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First Amendment and the Freedom of Speech

Notoman 20 / 419  
Oct 1, 2009   #1
Here's an essay that my group has put together for government class. There are four different writers working on it and I feel like that shows. I'd love feedback of any kind (and I do mean any kind).

Freedom of expression acts as the cornerstone of American liberty and democracy. When citizens express beliefs without fear of governmental restriction, a "marketplace of ideas" forms, and society benefits as a result of the wealth of perspectives expressed. John Peter Zenger stated, "No nation ancient or modern ever lost the liberty of freely speaking, writing, or publishing their sentiments, but forthwith lost their liberty in general..." Zenger conveys that a free society is only possible if freedom of speech is legally guarded.

In the Declaration of Independence Thomas Jefferson wrote, "governments are instituted among Man, deriving their just powers from the consent of the governed" thus defining legitimacy as recognition of the right for a government to rule by the people of its state. When a regime fails to be responsive to its citizens, it loses its legitimacy; revolution or reform inevitably occur, as evidenced by the American Revolution. When the English crown did not allow the colonies representation in government, the colonists considered the English government illegitimate and rose up against it. More recently, Iran held fraudulent elections in June 2009, declaring incumbent Mahmoud Ahmadinejad the victor by a landslide; the opposition rushed to the streets and rioted for weeks in an effort to get the supreme council to reconsider the election, as they claimed the government's legitimacy had been compromised.

If a society restricts individuals from peaceably voicing criticism towards government, violent methods for change are likely to be utilized.

In a society where people have the power to express their opinions and actively participate in the development of government, they have less reason to violently protest because they have opportunities to affect change. When citizens can express beliefs without fear of government restrictions, a "marketplace of ideas" forms, and society benefits as a result of the wealth of perspectives.

Individuals express opinions in their own way, but history proves some ways more effective than others. Joining interest groups, voting in elections, petitioning and protesting, and donating to campaigns all prove powerful means to express ideas. Interest groups provide strength in numbers. When more people, with a specific goal, stand together their idea is more widely viewable.

Voting is an opportunity for citizens to elect officials, accept or deny laws, and express their opinions about the last term's policies. Despite the power that voting holds, many Americans don't go to the polls; America routinely has the lowest turnout rate of all democratized countries, topping out at 64% in 2008.

Petitioning and protesting gets the media's attention. Doctor King's peaceful marches and demonstrations resulted in the Civil Rights Act of 1964. The First Amendment right of antiwar protesters to burn the American flag during the Vietnam War was upheld in Texas v. Johnson. In all of these cases public demonstration proved effective in expressing convictions.

Donating to campaigns allows citizens to support candidates in their election bids. However, in the recent decades the Federal Election Campaign Act of 1971, its 1974 Amendment, and the McCain-Feingold Act all place limits on this kind of expression. The September 2009 case Citizens United v. Federal Election Commission tries this specific form of expression, and the outcome of the case will alter the financial policies behind election campaigns.

Freedom of expression has limits, however, and the United States government affirms its right to restrict freedom of speech in certain cases. The most important criteria courts use to evaluate acts of expression are "time, place, and manner" restrictions, or the idea that someone cannot speak on a bullhorn outside of a hospital at 3am. Watchtower Bible and Tract Society of New York v. Village of Stratton demonstrates that if the time, place, and manner of the issue are within reason, prior approval by government is not warranted.

The government can limit "fighting words,"defined by Chief Justice Frank Murphy in Chaplinsky v. New Hampshire as "those which by their utterance inflict injury or tend to incite an immediate breach of the peace." Hate crimes, intimidation, explicit material, and defamation can be restricted, as affirmed by cases such as Black v. Virginia and FCC v. Pacifica Foundation. Compelling government interests are subject to limitation. The case United States v O'Brien affirms this and concludes that if expression interferes with a policy of significant importance to the government, limitation can be placed.

Writing, leafleting, symbolic expression, and demonstrating are protected alongside speech under the First Amendment. While government may limit the time, place, and manner of speech, it must enforce these restrictions even-handedly in a "content-neutral" manner.

EF_Sean 6 / 3,491  
Oct 1, 2009   #2
This is a write up of facts about freedom of speech, draped loosely around the overly simplistic thesis that freedom of speech = good. I generally agree with your main points, and I still found the essay unconvincing. I have to imagine that someone who disagrees with you would react much more negatively.

Freedom of expression

Why not start by defining this right off the bat? Really, how can you defend something without first deciding what it means? You mention that freedom of expression has limits at the end of the essay, but of course, if you put limits on something, it is no longer really free. You might frame your defense of freedom of speech as a valuable liberty, bearing in mind that liberty and freedom are not synonymous. You could then look at how the responsibilities inherent in the concept of liberty imply certain restrictions on speech, but that beyond those restrictions, it should be free. So, making your views available to the public is a right. Forcing other people to listen to them, by say yelling through a bullhorn at 3:00am in front of a hospital, is not. However, this restriction is "content-neutral," in as much as it applies to everyone. You are also not allowed to use speech in ways that would cause public or private harm. So, no yelling "fire" in a crowded theater unless there is actually a fire. No accusing a doctor of being incompetent without proof (libel and slander laws)either.

You might then look at how most debates over free speech are really debates on over where to draw the line between valid public discourse and harmful speech. Hate speech, for instance, often includes material that explicitly calls for violence against certain groups of people. Should it be banned? What about hate speech that denigrates certain groups of people based on race or religion, but that does not explicitly call for violence? Does such speech nonetheless create an atmosphere of violence, in which violence is more likely to occur? But doesn't this line of questioning lead to a slippery slope in which anything that could cause dissension or offense can be banned lest the debate spark violent reactions? And is it not the case that the law holds each person responsible for his or her own actions? So, though speech be meant to incite violence, or even merely create an atmosphere conducive to it, yet it is not the same as an act of violence, and the expression of it should not therefore be a crime. If someone commit an act of violence as a result of speech, then let that person be punished. And so on. All of which leads to the question of where the line should be drawn, and what principles should be used to determine this.

Put another way, it's much like the debate over gun control, which really could be called the debate over weapon control. Clearly, nuclear weapons, biological and chemical agents, and the like, should not be available to anyone who wants them. Just as clearly, banning knives would be stupid. Guns fall somewhere in the middle. They are powerful enough to be very dangerous, and have little use beyond killing. However, a reasonable case can be made that an armed populace is the best defense against the possibility of tyranny, and that guns are common enough among the criminal element that they are necessary for those truly interested in self-defense. Some forms of speech clearly deserve to be banned, as mentioned above. Banning other forms of speech is clearly tyrannical. But its the stuff in-between that causes all the fuss.

Finally, your examples, while very topical, seem to have been chosen at random. If you want a topical example that is more on topic, look at the debate over the anti-Obama protests that have been taking place. Here are some links:

nytimes.com/2009/09/30/opinion/30friedman.html?_r=1&scp=8&sq =Obama&st=Search


The first one advocates throwing someone in jail for putting an opinion poll on facebook. Not some nutcase, either, but a venerable New York Times columnist, who is in fact cheering on an actual Secret Service investigation. The second one points out that the left doesn't seem to mind overlooking violent speech, and even violent acts, when the protesters are on their side.

Also, read John Stuart Mill. utilitarianism.com/ol/two.html

His defense of freedom of speech is excellent, and worth reading and citing.

Sorry, this post is getting a bit long. Hope some of this helps you.

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