| Post 3: The First Amendment Needs to be Fixed!Post 3: The First Amendment Needs to be Fixed!
This post comes from the fact that I stayed up half the night yesterday thinking about this topic. Yes, so I promise to write about the cons and pros on the themes on Xanga, but I decided to write this topic instead.
The First Amendment
"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."
-- Amendment One, Bill of Rights, United States Constitution
For those who need back ground on what this is all about:
The historical significance of the First Amendment is the idea of protection against governmental interference with the freedom of speech, press assembly, and religion. This helped separate the church from the state, meaning there is no official Church of America. The ideas of government interference on such freedom (of speech, press assembly, and religion) can be traced back upon the enlightenment idea that people are born with natural rights that cannot be taken away, this philosophy came from the John Locke, these rights would be right to life, liberty and property. Thomas Jefferson took this idea, and changed it to life, liberty, and the pursuit of happiness in the Declaration of Independence.
Introduction
Thomas
Jefferson once claimed, “A democracy cannot be both ignorant and free.”
This was the commonly held attitude of the “enlightened” men who
settled the United States. The framers of the Constitution believed
that if the new U.S. citizens failed to take care to share information
completely among themselves, they would be worse off than they had been
as subjects of the British monarchy they fled.
The
new American settlers brought with them a desire for democracy and
openness. They left behind a history of tyranny and official control of
information. Using this experience as their guide, the constitutional
fathers wrote into their new Constitution a Bill of Rights, which
contained the First Amendment.
The Bill of
Rights consists of the first ten amendments, which contain procedural
and substantive guarantees of individual liberties and limits upon
government control and intervention.
The
First Amendment, perhaps the best known of these freedoms and
protections, prohibits the establishment of a state-supported church,
requires the separation of church and state, and guarantees freedom of
worship, of speech and the press, the rights of peaceable assembly,
association and petition.
While some Supreme
Court justices have declared that First Amendment freedoms are absolute
or occupy a preferred position, the Court has routinely held they may
be limited so as to protect the rights of others (e.g. libel, privacy),
or to guard against subversion of the government and the spreading of
dissension in wartime. Thus, the Court’s majority has remained firm –
the First Amendment rights are not absolute.
Only
two Supreme Court justices, Justice Hugo Black and Justice William O.
Douglas, insisted the First Amendment rights are absolute and their
dissenting opinions fell to the wayside. Most court cases involving the
First Amendment involve weighing two concerns: public vs. private.
Also, the Supreme Court has often defined certain speech, also known as
“at risk speech,” as being unprotected by the First Amendment:
- Burning draft cards to protest draft – prohibited because of superior governmental interest.
- Words likely to incite imminent violence, termed “fighting words.”
- Words immediately jeopardizing national security.
- Newspaper publishing false and defamatory material – libel.
Freedom
of speech and expression is not a luxury of democracy, but it should be
recognized as a necessity. In order for a democratic form of government
to function and continue to exist, it must have free expression and
educated criticism. Most of the development of the United States’ free
society has come about because of public debate and disclosure, in both
oratory and written form.
It has also been
continuously recognized by the leaders of the United States that the
minority view can also hold truths. This is how our nation was able to
sever ties to Great Britain, by a minority group speaking out against
the tyranny.
Development
The
First Amendment has endured more than 200 years, without substantial
alterations and negation. This limited history of change should stand
as a testament of the First Amendment’s importance and role in America,
presently and throughout our history. There are rare instances in
American history when the First Amendment has been set aside. The most
notable periods of government censorship, which are few, involve
sedition acts and wartime censorship.
The
Sedition Act of 1798, signed by President John Adams, gave federal
authorities the right to prosecute any individual suspected of plotting
against the federal government. This Act also allowed a provision that
made it a criminal act to speak or write maliciously of the president
or of Congress, which was defined as “with the intent to defame” or to
bring either “into contempt or disrepute.”
The
Sedition Act of 1798 effectively stifled legitimate political
discussion, and was held in criticism for this reason. Critics of the
government either bowed to the pressure of this act or were punished.
The act expired in 1800 and was not renewed. Congress had voted that
reparations to its victims be instituted, based on the opinion that if
they were adhering to the beliefs of the Founding Fathers such an act
was inconsistent with the First Amendment.
During
the period of slavery, 1600-1800s, many slave states defied the First
Amendment and censored abolitionists’ pamphlets, writings and speeches.
The states’ defense of ignoring the protections of the First Amendment
settled on the vague wording of this amendment compared to that in the
other Bill of Rights Amendments.
The First
Amendment states “Congress shall make no law…” which meant the federal
government according to this interpretation. To clear up this
disagreement, Congress ratified in 1865 the Fourteenth Amendment, which
made the First Amendment binding upon government below the federal
level.
