The first amendment

The first amendment

The first amendment was passed on September 25, 1789, by Congress and was later ratified two years later on December 15. This irreversible amendment defines that ” no Congress shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.”  This law generally states that courts cannot hold individuals civilly liable or jail them depending on their speeches, whether spoken or written, unless in some exclusive settings. This amendment has four distinct clauses. These include the establishment clause, clause to exercise it freely, free speech right, and finally, free petition and assembly. Among these clauses, free speech is a widely misunderstood clause. Misunderstood would be so ambiguous since most people misuse this amendment after an ignorant and wrongful interpretation. This paper clarifies the First Amendment while giving corroborative evidence on how the exceptions within this clause have not being interpreted well by the Supreme Court to the American citizen.

However, the freedom of speech and press has some exceptions, in which speech is considered to be less demanding. The first one involves when some speech types are of low first amendment value. One of those cases is True threats, and it involves murder threats whenever an individual does not meet some obligation. A perfect example of a genuine threat is the 1969 case between Watts v. United. The following exception is defamation. Defamation involves making false statements to destroy one’s reputation. Such speeches are punishable by the law, particularly when the lies are told deliberately. Under this first exception, we also have obscenity. This obscenity includes child pornography, which is punishable by law. This first exception also includes the use of face-to-face fighting words such as personal insults that are meant to trigger a fight. However, this exception excludes political views that are offensive and might lead to violence. The Supreme Court can further limit one’s speech in “less demanding” situations when the person making the speech works for or with the federal authority. Any government employee that is aware of any classified information is prohibited by this exception to disclose the information. Lastly, the Supreme Court can limit one’s right to free speech under the “less demanding” situation when it does so regardless of the content of the information. This restriction is more like neutralizing the content in one’s speech to make the speech reasonable.

The “clear and present danger” acclamation was invented in Schenck v. U.S. case of (1919). This acclamation was a test whether the government could constitutionally restrict someone’s free speech right covered under the First Amendment. Charles Schenck was convicted after distributing provocative flyers to World War 1 draftees. In his flyers, he asserted that the draft was an involuntary service and that the first world war was only propelled by capitalism and encouraged the draftees to appeal against the 13th amendment. Schenck was convicted for going against the Espionage Act by causing national insubordination during wartime (McBride, A. 2006). He filed a petition that the court decision had breached his freedom of speech, but Justice Oliver H. of the Supreme Court upheld his charges, claiming that the context in which the words were used caused “clear and present danger” and therefore the government had every right to prevent it from occurring. The six months jail term that Schenck faced resulted in a series of balancing tests, with the Supreme Court gauging the limits of free speech. Besides, in deciding Abrams v. U.S., the “clear and present danger” ovation was used in less than a year later. Abram and his compatriots’ convictions were upheld since the Supreme Court argued that they had used a provocative language that encouraged resistance.

Tinker v Des Moines (1969) involved the suspension of three students from a public school in Iowa. These students, Mary Beth Baker, Christopher Eckhardt, and Baker’s brother, John, peacefully protested the war in Vietnam by wearing black armbands in their government-sponsored schools. The school official got wind of this scenario and forced the students to remove their armbands. The students were later suspended after they failed to remove the armbands until the protest was ended. The families raised a complaint that the institution had breached their freedom of speech of these students, which reached the Supreme Court in 1969.  However, the lower courts argued that the suspension was necessary for the school to maintain order and discipline in the public school. When the Supreme Court heard the case, the Court argued that the protest made by the Tinkers and their friend did not disrupt the regular learning session of the school. Besides, as much as the protest was not in verbal or written form, it was a symbolic speech; symbolic speeches are protected in the First Amendment. The students won the case 7-2 major win.

Justice Abe Fortas, who overruled the decision made by the school, argued that the school administration did not have total authority over students. He mentioned that as much The Tinkers were students, they were still persons under the constitution, and their civil rights had to upheld (Lannaci, N. 2017). Justice Fortas argued that the school’s desire to maintain order in school did not override the First Amendment right of the students. He overturned the suspension since the students were entitled to free speech, without anyone holding them back. The decision made by the Supreme Court was very significant in broadening the First Amendment. In this case, the Court declared that individual liberty was far much crucial than government units, like public schools’ quest to maintain discipline. The other bit that the Court clarified was that minors, in this case, teenagers, rights had to be upheld. Secondly, this decision ensured that the First Amendment also protected symbolic speech. These symbolic speeches included a variety of non-verbal activities like wearing protesting t-shirts, marching, or even burning a flag.

Fifty years later, the Supreme Court decision of Shenck vs. U.S. (1919), which based its argument on “clear and present danger” was substituted with “ imminent lawless action” when Clarence Brandenburg had to face Ohio State in 1969. Courts have not always upheld the right to free speech and press. Clarence Brandenburg, while addressing a Ku Klux Klan rally in Hamilton County, made anti-black and anti-Semitic statements and even mentioned that he would revenge if the government did not stop suppressing the white race. He also made threats of marching on Washington D.C. over the independence day. He was convicted to serve 1 to 10 years in prison and fined because he had violated the syndicalism law of Ohio. However, his conviction was overturned by the Supreme Court with the argument that the First Amendment of Brandenburg had been violated. Even though the Court of Ohio was convinced the decision had no constitutional questions, the Supreme Court issued new tests for speech rights (Walker, J. n.d.). The Court argued that advocacy was only punishable if it was directed at producing or inciting imminent lawless actions only or had a possibility of leading to such actions. This decision by the Court led to the automatic overruling of the Whitney v. California of 1927, which involved a woman belonging to a syndicalist organization, who had violated California law. However, this decision did not overrule Dennis v U.S. (1951) case. The Court still argued that the clear and danger acclamation could still be used, then, in determining the gravity of evil. However, after the Court decision on Brandenburg’s case, both Justices H. L. Black and W. O. Douglas, wrote separate brief concurrence supporting the opinion of the Court not to use the “clear and present danger” clause when interpreting the right to free speech.

The First Amendment debate has not been fully settled, just like courts have wrestled it in the past. Currently, there is a question of whether public officials are protected under the First Amendment when discussing official businesses on social media platforms. That is not all; the advancement in technology has led to unlimited internet access and use, therefore making distribution of illegally obscene materials possible. The recent First Amendment case came up when Twitter users felt that their rights had been violated when President Trump blocked them because of their views. The debate on how free Americans should be when it comes to speech, and the press is still at stake and need further enlightenment and clarification.

References

Lannaci, N. (2017, February 24). Tinker v. Des Moines: Protecting student free speech – National Constitution Center. Retrieved December 1, 2019, from https://constitutioncenter.org/blog/tinker-v-des-moines-protecting-student-free-speech

McBride, A. (2006, December). The Supreme Court . Law, Power & Personality . Famous Dissents . Abrams v. United States (1919) | PBS. Retrieved December 1, 2019, from https://www.thirteen.org/wnet/supremecourt/personality/landmark_abrams.html

Walker, J. L. (n.d.). Brandenburg v. Ohio. Retrieved December 1, 2019, from https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio