NEW NATION, NEW VALUES, NEW THOUGHTS:
                             the Bill of Rights and Freedom of speech


Textbook: Illustrated History of the USA, pp 32-39 or Nations of Nations, pp 167-192


CRITICAL QUESTION:  what is the relationship between freedom and security?


                              The Constitution and The Bill of Rights


1 The First Amendment Explained

Extacts from:

http://www.freedomforum.org/packages/first/curricula/educationforfreedom/FirstPrinciples.htm

(UNITED STATES CONSTITUTION)

Amendment 1. "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."

The First Amendment affirms the freedom of the individual, based upon the concept that all human
beings are born with certain rights or freedoms. The First Amendment guards these rights by
prohibiting the government from denying citizens their rights. The government does not give rights.
Its role is to guard the rights that we already have.

Freedom of religion

The First Amendment prevents the government from establishing an official religion. Citizens have
freedom to attend a church, synagogue, temple or mosque of their choice — or not to attend at all.

Freedom of speech

The First Amendment keeps the government from making laws that might stop us from saying what we
think. People have the right to criticize the government and to share their opinions with others.

Freedom of the press

A free press means we can get information from many different sources. The government cannot
control what is printed in newspapers and books, broadcast on TV or radio or offered online.
Citizens can request time on television to respond to views with which they disagree; they may
write letters to newspaper editors and hope those letters will be printed for others to see. They
can pass out leaflets that give their opinions. They can have their own Web pages and offer their
opinions to others through the many means made available by the Internet.

Freedom of assembly

Citizens can come together in public and private gatherings. They can join groups for political,
religious, social or recreational purposes. By organizing to accomplish a common goal, citizens can
spread their ideas more effectively.

Right to petition

“To petition the government for a redress of grievances” means that citizens can ask for changes in
the government. They can do this by collecting signatures and sending them to their elected
representatives; they can write, call or e-mail their elected representatives; they can support
groups that lobby the government.

The First Amendment is based on the premise that people who can freely share information
(especially about their government) will be informed and able to make sound choices about what
leaders to elect, what forms of government they want, what laws to enact. The freedom to exchange
information about the government enables people to seek alternatives to bad government. The First
Amendment tells the government to keep its “hands off” our religion, our ideas, our ability to
express ourselves.

“Congress shall make no law …” means that as far as possible the government may not interfere with
our fundamental rights. But “No law” does not mean “absolutely no law.” The Supreme Court has
affirmed that some limits must be placed on our freedoms. For instance, human sacrifice cannot be
permitted in the name of freedom of conscience. When two rights collide, for example, when an
individual’s right to personal privacy conflicts with the free flow of information, The government
(through the courts) may make decisions that protect both rights to the fullest extent possible.

When faced with unpopular views or unrefined speech, members of the public may ask, “Why doesn't
the government do something about that?” The answer? Neither government nor a majority of the
public has the authority to stop an unpopular idea. In the “marketplace of ideas,” we may choose
which views to support and which ones to reject. When all ideas are allowed to flourish, we — as
individuals — may decide what ideas and concepts to question, embrace or reject. First Amendment
advocates say: The antidote to distasteful or hateful speech is not censorship, but more speech


2 The Free Marketplace of Ideas

Extracts from:

Charles P. Curtis, Jr. and Ferris Greenslet, eds. THE PRACTICAL COGITATOR

(Boston: Houghton Mifflin, 1945) 293ff.


Louis Brandeis, Supreme Court Justice

Those who won our independence believed...that freedom to think as you will and to speak as you
think are means indispensable to the discovery and spread of political truth; that without free
speech and assembly, discussion would be futile; and that...the greatest menace to freedom is an
inert people; that public discussion is a political duty; and that this should be a fundamental
principle of the American government.


Oliver Wendell Holmes, Jr., Supreme Court Justice

[writing of democracy]...the ultimate good desired is better reached by free trade in ideas - that
the best test of truth is the power of the thought to get itself accepted in the competition of the
market, and that the truth is the only ground upon which their wishes safely can be carried out.
That at any rate is the theory of our constitution. ...We should be eternally vigilant against
attempts to check the expression of opinions that we loathe...


Archibald Macleish, Lawyer, Poet and Librarian of Congress

Criticism in a free man's country is made on certain assumptions, one of which is the assumption
that the govenment belongs to the people and is at all times subject to the people's correction and
criticism. criticism of the government made upon that basis is proper criticism, no matter how
abusive.


3 Where do our rights come from? Individual freedom vs. power of the state

Extracts from:

http://www.pbs.org/georgewashington/classroom/theory3_2.html


The cornerstone of the American political system is the principle of human equality enshrined in
the Declaration of Independence. The Declaration begins with a simple yet profound articulation of
this principle: "We hold these truths to be self evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty,
and the Pursuit of Happiness." All human beings possess equally the natural rights to life,
liberty, and the pursuit of happiness. The Declaration goes on to state the purpose of government:
"That to secure these rights, governments are instituted among men, deriving their just powers from
the consent of the governed..." Since all men possess equal rights by nature, the purpose of
government is to secure those rights.

If the purpose of government is to protect rights, then government must be limited to those things
necessary for the protection of rights. If the government itself becomes too large and powerful, it
becomes a threat to the rights and liberties of the people, the very things government is supposed
to protect. This underlies Madison's famous statement in Federalist 51: "If men were angels, no
government would be necessary. If angels were to govern men, neither external nor internal controls
on government would be necessary." Madison's point is that human nature is not angelic: human
beings are not wholly good. Sometimes they violate the rights of others. Thus government is
instituted to protect its citizens against those who would violate their rights. But at the heart
of the idea of just government lies a great difficulty: government must be at once strong enough to
protect our rights, but not so strong that it threatens our rights.

Based on the principles of the American Founding, legitimate government has only the power
necessary to affect its end: the protection of our rights. In order to limit the powers of the
government, the Founders offered a written constitution which specifies what government ought to
do, and what it ought not do. This idea of limiting the powers of the government defines the
structure of the American Constitution. The law is superior to the government in the sense that
government can only do those things that the law (the Constitution) permits. At the same time, when
government exercises power over citizens, it must do so by general laws that apply equally to all
citizens similarly situated. If the purpose of government is to protect the rights of citizens, and
all citizens possess equal rights by nature, then the government must treat citizens equally by
passing general laws.

As Supreme Court Justice Harlan wrote in his dissenting opinion in the case Plessy vs. Ferguson,
"In view of the Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and
neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are
equal before the law. The humblest is the peer of the most powerful." If government is to protect
the equal rights of citizens, it must offer every citizen the equal protection of the law. This
kind of rule, and only this kind of rule - the rule of laws that offer equal protection - is
compatible with the idea of human equality and equal natural rights.


                           The Bill of Rights and its modern application


1 Security and Freedom - the battle continues

Extracts from:

Mackubin Thomas Owens: "Lincoln and Bush on Vigilance and Responsibility" Weekly Standard
(12-21-05)


The president faces a dilemma that was expressed by James Madison in a letter to Thomas Jefferson:
"It is a melancholy reflection that liberty should be equally exposed to danger whether the
government have too much or too little power." Lincoln addressed this dilemma during his speech to
a special session of Congress after Fort Sumter. "Is there," he asked, "in all republics, this
inherent, and fatal weakness? Must a government, of necessity, be too strong for the liberties of
its own people, or too weak to maintain its own existence?"

Throughout the history of the American republic, there has been a tension between two virtues
necessary to sustain republican government: vigilance and responsibility. Vigilance is the jealousy
on the part of the people that constitutes a necessary check on those who hold power, lest they
abuse it. But while vigilance is a necessary virtue, it may, if unchecked, lead to an extremism
that incapacitates a government, preventing it from carrying out even its most necessary and
legitimate purposes, e.g. providing for the common defense.