The Fourteenth Amendment defined
citizenship and made constitutional adjustments to post-Civil War
conditions. Most significantly, the Fourteenth Amendment guaranteed due
process of law and equal protection of the laws against infringement by
the states. Therefore, the states could no longer impose their own
censorship and hindrance of speech standards on the protections
guaranteed by the First Amendment.
Wartime
censorship has been used to protect national security interests. The
words “clear and present danger” are the “yardstick” by which
censorship rights of government as opposed to the free-speech rights of
individuals are measured in such times of crisis. President Abraham
Lincoln first used this type of censorship during the Civil War. First
Amendment freedoms and protections were secondary, according to
President Lincoln, to the preservation of the nation. Lincoln believed
in “the ends justified the means” argument in preserving all the laws.
The Civil War alterations to the protections guaranteed under the First
Amendment consisted of opening mail and censoring anti-Union newspapers.
Wartime
censorship was also employed during World War I. Another Sedition Act,
passed in 1918, considered speaking “disloyal or abusive language”
about the flag, Constitution and government a criminal act.
Passage
of the Espionage Act of 1917, which made it a crime to write or say
anything that might encourage disloyalty or interfere with drafting of
servicemen, also hindered First Amendment protections. “Subversive”
books were taken off the shelves in stores and libraries. A Federal
Censorship Board was assigned to regulate such activities. Again, the
argument of protecting national security interests was maintained.
During
the 1930s, the Federal Communications Commission began its policy of
requiring broadcast station owners who engage in airing editorial
opinions on a controversial issue to offer time on the air to any
opposing opinion. The FCC argued that it was not violating First
Amendment rights of broadcasters because the airwaves are a limited
resource and belong to the public. Thus the right of public access to
the airwaves must be protected. This practice, known as the “Fairness
Doctrine,” was scrapped in 1987.
Similar
activities took place during World War II. It was considered an illegal
activity to advocate violent overthrow of the government at any level,
or to say, do or write anything that might encourage insubordination
among the military or to encourage disloyalty.
After
World War II, censorship became a hotbed during what is commonly
referred to as the “McCarthy Era” and “The Red Scare.” The target was
Communism. Writings, speeches and activities were scrutinized for
communist propaganda and leftist advocacy. Eventually, such censoring
activities were done away with and the First Amendment was restored to
its original legislative intent.
top
Current Issues
Today,
the First Amendment freedoms include various areas: freedom of
information, government access and citizens’ right to know and right to
privacy. Furthermore, according to James Russell Wiggins (former editor
of the Washington Post), the “right to know” consists of five separate
parts:
- Freedom from prior restraint.
- Freedom from punitive censorship.
- Right to collect information.
- Right to have access to the media and materials necessary for collecting that information.
- Right
to distribute information and to make it directly available to all
members of the public without interference from the government under
law or from private groups acting outside the law.
The
only area that is not recognized by the Court as falling under First
Amendment protection is obscenity. It is the common opinion that
obscenity can be used as a litmus test for deciding what is and what is
not protected under the First Amendment. Obscene material presents a
“clear and present danger” to society and that is why it has not been
deemed as protected speech.
The key in this
issue is to decide what is obscene and pornographic material. The
difficulty lies in defining this, but not abridging any freedoms and
protections of the First Amendment. The Court has been faced with
several obscenity cases. It has ruled in many of them that prior
restraint was unacceptably used and that censorship is not to be given
free reign.
The censoring of obscene
materials allows one individual to decide for a nation what is morally
acceptable and what is not. This is the major reason why the Courts
have taken a strict role in assuming this responsibility. They do not
want to take on the role as the “morality police” or “Big Brother” in
regard to different forms of literature, movies, books, tapes, etc.
Thus,
for material to be deemed truly “obscene” it must present a danger to
the nation or to a class of citizens, such as children (e.g. child
pornography) before the Court will take a strong stand against its
dissemination.
Source: http://www.illinoisfirstamendmentcenter.com/history.php
Now here's where my thoughts truly begin:
I can truly say that America is great because I can be allowed to freely expressed myself. Wonderful, right? However, I still think that the first amendment needs to be fixed, because racism and hate groups still exist. The First Amendment clearly allows people to have the freedom of speech, however, there's limitatations, such as not allowed to yell "fire" in the middle of a move theater (otherwise known as physical and emotional threats), as well as time of war the government is allowed to restrict certain rights, including the freedom of speech (to help protect the government, the people, and also to find spies who are in country and weed them out).
