Exploring Constitutional Conflicts

Introduction to the Free Speech Clause
The issues: What events influenced the thinking of the framers about the right of free speech? What is the original understanding of the First Amendment?
What values does the Free Speech Clause serve? 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.

Introduction
Although First Amendment jurisprudence is almost entirely a creation that began in the 20th century, common law protection for free speech began much earlier, in the 18th and 19th centuries.

The trial of printer John Peter Zenger in 1735 was a landmark in the development of common law protection for free speech. In the Zenger case, a New York jury returned a verdict of "not guilty" on a charge of seditious libel--in contrast to the practice in England where juries were permitted only to decide whether the defendant printed the allegedly libelous words. As a result of the precedent set in the Zenger case, and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable.

In England, meanwhile, thinking about free speech issues was strongly influenced by William Blackstone who, in his Commenataries on the Laws of England (1769), wrote of liberty of press as consisting "in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

Blackstone's view of no prior restraints formed the bare minimum of protection that James Madison intended to protect when he, as a congressman from Virginia in the first House of Representatives, drafted the Bill of Rights. Of course, most observers believe that Madison meant to protect a great deal more speech that Blackstone might have been inclined to protect.

Madison's original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech. One proposed amendment said "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable." The other proposed amendment of Madison read: "No state shall violate the equal rights of conscience, or of the press." Congress, however, did not support Madison's efforts to apply free speech protections against the states, even though Madison called that amendment the "most valuable amendment on the whole list." (It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.)


James Madison, drafter of the First Amendment.
Just seven years after adoption of the First Amendment, Congress passed the Sedition Act of 1798. The Act was enforced against Republican papers in an effort to keep Jefferson's party from defeating the Federalists in the 1800 election. Jefferson won anyway, and the Sedition Act expired by its own terms in 1801, without ever being tested by the Supreme Court. The Act did, however, touch off a lively debate on free speech issues and prompted both Madison and Jefferson to write discourses on freedom of speech and the press.

Although a few First Amendment cases, often involving obscenity, were decided by the federal courts in the 1800s, it was not until World War I that the Supreme Court really began to develop the jurisprudence that will be our study.

Questions
1. If a referendum were held today on whether to adopt the First Amendment, do you think it would pass?
2. Polls show that most Americans support free speech in theory, but when they're asked more specific questions such as "Should Americans be free to advocate communism?" Most Americans are far less willing to support free speech values. How to you explain this?
3. Which of the three general approaches to First Amendment analysis is best? Why? What are the advantages and disadvantages of each approach?
4. Which of the values served by the Free Speech Clause to you consider to be the most important? Why?
5. What are some of the costs of protecting free speech? Which are the most significant costs in your opinion?

The burning of John Peter Zenger's The New York Weekly Journal. Zenger was tried in 1735 on charges of seditious libel, but what acquitted by a jury in what is a landmark in free speech law. For information on the Zenger case see: ZENGER TRIAL



Three Possible Approaches to
First Amendment Analysis
1. The Absolutist Approach
The Absolutist Approach is most often associated with Justice Black, who held that the First Amendment meant exactly what it says: that Congress shall make NO law abridging the freedom of speech. Under this approach, the only question is whether the action in conduct is truly "speech" (and therefore protected) or "conduct" (and therefore subject to reasonable governmental regulation. Even absolutists such as Justice Black recognized that words might be so closely connected with producing a specific action (such as entering into a contract with a hitman or yelling "Fire!" in a crowded theater) as to be unprotected.
2. The Categorical Approach
The Categorical Approach would protect or not protect speech based on the label that is attached to the speech in question. Certain categories of speech are seen (such as, for example, obscenity or "fighting words" or--at one time--commercial speech) as falling entirely outside of First Amendment protection, whereas most other categories of speech are either highly protected or protected absolutely.
3. The Balancing Approach
The Balancing Approach sees the Absolutist Approach as impracticable and the Categorical Approach as artificial. Balancers believe that in every case courts should weigh the individual's interest in free expression against the government's interest in restricting the speech in question. Most balancers hold that the presumption should be in favor of free expression--that there is a thumb on that side of the scale--which can only be overcome with a showing of an especially strong governmental interest. (Some commentators have distinguished between "definitional" and "categorical" balancers. The definitional balancers favor the sort of ad hoc balancing in which every individual factual difference of a particular defendant could affect the balancing, whereas the categorical balancers look at the interests of speakers in the category that the includes the defendant.)