Responsibility, on the other hand, is the judgment necessary to moderate the excesses of political
jealousy, thereby permitting limited government to fulfill its purposes. Thus in Federalist 23,
Alexander Hamilton wrote that those responsible for the nation's defense must be granted all of the
powers necessary to achieve that end. Responsibility is the virtue necessary to govern and to
preserve the republic from harm, both external and internal. The dangers of foreign and civil war
taught Alexander Hamilton that liberty and power are not always adversaries, that indeed, the
"vigor" of government is essential to the security of liberty.

Harvard law professor Laurence Tribe wrote, "civil liberties are not only about protecting us from
government. They are also about protecting our lives from terrorism." As Justice Jackson famously
said of the Bill of Rights, the Constitution "is not a suicide pact."

Today, once again we face the perennial tension between vigilance and responsibility as the United
States is the target of those who would destroy it. In response to criticism of his suspension of
the writ of habeas corpus, Lincoln asked, ". . . are all the laws but one, to go unexecuted, and
the government itself go to pieces, lest that one be violated?" Lincoln's point is as applicable
today as it was during the Civil War. If those responsible for the preservation of the republic are
not permitted the measures to save it, there will be nothing left to be vigilant about.

[Mackubin Thomas Owens is professor of national security at the Naval War College.]


                                    How free is "free" speech?

Extracts from:

Gregory Armstrong, Protest: Man Against Society. USA: Bantam Book, Inc. 1969.


Protest is an inherent part of human experience. America was born in dissent and continues to
struggle and grow with new protests. The abolitionist movement was instrumental in freeing the
slaves. The protests of organized labor ensured a more equitable distribution of the nation's
wealth. Protest movements won the vote for women. In our own time, they have initiated the
painfully slow process of bringing racial equality and justice to our land.

In a democracy, there is not only a right of protest, but a duty to protest. This is part of the
pact which a democracy makes with its citizens. A democracy assumes that each citizen will be
responsible and articulate about his own needs, and that if he is abused by others, even by the
government itself, he will seek appropriate redress in terms of persuasion, the elective process
and finally, all else failing, through mass public demonstration.

By its very nature, democracy encourages conflict and dissent. It takes for granted that there will
be injustice both in the public and private lives of its citizens and that protest action to
correct these injustices is not only morally imperative, but socially desirable. Only totalitarian
societies believe that they have found the final and ultimate answers to all the various problems
of living, and squash dissent.

In democratic theory, it is accepted that each man knows more about his own life than any outsider.
He knows more about what hurts him, what humiliates him, what gives him pleasure. In a democracy,
his uniqueness gives him the right to speak out and his government the obligation to listen.

American democracy is founded on the belief that truth is never completely known to any individual,
group or generation. It is something which alters radically with changing times and conditions. As
Jefferson put it, "The earth belongs to the living, not to the dead." One generation has no right
"to bind the succeeding generation." From this it follows that there are no unalterable laws except
the law which recognizes the right of change. It also follows that each generation has the right
and duty to attempt to make its own world by its own lights.

Does it follow from the right of protest that the individual citizen has the right to break the law
to correct what he regards as injustice? Governments, for their own preservation, must answer "No!"
A government which did not enforce its laws, or which granted individuals the right to violate them
at their whim would be no government at all.

But the issue is not a simple one. Christ, Gandhi, Martin Luther King, Jr. and many other religious
leaders believe that there is a higher law than the law of society, a universal moral law which
supersedes all the laws of mankind. This law not only sanctions, but demands civil disobedience
when the laws of society contradict it. Gandhi and others com¬pletely reject the idea that a
majority has any special claim to moral judgment. As Thoreau put it, "A majority are permitted ...
to rule . . . not because they are most likely to be in the right . . . but because they are
physically the strongest." For Thoreau, the conscience of the lowest individual was more important
than all the laws of society. He believed that each individual had his own special claim to the
truth. This was sufficient justification for acts of civil disobedience.


