Research Paper on The First Amendment: Crowdsourcing Liberty

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First Amendment interpretations cover everything from marriage to t-shirts. This sample politics essay explores the Bill of Rights and crowdsourcing.

Understanding the First Amendment

Imagine that you are a tyrant ruling over a medium sized resource-rich nation. Your country has a governmental tradition: vacillating between monarchy and dictatorships. Your land is filled with ambitious nobleman, peasant groups yearning for change and freedom, and army officers all vying for power through popular revolt or coup d’état. As a result, transferences of power happen fairly regularly.

This hypothesis is not unique; kings, emperors and despots throughout history, and in most of the world today, face such a dynamic. And, almost without fail, they have resorted to suppressing free speech, free press and free assembly as a way of preserving their place at the top, detrimental effects to the citizenry notwithstanding.

Take Cuba for example. During the Cold War, Cuban citizens had very few freedoms or protections. They could not protest, petition, or speak out against the government without consequence. The thousands of examples are too numerous to list here, but, the fact that nearly every tyrant resorts to these methods is the first clue to any serious student of history and political science as to how powerful these freedoms are.

As modern Americans, it is easy to take First Amendment rights for granted. We are born and raised in a society where almost all exercises of speech, press, and assembly are perfectly legal, no matter how vulgar or offensive. As such, it is easy to forget that we live in a very young golden age in humanity, an aberration in our history as a species.

Yet, we know intuitively that our freedoms at least correlated, and probably caused, our meteoric rise to world dominance. What then are these First Amendment rights exactly? And how did we, as a people, manage to make them reality when so many other civilizations failed?

Overview of First Amendment rights

When people think of the First Amendment, they usually think about the right to free speech1 In reality, however, the Bill of Rights and Constitution include a suite of other rights that not only compliment and reinforce the right to free speech and are crucial safeguards of liberty in and of themselves:

• freedom of the press
• freedom to peacefully assemble
  
• freedom of religion
• the right to petition the government for redress of grievances

While all of these rights are important to preserving freedom, this paper focuses on the role of freedom of speech in protecting against tyranny and preserving liberty.

Freedom of speech, the press, and assembly in history

Understanding The First Amendment requires us to appreciate the greater context in which it arose, namely, as a reaction to thousands of years of oppression by those in power. The Founding Fathers were all highly educated men and arguably the greatest group of thinkers since the Renaissance.

They realized that the new country they were creating was a unique opportunity to start with a clean slate and stop repeating the destructive and psychotic patterns man had been repeating in the preceding centuries. What specifically was The First Amendment meant to remedy? Censorship existed prior to the Constitution and First Amendment being drafted,

Galileo Galilei: An example of censorship and freedom violations

The history of man is replete with acts of free speech being punished by imprisonment, beatings, and even death. To take one example of literally thousands, consider the case of Galileo Galilei. In the early 1600s, Galileo promoted the idea that the sun was the center of our solar system. (“Galileo Biography”). In retaliation, religious fundamentalists in the Catholic Church took swift action against him. (“Galileo Biography”).

After threatening him with torture, they found him guilty of heresy after a sham trial before a kangaroo court; Galileo was sentenced to spend the rest of his life on house arrest. (“Galileo Biography”). Notice that Galileo was punished for words only. It was exactly this type of behavior the Founding Fathers wanted to protect.

Popular sovereignty and the First Amendment

This was the backdrop against which the Framers delineated our constitutional liberties. The question they faced, however, was how to ensure that these freedoms took root and grew beyond mere words on paper. Indeed, men had tried to codify these liberties before. The Magna Carta, for example, in 1215 when a group of rebellious noblemen leveraged King John into signing a written guarantee of certain freedoms. (“Magna Carta: An Introduction”). Although an important moment in history for its seminal act of encoding what should be natural freedoms, practically speaking, it amounted to little.

The authors of the Constitution knew that in order to go beyond mere words on a page they needed a radical shift in the nature of the relationship between governed and government. Enter the idea of “popular sovereignty.” Popular sovereignty is the idea that the state rules at the pleasure and consent of the governed. In other words, the state serves the people, the people do not serve the state.

This is the theory underlying all the constitutional rights: the right to bear arms, First Amendment freedoms and due process to name just a few. Grossly simplified, the idea is that the state is a servant to its master, the people. Thus understood, it follows as a natural corollary, that government does not have the power to forbid speech, just as obviously as a servant would not presume to tell its master what to say and how to say it.

Aspects of the right to free speech

The First Amendment’s free speech clause states:

“Congress shall make no law…abridging the freedom of speech” (Constitution of the United States).

The books, cases, law reviews and articles interpreting these few words of text could literally fill a large apartment. Let us, therefore, distil the central aspects of this freedom, how it works in context and what the limitations of this freedom are.

As previously stated, this right includes not only oral speech but the written word and expressive conduct. In our 200+ year history as a nation, this freedom has been tested and analyzed in just about every conceivable context: speech critical to the government, artistic freedom to use other people's photos as art, sexting, freedom of speech in school and more. To see how this right operates in context, let us examine a freedom of speech case in the school setting.