Values Served by the Protecting of Free Speech
1. The Discovery of Truth
This value was first suggested by Milton, who first suggested that when truth and falsehood are allowed to freely grapple, truth will win out.
2. Facilitating Participation by Citizens in Political Decision-Making
It has been suggested that citizens will not make wise and informed choices in elections if candidates and proponents of certain policies are restricted in their ability to communicate positions.
3. Creating a More Adaptable and Stable Community (The "Safety Valve" Function)
It is suggested that a society in which angry and alienated citizens are allowed to speak their mind--"vent"--will be more stable, as people will be less likely to resort to violence. It has also been pointed out that allowing the alienated and discontented to speak freely enables government to better monitor potentially dangerous groups who would otherwise act more clandestinely.
4. Assuring Individual Self-Fulfillment
Free speech enables individuals to express themselves, create and identity--and, in the process perhaps, find kindred spirits. Freedom of speech thus becomes an aspect of human dignity.
5. Checking Abuse of Governmental Power
As Watergate, Irangate, Clintongate (and all the other "gates") demonstrate, freedom of the press enables citizens to learn about abuses of power--and then do something about the abuse at the ballot box, if they feel so moved.
6. Promoting Tolerance
It has been argued that freedom of speech, especially through our practice of extending protection to speech that we find hateful or personally upsetting, teaches us to become more tolerant in other aspects of life--and that a more tolerant society is a better society.
7. Creating a More Robust and Interesting Community
A community in which free speech is valued and protected is likely to be a more energized, creative society as its citizens actively fulfill themselves in many diverse and interesting ways.

Links
Institute for First Amendment Studies
A Panoramic History of the First Amendment (Ostrowski)
American Library Association
Freedom Forum Site

Exploring First Amendment Law Homepage

By Oleg Shchedrov
1 hour, 1 minute ago

SOCHI, Russia (Reuters) - Washington demanded on Friday that Russia pull its troops out of Georgia "now," but Moscow said it would be another 10 days before the bulk of its force left Georgian soil.   Read More »

By ANDREW DeMILLO, Associated Press Writer 5 minutes ago LITTLE ROCK, Ark. - A man barged into the Arkansas Democratic headquarters and opened fire Wednesday, fatally shooting the state party chairman before speeding off in his pickup. Police later shot and killed the suspect after a 30-mile chase. Police said they don't know the motive for the 51-year-old suspect, whose name has not been released. However, they said moments after the shooting, he pointed a handgun at the building manager at the nearby the Arkansas Baptist headquarters. He told the manager "I lost my job," said Dan Jordan, a Baptist convention official. Chairman Bill Gwatney died four hour after the shooting. The 48-year-old former state senator had been planning to travel to the Democratic National Convention later this month as a Hillary Clinton superdelegate. Clinton and her husband, former President Bill Clinton, issued a statement calling Gwatney "not only a strong chairman of Arkansas' Democratic Party, but he is also a cherished friend and confidante." Witnesses said the gunman entered the party offices shortly before noon and said he wanted to see Gwatney. "He said he was interested in volunteering, but that was obviously a lie," said 17-year-old party volunteer Sam Higginbotham. He said the man then pushed past employees to reach the chairman's office, where he fired three times. After the suspect avoided spike strips and a roadblock along U.S. 167 near Sheridan, police rammed his car, spinning it, said Grant County Sheriff Lance Huey. He got out of his truck and began shooting, and state police and sheriff's deputies fired back, striking him several times, he said. The state Capitol was locked down for about an hour until police got word the gunman had been captured, said Arkansas State Capitol police Sgt. Charlie Brice. Gov. Mike Beebe, a Democrat who served with Gwatney in the state Senate, had been on a flight to Springdale in northwestern Arkansas. He returned to Little Rock and joined the vigil at University Hospital after what he called a "shocking and senseless attack." Gwatney had been Beebe's finance chairman during the governor's 2006 campaign. "Arkansas has lost a great son, and I have lost a great friend. There is deep pain in Arkansas tonight because of the sheer number of people who knew, respected and loved Bill Gwatney," Beebe said. State Rep. Janet Johnson started to cry when she talked about Gwatney. "This is like something you would see in New York or Pennsylvania or California, but not here," Johnson said. Karen Ray, executive director of the Republican Party of Arkansas, sent her workers home early "out of an abundance of caution." "Our hearts go out to everyone at the Democratic headquarters. What a tragedy," Ray said. "This is just a very upsetting, troubling and scary thing for our staff as well." An impromptu vigil at University Hospital drew Gov. Mike Beebe and a number of state legislators who had worked with Gwatney. House Majority Leader Steve Harrelson was at the state Capitol for a news conference on crime and that he didn't know of anyone who would want to harm Gwatney. "You never think of something like this happening here in Arkansas," Harrelson said. Sarah Lee, a sales clerk at a flower shop across street from the party headquarters, said that around noon Gwatney's secretary ran into the shop and asked someone to call 911. Lee said the secretary told her the man had come into the party's office and asked to speak with Gwatney. When the secretary said she wouldn't allow him to meet with Gwatney, the man went into his office and shot him, Lee said. Last November, a distraught man wearing what appeared to be a bomb walked into a Clinton campaign office in New Hampshire and demanded to speak to the candidate about access to mental health care. A hostage drama dragged on for nearly six hours until he peacefully surrendered. The confrontation brought Clinton's campaign to a standstill just five weeks before the New Hampshire primary. Security for her was increased as a precaution. She said she did not know the suspect.