Quotes below from: John Wahlke, ed. Loyalty in a Democratic State, DC Heath, Boston, 1952

Carey McWilliams, writer

“That we are punishing heresy in the guise of testing loyalty becomes clear the moment we attempt
to define the meaning of loyalty. A concern with loyalty has often served as cover for an attack on
civil liberties.”

Henry Steele Commager, historian

“[Loyalty] is above all, conformity. It is the uncritical and unquestioning acceptance of America
as it is – the political institutions, the social relationships, the economic practices.”


Chicago Tribune October 18, 2004; America's new McCarthyism; In the "war on terrorism," we once
again see the manipulation of fear and the corruption of public discourse in pursuit of partisan
gain  Geoffrey R. Stone

http://www.law.uchicago.edu/news/stone_mccarthyism.html

As the rhetoric of the 2004 presidential campaign descends to the level of fear-mongering, and as
President Bush pointedly accuses his challenger, Sen. John Kerry, of advancing policies that will
"weaken America," it is important to recall other periods in our history when national leaders have
similarly manipulated fear to serve narrowly partisan ends.

This autumn marks the 50th anniversary of the fall of Sen. Joseph McCarthy. During the decade we
now associate with "McCarthyism," fear ran rampant in our national politics. With the Iron Curtain,
the fall of China, the Korean War and the fear of nuclear bombs raining down on American cities,
the American public was ripe for opportunistic politicians.

In the 1946 midterm elections, the Republicans first began to play the Red card. In California, a
young Richard Nixon charged his congressional opponent with voting the "Moscow" line; and B.
Carroll Reece, the chairman of the Republican National Committee, proclaimed that the "choice which
confronts Americans is between Communism and Republicanism." The Republicans won a stunning
victory, picking up 54 seats in the House and 11 in the Senate. Fear had proved a potent political
weapon.

As early as 1798, when the United States was on the verge of war with France, bitter political
conflict buffeted the nation and called into question the very survival of the Constitution.
Although supporters of Thomas Jefferson questioned the need for war, anti-French Federalists warned
that "unless the nation prepared immediately for war," it could expect "nothing but bloodshed,
slaughter, pillage and a complete subjection to France." President John Adams placed the country in
a state of undeclared war against France, and a wave of patriotic fervor swept the nation.

When Jefferson's supporters questioned the president's call to arms, they were charged with
dishonesty and disloyalty. Federalist congressman "Long John" Allen questioned whether they loved
their country and Federalist congressman William Edmund charged them with being "so degraded". In a
pattern that has become all too common, Federalists blurred the line between dissent and treason.

In the "war on terrorism," we once again see the manipulation of fear and the corruption of public
discourse in pursuit of partisan gain. Shortly after Sept. 11, 2001, President Bush warned, in
terms strikingly reminiscent of language used by John Adams, "You are either with us or with the
terrorists." Shortly thereafter, U.S. Atty. Gen. John Ashcroft underscored the point, castigating
Americans who challenge the government's policies: "To those who scare peace-loving people with
phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our
national unity and diminish our resolve. They give ammunition to America's enemies."

As former Ambassador James Goodby has written, in the Bush administration, as in the age of the
Sedition Act and the era of McCarthy, fear has too often "become the underlying theme of domestic
and foreign policy." The "bottom line has been ... 'You are scared--trust us.'"

Geoffrey R. Stone is a law professor at the University of Chicago Law School and the author of
Perilous Times: Free Speech in Wartime.


Constitutional Rights Foundation; America Responds to Terrorism

A "Clear and Present Danger"

http://www.crf-usa.org/terror/clear_present.htm

After the terrorist attacks in New York and Washington, Americans pulled together. But Americans
still speak out voicing many different opinions. The First Amendment of the U.S. Constitution
guarantees freedom of speech. And most Americans support the idea of free speech. But since the
First Amendment became part of the Constitution in 1791, American citizens have sometimes gotten
into trouble with the government for speaking out. This has happened when a speaker was considered
"too unpatriotic," "too radical," or "too dangerous."

