tricky. Is it a First Amendment right for a person to stand on a public sidewalk outside of your home and shout at 3 AM keeping you awake? Is it a First Amendment right for a person to disrupt a classroom to the point where the teacher cannot teach and kids cannot learn? Is it a First Amendment right for a person or group of people stand in the middle of a street or highway shouting and blocking traffic? Is it a First Amendment right for a person in a courtroom to shout at the judge from the gallery? Is it a First Amendment right for a person or group to disrupt a city council or commission meeting? Most people, including the Supreme Court, will say those examples of speech are not protected under the First Amendment. Therefore the idea of a “absolute right of free speech” goes out the window. Those examples are addressed in time, place and manner restrictions in which the government can place restrictions in order to achieve and or protect a “compelling governmental interest.” Those restrictions must be content neutral. In other words, you cannot bar speech based on what is said, only the time, place and manner in which it is said. Therefore, restrictions on speech because it “offends” someone are not legitimate “time, place and manner” restrictions. In Texas v. Johnson, the Supreme Court ruled that speech that is hateful or disagreeable is still protected speech. In the recent “Slants” case (Matal v. Tam) the Court reiterated the idea that the First Amendment protects… Read more »
Jefferson indicated that the states retained rights regarding speech within their borders, “The States… retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed.” that address the breach of peace issues, that address decorum at a public meetings that address most of what you cite as examples.
Disrupting a meeting is significantly different than expressing dissent to the current status quo at every level of government. It is not surprising that government would attempt to stifle speech and that government will be successful in doing so.
You’ve offered a defense of encroachment against absolute rights, that’s exactly the point I make in my first paragraphs. The idea that you don’t believe in absolute rights is the thought process of many of our fellow Americans so you are most likely in the majority on that topic.
I reject that notion in whole, the premise that because we have massive government encroachment today in virtually every aspect of our lives indicates we really don’t have absolute rights is exactly what leads to the government encroaching in our lives in an ever increasing and ever more restrictive manner.
Once you start down the path of excusing intrusions you find yourself in America in 2019 where you don’t even own your own body anymore. The concept of freedom and absolute rights was never a long term proposition unfortunately, the founders knew it but hoped it might last although they knew an unrestricted Federal Government was most likely inevitable.
I generally concur with your argument against the idea that there is no such thing as absolute rights.
The fact that the amendment applies only to restrictions on the powers of congress is a key element, here, and I would like to see discussions on what restrictions are acceptable limited to the state or local level as opposed to the federal. I’m a huge fan of “voting with one’s feet,” and it offers incentive for states to not grow too restrictive with their overreach.
Can you elaborate on “in America in 2019 where you don’t even own your own body anymore.”?
When you can’t do what you like with your body you are a slave. If you are free you can consume what you like when you like regardless of whether or not your Government approves. That is not the case today in the US. You are not allowed to consume some products you can grow yourself because the government believes it knows what’s best for you. That’s not freedom.
Fair enough. Beyond imbibing various substances (which I agree should be at the discretion of the individual, barring certain professions which assume a waiver of certain rights like the military or police), what about cases of suicide?
Essentially, killing oneself – intentionally or not – falls under the concept of “do[ing] what you like with your body” but also leaves a public burden in its wake – cleaning up the mess, at the very least. It is a criminal act, and I feel it should be (though I don’t believe that is anything close to a deterrent). I’m struggling with how to rationalize the idea with a generally libertarian outlook (entirely theoretical, this is not a cry for help).
The idea that you don’t believe in absolute rights is the thought process of many of our fellow Americans so you are most likely in the majority on that topic.
It’s not just me or the majority of Americans. It is the Founding Fathers who believed that as well.
The odd thing is that you quote Jefferson who is limiting speech in the quote.
Once you start down the path of excusing intrusions you find yourself in America in 2019 where you don’t even own your own body anymore.
Once again, your rights end at my nose. People cannot exist together in society where there are “absolute rights.”
The “exclusions” we have today (its the wrong term, but we’ll go with it) should not be content based. There is a difference between content of speech and TPM restrictions.
The concept of freedom and absolute rights was never a long term proposition
Sorry, but it was never a proposition at all. That’s the point. You are arguing for something that never existed.
When you can’t do what you like with your body you are a slave.
So I can crash through your door and brandish a gun? That would be me doing what I want with my body, right?
Can you masturbate in front of kids at a playground in a public part? That would be you doing what you want with your body, right?
You may not see the problem, but it illustrates the issue.
Once again your analogies are just awful….
The freedom to what I want with my body means without infringing on your right to your body or property. These are not hard concepts to get behind. And they don’t exclude absolute rights. The absolute right to consume what I want when I want and how I want is denied me in this society. It doesn’t mean I get to rob your house to feed my desire to consume a product. It never meant that and it never changes your absolute right on your property to do with your body as you will.
We are probably not understanding each other, or perhaps it’s just me. But your analogies aren’t at addressing the concept. If you were actually free you could consume LSD on your property without repercussions, if it didn’t interfere with your job and it didn’t turn you into a criminal the ability to enjoy your leisure time as you like on your property is a freedom we no longer have.
Jefferson always stated that something that neither breaks his leg nor picks his pocket is nothing that Government had any business involving itself with. That hasn’t been true in this country for a long, long time these days.
Which is exactly the point of all of this.
Ah! Well, the reason for all these laws against this and that is that people no longer teach good manners to their children, hence, those brats grow up thinking that they CAN do whatever they wish, including the activities gitarcarver indicates and get away with it.
And when they DO do it, and people are offended, then someone wants a law against it, resulting in more laws down the road that generate more and more restrictions.
My Man VOV…On Target…Fire for Effect. Does someone’s freedom of speech end where someone else’s ears begin? /s/
Keep up the rate of fire. If you melt the tubes, we’ll either replace the tubes or bring up some more 12 pounders.
The reality is that true freedom of speech means that you can say whatever you want to as long as you’re willing to accept the consequences.
The squelching of speech going on now over literally NOTHING will have consequences in the future for the squelchers.
CIVICS, 101
Post them HIGH!!
Copy & paste or recite to the youngin’s, (Richard Dreyfuss – Bring Back Civics to the Classroom)