This is an inetresting opinion article from the Governor of Tennesee.   Read More »

Well, this is a start.   Read More »

I probably will regret this, and I am sure my email act will, but I feel it necessary. I am not dong this just for me but for my whole family and friends that feel like we are lost at this point. I have been a democrat all my life (51 now). I have worked hard for Hillary but now I find myself in the position of either voting for someone I do not trust or believe in, or voting for a republican for the first time, or not voting at all. So, I am gong to do the stupid thing. I am tired of all the media telling us what to do. I want to talk to people, know the opinions of people who have been affected by this primary season, or that have worked for one of the candidates. What I would like is the following: Why should I vote for Obama? Don't give me the because you are a democrat. Give me some good reasons to vote for him. If you voted for Hillary and switched to Obama or vs versa, then tell me what helped you make that decision. And, for those Clinton supporters...same thing. If you voted for Hillary and now will vote for Obama, please tell me why. If you refuse to vote for Obama and want me to vote for McCain or stay home, then tell me some reasons I should. Thank you for this help. You can email me at getgreatbiz@excite.com Depending on how many replies I have to this and if I have other questions, I will respond to your email.

DEFINING DEMOCRACY Government of the People Democracy may be a word familiar to most, but it is a concept still misunderstood and misused in a time when totalitarian regimes and military dictatorships alike have attempted to claim popular support by pinning democratic labels upon themselves. Yet the power of the democratic idea has also evoked some of history's most profound and moving expressions of human will and intellect: from Pericles in ancient Athens to Vaclav Havel in the modern Czech Republic, from Thomas Jefferson's Declaration of Independence in 1776 to Andrei Sakharov's last speeches in 1989. In the dictionary definition, democracy "is government by the people in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system." In the phrase of Abraham Lincoln, democracy is a government "of the people, by the people, and for the people." Freedom and democracy are often used interchangeably, but the two are not synonymous. Democracy is indeed a set of ideas and principles about freedom, but it also consists of a set of practices and procedures that have been molded through a long, often tortuous history. In short, democracy is the institutionalization of freedom. For this reason, it is possible to identify the time-tested fundamentals of constitutional government, human rights, and equality before the law that any society must possess to be properly called democratic. Democracies fall into two basic categories, direct and representative. In a direct democracy, all citizens, without the intermediary of elected or appointed officials, can participate in making public decisions. Such a system is clearly only practical with relatively small numbers of people--in a community organization or tribal council, for example, or the local unit of a labor union, where members can meet in a single room to discuss issues and arrive at decisions by consensus or majority vote. Ancient Athens, the world's first democracy, managed to practice direct democracy with an assembly that may have numbered as many as 5,000 to 6,000 persons--perhaps the maximum number that can physically gather in one place and practice direct democracy. Modern society, with its size and complexity, offers few opportunities for direct democracy. Even in the northeastern United States, where the New England town meeting is a hallowed tradition, most communities have grown too large for all the residents to gather in a single location and vote directly on issues that affect their lives. Today, the most common form of democracy, whether for a town of 50,000 or nations of 50 million, is representative democracy, in which citizens elect officials to make political decisions, formulate laws, and administer programs for the public good. In the name of the people, such officials can deliberate on complex public issues in a thoughtful and systematic manner that requires an investment of time and energy that is often impractical for the vast majority of private citizens. How such officials are elected can vary enormously. On the national level, for example, legislators can be chosen from districts that each elect a single representative. Alternatively, under a system of proportional representation, each political party is represented in the legislature according to its percentage of the total vote nationwide. Provincial and local elections can mirror these national models, or choose their representatives more informally through group consensus instead of elections. Whatever the method used, public officials in a representative democracy hold office in the name of the people and remain accountable to the people for their actions. Majority Rule and Minority Rights All democracies are systems in which citizens freely make political decisions by majority rule. But rule by the majority is not necessarily democratic: No one, for example, would call a system fair or just that permitted 51 percent of the population to oppress the remaining 49 percent