Who should have freedom of speech? Should it apply only to those who voice opinions most people
agree with? Or, should it be for everyone, even for those who hold opinions that most Americans
hate?

Also, what does freedom of speech really mean? Does it mean that someone should be able to say
whatever he or she wants at any time or place? Or, should speech sometimes be limited by the law?


"Clear and Present Danger"

Another major attempt to regulate freedom of speech occurred during World War I. In 1917, Congress
passed the Federal Espionage Act. This law prohibited all false statements intending to interfere
with the military forces of the country or to promote the success of its enemies. In addition,
penalties of up to $10,000 and/or 20 years in prison were established for anyone attempting to
obstruct the recruitment of men into the military. In 1918, another law was passed by Congress
forbidding any statements expressing disrespect for the U.S. government, the Constitution, the
flag, or army and navy uniforms.

Almost immediately, Charles Schenck, general secretary of the American Socialist Party, violated
these laws. He was arrested and convicted for sending 15,000 anti-draft circulars through the mail
to men scheduled to enter the military service. The circular called the draft law a violation of
the 13th Amendment's prohibition of slavery. It went on to urge draftees not to "submit to
intimidation," but to "petition for repeal" of the draft law.

The government accused Schenck of illegally interfering with military recruitment under the
espionage act. Schenck admitted that he had sent the circulars, but argued that he had a right to
do so under the First Amendment and was merely exercising his freedom of speech.

The issue found its way to the U.S. Supreme Court. Justice Oliver Wendell Holmes wrote the opinion
of the unanimous Court, which sided with the government. Justice Holmes held that Mr. Schenck was
not covered by the First Amendment since freedom of speech was not an absolute right. There were
times, Holmes wrote, when the government could legally restrict speech.

According to Justice Holmes, that test is "whether the words...are used in such circumstances as to
create a clear and present danger." Holmes said that in Charles Schenck's case the government was
justified in arresting him because, "When a nation is at war, many things that might be said in
time of peace are such a hindrance to its effort that their utterance will not be endured so long
as men fight and that no Court could regard them as protected by any constitutional right."

In the Schenck case, the highest court in the nation ruled that freedom of speech could be limited
by the government. But Justice Holmes was careful to say that the government could only do this
when there was a "clear and present danger" such as during wartime. While settling one legal issue,
however, the Supreme Court created others. For example, what does a "clear and present danger"
specifically mean, and when should it justify stopping people from speaking?


The Angry Crowd

Another important free-speech case took place after World War II. It was only a few years after
thousands of American soldiers had given their lives to defeat Adolf Hitler and the German Nazis.
Arthur Terminiello was speaking before an audience in Chicago. His message was hate. He said that
Hitler was right in what he did. He claimed that Democrats, Jews, and communists were all trying to
destroy America.

An angry crowd gathered outside the hall where Terminiello was speaking. Bricks and bottles soon
rained through the windows as his oratory continued.

Arthur Terminiello was later arrested, tried, and convicted for disturbing the peace with his
provocative harangue. He claimed that he should not have been arrested since his speech was
protected by the First Amendment. The city of Chicago, however, argued that the things Terminiello
raved about in his speech so angered people that a "clear and present danger" to the safety of the
community had occurred.

In 1949 the Supreme Court reversed Terminiello's conviction. (Four of the nine justices dissented.)
In the majority opinion, Justice William O. Douglas wrote that "it is only through debate and free
exchange of ideas that government remains responsive to the will of the people...." Justice Douglas
stated that in a democracy free speech must occur even if it causes disputes, unrest, or "stirs
people to anger."

Thus, according to Justice Douglas, "freedom of speech, though not absolute, is protected against
censorship or punishment unless shown likely to produce a clear and present danger of serious
substantive evil that rises far above public inconvenience, annoyance or unrest."