Amendment IConstitution of the United States

Congress shall make no law respecting an establishment of religion, or prohibiting the 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.

3 Freedoms Guaranteed

• Freedom to worship without government interference. People can believe what they want.

• Freedom to say and print what they believe in – within reason…

• The right to assemble in political action and to protest.

But….

Even though the First Amendment was written in 1791, the reality of free speech and free press is only

about 75 years old…

The Turning Point

The Supreme Courts Decision in 1931, involving a “rabble-rousing

bigot in Minneapolis”…

Jay M. Near

The Saturday Press

• Near owned a paper called The Satuday Press

• Not very well liked for the way he talked about Catholics, Jews, blacks and Unions

• Spoke openly about city curruption, specifically the Police Department

Near v. Minnesota

Near’s case went to the Supreme Court in 1931. The court ruled in

favor of Near because his alligations of curruption were found to be true.

The Question:

If our history shows that the First Amendment is open for interpretion –(if allegations are proven TRUE then the First Amendment holds. If allegations are proven FALSE, then the First Amendment is not

upheld)

Is it still that fragile today?

Some History:

“The story of free speech and free press in America has inspiring moments, but much

of the saga is riddled with political expediency, judicial double-talk and bold

oppression.”

According to the author –

Not such a good history!

First press freedom case in America to draw attention:

• 1734 John Peter Zenger, New York Weely Journal• Accused of seditious libel against the governor of

New York– Sedition: the stirring up of discontent, resistance or

rebellion against the government in power.

– Libel: any false and malicious written or printed statement, or any sign, picture or effigy tending to expose a person to public ridicule, hatred or contempt or to injur his reputation in any way.

NOT GUILTY!

Despite what the judge wanted, the jury found Zenger not guilty of seditious libel because what he published was based on fact.

Political Fighting and the Press

1797

President Adams, head of the Federalist Party and Thomas

Jefferson, leader of the Democratic-Republicans

Newspapers campaigning for both sides were vicious in their attacks. The Federalist controlled government wanted to silence the Democratic-

Republicans…

How? They passed the

Alien and Sedition Acts of 1798(sneaky…..)

• Anyone conspiring to oppose any measure of the government…by writing, printing or speaking in a way considered damaging.

• Punishment: 5 years in jail and a $5000 fine (a huge amount for that time)

• Arrests began immediately and the press was silenced.

The Good News:

Jefferson won the election and the control of Congress shifted to the

Democratic-Republic Party. The Act expired and Jefferson pardoned all

those who had been arrested!

Up until the 1830’s, the U. S. Supreme Court viewed the First Amendment as

applying to Congress and not to the states. Because of this, states could administer

their own interpretation. There were BIG differences between the states – especially

in regards to slavery.

In 1837 a mob from St. Louis murdered the editor of the St. Louis Observer, an abolitionist newspaper.

The Start of the Civil War1861

• Pro-Confederate publishers were being killed

• Anti-Lincoln newspaper, the Jeffersonian was destroyed by a mob

• The Confiscation Act allowed authorities to seize the property of any citizen who supported the Confederacy

The 13th and 14th Amendment

At the end of the Civil War in 1865, Congress passed the 13th Amendment abolishing slavery.

But because of the states ability to administer the laws of the First Amendment as they interpreted

them, in the South blacks still had no rights.

So Congress passed the 14th Amendment which said that states could not pass laws that took away

the rights guaranteed by the Constitution.

Ya…No

As soon as the Union troops withdrew from the South, the 14th

Amendment was completely ignored.

Amendment for ALL

• In the early 1920’s, during WWI, The Supreme Court began changing it’s opinion

• In 1927, in a due process case, the assertion was that the 14th Amendment meant that the protection of the Bill of Rights applied to the states, not just to Congress

• In the Jay M. Near case, the Supreme court ruled in favor of Near stating that the 14th Amendment applies to ALL states and censorship of it was illegal.

The Near vs. Minnesota decision gave judicial muscle to the First

Amendment’s protections, but the strength has remained conditional, based on the limits set by the US

Supreme Court.

?? Is the First Amendment still open for interpretation??

“One of the most notorious moment’s in history”

“Justice Oliver Wendell Holmes famously wrote in a unanimous 1919 decision, “The most

stringent protection of free speech would not protect a man from falsely shouting fire in a

theatre and causing a panic. The question in every case is whether the words used are used in such

circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to

prevent.”

Sounds good, right?…

This very ruling justified the silencing of speech by the

government as it had never been seen before.

Interesting fact about war time…

The time preceding war, seems to be an allowed time of intense debate.

But once the decision has been made to actually GO to war, all arguments must

cease.

In 1917, during WWI, The Espionage Act prohibited people from saying or printing anything that “hindered the war

effort”.

All or Nothing?

During WWI, almost 2000 prosecutions occurred under the Espionage Act.

In the case of Scheneck v. U.S., lawyers argued that the First Amendment guaranteed “absolute

unlimited discussion” of public matters.

The government’s response:

“…to assert a right to self-preservation that trumps the First Amendment”.

In other words…

The First Amendment still had limits, and the government decided what

those limits were.

How do things stand today?

The current definition for what trumps the First Amendment was set

in 1969 in

Brandenburg v. Ohio.

Clarence Brandenburg was a member of the Ku Klux Klan, and at a rally he spoke that if changes were not made in America, violence might well be

the next step.

He was arrested an convicted, but the US Supreme Court reversed the

decision…

The ruling that still stands today…The court ruled that “freedoms of speech and press do not permit a state to forbid advocacy of the use of force or of law

violation except where such advocacy is directed to inciting or producing imminent

lawless action” and is likely to succeed.(In other words, people can threaten violence as long as there really

isn’t much possibility of it actually happening)

This is considered to be the single most protective First Amendment ruling of all.”

Floyd Abrams, First Amendment Lawyer

So where’s the balance?

“…as citizens we are all protected by both the First and Sixth amendments, and a journalist also has a responsibility as a

citizen.

“…I wish I felt more confidence that freedom would prevail.”

The author

“…the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.” The First Amendment