in the name of the majority. In a democratic society, majority rule must be coupled with guarantees of individual human rights that, in turn, serve to protect the rights of minorities--whether ethnic, religious, or political, or simply the losers in the debate over a piece of controversial legislation. The rights of minorities do not depend upon the goodwill of the majority and cannot be eliminated by majority vote. The rights of minorities are protected because democratic laws and institutions protect the rights of all citizens. Diane Ravitch, scholar, author, and a former assistant U.S. secretary of education, wrote in a paper for an educational seminar in Poland: "When a representative democracy operates in accordance with a constitution that limits the powers of the government and guarantees fundamental rights to all citizens, this form of government is a constitutional democracy. In such a society, the majority rules, and the rights of minorities are protected by law and through the institutionalization of law." These elements define the fundamental elements of all modern democracies, no matter how varied in history, culture, and economy. Despite their enormous differences as nations and societies, the essential elements of constitutional government--majority rule coupled with individual and minority rights, and the rule of law--can be found in Canada and Costa Rica, France and Botswana, Japan and India. Democratic Society Democracy is more than a set of constitutional rules and procedures that determine how a government functions. In a democracy, government is only one element coexisting in a social fabric of many and varied institutions, political parties, organizations, and associations. This diversity is called pluralism, and it assumes that the many organized groups and institutions in a democratic society do not depend upon government for their existence, legitimacy, or authority. Thousands of private organizations operate in a democratic society, some local, some national. Many of them serve a mediating role between individuals and the complex social and governmental institutions of which they are a part, filling roles not given to the government and offering individuals opportunities to exercise their rights and responsibilities as citizens of a democracy. These groups represent the interests of their members in a variety of ways--by supporting candidates for public office, debating issues, and trying to influence policy decisions. Through such groups, individuals have an avenue for meaningful participation both in government and in their own communities. The examples are many and varied: charitable organizations and churches, environmental and neighborhood groups, business associations and labor unions. In an authoritarian society, virtually all such organizations would be controlled, licensed, watched, or otherwise accountable to the government. In a democracy, the powers of the government are, by law, clearly defined and sharply limited. As a result, private organizations are free of government control; on the contrary, many of them lobby the government and seek to hold it accountable for its actions. Other groups, concerned with the arts, the practice of religious faith, scholarly research, or other interests, may choose to have little or no contact with the government at all. In this busy private realm of democratic society, citizens can explore the possibilities of freedom and the responsibilities of self-government--unpressured by the potentially heavy hand of the state. THE PILLARS OF DEMOCRACY Sovereignty of the people. Government based upon consent of the governed. Majority rule. Minority rights. Guarantee of basic human rights. Free and fair elections. Equality before the law. Due process of law. Constitutional limits on government. Social, economic, and political pluralism. Values of tolerance, pragmatism, cooperation, and compromise.

MSNBC just said that Hillary Clinton has announced that she is not seeking the VP.

Lunch is almost ready, place your order now,

http://www.politico.com/news/stories/0108/7888.html

or

http://www.politico.com/news/stories/0108/7888_Page2.html

or

post your favorite

ARTIST: Buffalo Springfield
TITLE: For What It's Worth
Lyrics and Chords


There's something happening here
What it is ain't exactly clear
There's a man with a gun over there
Telling me I got to beware
I think it's time we stop, children, what's that sound
Everybody look what's going down

There's battle lines being drawn
Nobody's right if everybody's wrong
Young people speaking their minds
Getting so much resistance from behind
I think it's time we stop, hey, what's that sound
Everybody look what's going down

What a field-day for the heat
A thousand people in the street
Singing songs and carrying signs
Mostly say, hooray for our side
It's time we stop, hey, what's that sound
Everybody look what's going down

Paranoia strikes deep
Into your life it will creep
It starts when you're always afraid
You step out of line, the man come and take you away

We better stop, hey, what's that sound
Everybody look what's going down
Stop, hey, what's that sound
Everybody look what's going down
Stop, now, what's that sound
Everybody look what's going down
Stop, children, what's that sound
Everybody look what's going down

 

COUNT ALL THE VOTES

For the west coast

There is Something Happening Here

Why are you all Scared?