Freedom of speech in school

Tinker v. Des Moines Independent Community School District, from 1969, is the seminal case dealing with freedom of speech in school. In it, the Supreme Court held that, with some important limitations, free speech rights extended to students in school. Tinker involved a group of high school students who wanted to publicize their opposition to the Viet Nam War by wearing black armbands to school (Tinker).

Hearing about the plan, school officials quickly adopted a rule that would suspend any student who planned to engage in the protest (Tinker). Mary Beth and John Tinker wore their armbands anyway and were suspended (Tinker). They then sued the school in federal court for violating their right to free speech (Tinker).

The case eventually made its way to the Supreme Court where the justices used their power to decide in favor of the students and against the school. The Court justified its decision by saying:

State-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect. (Tinker)

The Court’s decision highlights an important feature of the right to freedom of speech, namely, that it extends as far as possible, even when there are arguable reasons to limit it. In Tinker, for example, the armbands did indeed cause controversy (Tinker). One teacher claimed to have had his math class “wrecked” by the stir they created and several students complained that they were offended by the display (Tinker).

Nevertheless, despite the school's academic rights, these disruptions had to yield before the sacred nature of the right to free speech. Such an attitude towards the right to free speech is essential for ensuring it is an actual right and not just some abstract principal found in a textbook. There will always be arguable reasons why the right should be circumscribed or limited in this case until, little by little, the right is eaten away to the point of meaninglessness. As the Court said so eloquently in its opinion:

“Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots” (Tinker).

Limits of freedom of speech

But no right, not even one as important as the right to free speech, is without limits. There’s an old saying in the law:

“The right to swing your fist ends at my nose.”

And it is the same with free speech. Below is a non-comprehensive list of these important limits:

Clear and present danger

The classic example is yelling “Fire!” in a crowded theater. Such speech is outlawed because it has little societal value and poses a great risk to peoples’ safety and well-being,

Slander and libel

The jurisprudence in this area is quite complex, nuanced and subject to a factored analysis. Essentially, however, courts are most likely to punish speech that asserts false statements of fact when it is done knowing the statement is false and least likely to punish speech when it criticizes the government (Gertz v. Robert Welch, Inc.). A prime example of slander is Hulk Hogan's lawsuit against Gawker.

Obscenity

Again, this is an area that involves a complex, factored analysis. In short, Courts are most likely to approve laws that punish displays that “appeal to a prurient interest” and that go against the community’s standards. Thus, one may glean from this standard that what would be constitutionally acceptable to prohibit in rural Iowa would be unconstitutional to prohibit in New York’s Greenwich Village,

Fighting words

Any kind of speech that, by its very nature, is so hateful and offensive, that it is likely to incite immediate violence is also constitutionally permissible for governments to outlaw.

Conclusion

The title of this piece uses the word “crowdsourcing” for a reason. The Founding Fathers knew that our freedom could not come from the top down and nor could it be entrusted to government officials. Rather, we as citizens must enforce and protect this natural right. We do this by remembering that we live in a very new, young and delicate golden age of peace, prosperity, and freedom. As such, it is incumbent upon us to pay attention to our government’s actions, speaking out when we see it doing wrong, go beyond the talking point headlines of the news, voting and always remembering that government is our servant, not the other way around.

Notes

1. Use of the phrase “freedom of speech” applies not only to oral communication but also, to the written word and non-verbal expressive conduct intended to convey a message such as flag burning, body language and silent marches (Gitlow v. New York, 268 U.S. 65, 1925).
2. For a recent example of a dictator attacking the right to Free Assembly as a means to suppress revolt, see “How Jogging in Burundi Became an Act of War” (Frick-Wright, 2016).

Works Cited

Constitution of the United States. 1787. Retrieved from: http://www.usconstitution.net/const.pdf.

Frick-Wright, Peter. “How Jogging in Burundi Became an Act of War.” OutsideOnline.com. Retrieved from: http://www.outsideonline.com/2062806/worlds-most-dangerous-running-club-burundi.

“Galileo Biography.” Biography.com. Retrieved from: http://www.biography.com/people/galileo-9305220#synopsis.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Retrieved from: https://scholar.google.com/scholar_case?case=7102507483896624202hl=enas_sdt=6as_vis=1oi=scholarr.

Gitlow v. New York, 268 U.S. 652 (1925). Retrieved from: http://caselaw.findlaw.com/us-supreme-court/268/652.html.

“Magna Carta: An Introduction.” British Library. n.d. Retrieved from: http://www.bl.uk/magna-carta/articles/magna-carta-an-introduction.

Schenk v. U.S., 249 U.S. 47 (1919). Retrieved from: http://www.wneclaw.com/firstamendment/schenckfrohwerkdebs.pdf.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Retrieved from: https://www.csustan.edu/sites/default/files/CJ/JJustice/CaseFiles/Tinker-v-Des-Moines.pdf.