That's the only restrictions that I can think of for the First Amendment. However, because racism and hate groups still exist, how should the country address fixing these problems. Simple, first one needs to change the first amendment to state that racist remarks and hate groups should not be allowed. The government should therefore prosecute racist remarks told by people, as a hate crime, because racist rummagers often inflict emotional pain which therefore can translate as emotional threat. I often hate it when I hear people make racist jokes, because this makes me upset, and puts me under emotional harm.
As for hate groups still existing, I stumbled upon the KKK's website (KKK=Ku Klux Klan) which states: "Bringing a message of hope and deliverance to white Christian America! A message of love NOT hate!" source: http://www.kkk.com/
At first glance I see white Christians , therefore that essentially rules out about everyone who is not the same as KKK people (I am very much blue skin and have red hair, just joking ;)) But seriously the KKK can be remembered with bloodshed and violence. Here are some images:
Sources:
(This shows the KKK marching in the 1930's, when the KKK had a lot of power)
Lynching, approximately 1880's. Notice who are the victims, the minorities in America.
The most controversial and racist movie, about how America became America, however portraying the KKK as good people...though I question whether or not someone who lynches as a good person...Made in 1915
Another kind of muder. Mind you American government than did nothing.
Leo Max Frank (17 April 1884 - 17 August 1915) was an American Jew convicted of the rape and murder of a young girl. His trial and lynching by prominent citizens in Marietta, Georgia in 1915 led to the founding of the Anti-Defamation League.[1]
The manager of a pencil factory in Atlanta, Georgia, Frank was convicted of murdering and raping an employee, 13 year old Mary Phagan. The case is widely regarded as having been a miscarriage of justice.[2] The trial was sensationalized by the media. The Georgia politician and publisher Tom Watson used the case to build personal political power and support for a revival of the Ku Klux Klan. [3]
Shortly after Frank's conviction new evidence emerged that cast doubt on his guilt. After the governor commuted his death sentence
to life imprisonment, Frank was kidnapped from prison and lynched by a
mob of prominent citizens calling themselves 'The Knights of Mary
Phagan.'[4] The mob is reported to have included the son of a senator, a former governor, lawyers, and a prosecutor.[5] source: http://en.wikipedia.org/wiki/Leo_Frank
This case reminds me of how Ethel and Julius Rosenberg had an unfair trial (first you must be trial before a peer of judge, and innocent until proven guilty). The only reason why these events kept happening was because the national government didn't want to fix the problem, and many state government felt that the power it had was fine.  
The infamous burning cross, that KKK members did. This reminds me of my favorite movie "Mississippi Burning" where the KKK got caught and prosecute for the first time ever.
The more recent violence, from the 70's where Klan members did not want the equality movement to occur, the movie "Mississippi Burning," represents those times, and represents the investigation of three civil right workers in 1964, in Mississippi (one of the more violent states at those times).
So when I see the KKK website's wanting to spread the love not hate (for white Christians), I think these people still do not like the minorities, because the minorities are seen as aliens, or the fact that there are more minorities in America taking over America and then going to corrupt it. Mind you this country was: "It has also been
continuously recognized by the leaders of the United States that the
minority view can also hold truths. This is how our nation was able to
sever ties to Great Britain, by a minority group speaking out against
the tyranny." So I don't see how or why hate groups should exist.
Some solutions that can help society to prevent racism and hatred would be through education, laws, government, interventions, and diversity. Whether through formal or informal eduction, one can learn from an early age to recognize what racism is, where hatred comes from, and how to stop thinking negative thoughts. Through creating new laws and strengthening old laws against discrimination we can overcome division. The government could intervene when business organizations discriminate against employees (Union). For example, the government can shut down hate groups that are still active today. I picked to use KKK, cause it's a well known hate group, but there are other hate groups and racist groups out in America that are still active. The last solution is diversity; people can see different cultures are coming together; help people learn more about themselves and to be sensitive to other cultures. New York City is a prime example where freedom is for everyone, and is totally different from how the rest of America thinks (for example there are more minorities living in NYC, than anywhere else in America (and San Francisco comes in second).
"The
only area that is not recognized by the Court as falling under First
Amendment protection is obscenity. It is the common opinion that
obscenity can be used as a litmus test for deciding what is and what is
not protected under the First Amendment. Obscene material presents a
“clear and present danger” to society and that is why it has not been
deemed as protected speech."
Therefore the First Amendment should change to help prevent racism and shut down hate groups, by the Supreme Court, actually putting obscene material as clearly as possible, and maybe that way, racism and hate can be absolved. If this can happen, it can help bring an equal and unified America.
Next post: I know that this was a long post... Is about the pros and cons of the Themes. (Update: next week, not sure!) or next post might be any other thoughts I have.
Please comment below this post (and if replying to this post, say post 3 in the comment)!
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