Must be Senator Clinton has a large closing surge in the nomination. For the ones who think it is over, then Why, bother with posting negative articles and implying innuendoes?

Have I missed something here?

Are counting the votes scaring you or just the results? To those of you who have decreed over the past two months for Senator Clinton to get out, I say you are scared of losing the nomination and not the General Election.

To those who continue party divisiveness, I say 17 Million plus voters are at stake.

FYI It is not over.

It is Not Over We still do not have a nominee.

Senator Hillary Rodham Clinton 08 The Inclusive Choice 

Paranoid strikes deep, into your life it will creep

Everybody look what's going down ...

There is Something Happening Here

Why are you all Scared?

Must be Senator Clinton has a large closing surge in the nomination. For the ones who think it is over, then Why, bother with posting negative articles and implying innuendoes?

Have I missed something here?

Are counting the votes scaring you or just the results? To those of you who have decreed over the past two months for Senator Clinton to get out, I say you are scared of losing the nomination and not the General Election.

To those who continue party divisiveness, I say 17 Million plus voters are at stake.

FYI It is not over.

It is Not Over We still do not have a nominee.

Senator Hillary Rodham Clinton 08 The Inclusive Choice 

Paranoid strikes deep, into your life it will creep

Everybody look what's going down ...

 

Women's suffragists parade down Fifth Avenue, New York, October 1917, carrying the signatures of a million women

 

 On March 3, 1913, over 5,000 suffragists paraded in Washington, D.C. When Wells tried to line up with her Illinois sisters, she was asked to go to the end of the line so as not to offend and alienate the southern women marchers. Wells feigned agreement, but much to the shock of Trout, she joined the Illinois delegation once the parade started. As the suffragists started down Pennsylvania Avenue, the crowd became abusive and started to close in, knocking the marchers around with hostility. With local police doing little to keep control, the cavalry was called in as 100 women were hospitalized. Many suffragists concluded that public protests might be the quickest route to universal franchise.

 

 

Why are you all Scared?

Must be Senator Clinton has a large closing surge in the nomination. For the ones who think it is over, then Why, bother with posting negative articles and implying innuendoes? Have I missed something here? Are counting the votes scaring you or just the results? To those of you who have decreed over the past two months for Senator Clinton to get out, I say you are scared of losing the nomination and not the General Election. To those who continue party divisiveness, I say 17 Million plus voters are at stake. FYI It is not over.

It is Not Over

We still do not have a nominee.

Senator Hillary Rodham Clinton 08

The Inclusive Choice

Electable in the General Election

Experienced

Beloved by the International Community

The People's Choice

Paranoid strikes deep,

into your life it will creep

Everybody look what's going down ...

ALT="br /
Hillary Railroaded" WIDTH=198 HEIGHT=309> Mark Halperin and Time Magazine continue with their rampant sexist attitude towards Senator Clinton in this photo: If Time Magazine would have displayed a photo with Senator Obama tied up to railroad tracks all fury would have broken loose in the media. But, apparently it is o.k. by Time Magazine’s standards to doctor an image of Senator Clinton with her hands and feet bound. The only way to stop this mysognist and harmful messagin is to tell Time Magazine that this is unacceptable to the American people. American journalism should mean something more than the degradation of women.

Why I Support the Florida Vote As Is (Protest the Current Ruling by the DNC) Both candidates were on the ballot. No one campaigned in the state. (Except O ads on tv might need a ruling here Violation?) It was not the Voters fault. The republicans pushed the date up. Is this the punitive party? Who do you punish? FL was already punished in the 2000 election. Do you really want to anger 17 Million plus Hillary Supporters? Hillary Rodham Clinton 08 The Inclusive Choice

Protest the Current DNC Ruling on the Michigan Vote

Why should the Michigan voters not count?

Why not a re-vote?

Who really stopped the re-vote?

Are we the Punitive Party?

Do we really want to anger 17 Million plus Hillary Supporters?

Protest for FL and MI

Count Every Vote Rally in D.C. For FL and MI May 31st, 2008

Be there, Make History.

Senator Hillary Rodham Clinton 08

The Inclusive Choice

Electable in the General Election

Experienced

Beloved by the International Community

The People's Choice

This was in the opinion section of USA Today, and I think it amkes a valid point