The First Amendment Explained: Free Speech

(Part 2 of 2)

In part 1 of this series, I focused on the establishment and free exercise clauses of the First Amendment. This week's topic deals with the rest of the amendment, explaining: What is the meaning of free speech? Before I get into my thoughts on the matter, let's take another look at the First Amendment in all its glory:

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 Translation

The first phrase of the First Amendment, "Congress shall make no law" is key when discussing free speech in America. As Eric pointed out in response to part 1 of this series, when the First Amendment was written, the original intent of its authors was to restrict only the United States Congress from passing laws which restricted free speech, free exercise of religion, or establishing religion. The Anti-Federalists, who supported strong state government and a weak federal government (as opposed to the Federalists who supported a strong federal government), did not want the federal government to make restrictions on the rights of each state's citizens. This meant that, although the U.S. Congress could not pass laws which contradicted the U.S. Constitution, state governments could; when the Fourteenth Amendment was added to the constitution, this all changed (See my exchange with Eric on part 1 of this series for additional explanations). The Section 1 of the Fourteenth Amendment, which is relevant to this topic, reads as follows (italicized words are my emphasis):

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

With this change, when reading the First Amendment, replace "congress" with "No government body in the jurisdiction of the United States" and you will have the current definition of the amendment. This is my interpretation with the Fourteenth Amendment applied:

[No government body in the jurisdiction of the United States] shall make [any] 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.

Free Speech and the Free Market

In the past several years there have been many instances when someone said something controversial in the media and was punished in some way. A few instances come to mind: Whoopi Goldberg making obscene remarks about President Bush resulting in Slim Fast terminating her contract, Rush Limbaugh making comments about Donavan McNabb, which some regarded as racist, resulting in his resignation from ESPN, and the backlash against the Dixie Chicks after lead singer Natalie Manes said that she was ashamed that President Bush was from her home state of Texas.

What do all of these examples have in common? The free market censored them; not the government. The First Amendment does not protect against free market censorship, nor should it. The First Amendment does not guarantee that one has a right to an advertising contract, television contract, or radio air play. In all of these examples, others stood up in opposition to these controversial comments and the private companies which provided each a platform decided to take that platform away.

I'll use my blog for another example. Though I have a right to write about whatever I wish, but Blogger.com does not have an obligation to provide this forum. As a matter of fact, it Blogger.com finds my comments too objectionable, they have every right to shut my blog down. In addition, I also signed a contract; here is a sample of my contract:

Member agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, or harmful material of any kind or nature. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation"Pyra may, at its sole discretion, immediately terminate Service should Member's conduct fail to conform with these terms and conditions of the BTS.

In other words, if blogger.com does not want me to continue using its services, I have no choice but to go elsewhere.

The First Amendment and the FCC

I know of no more blatant violation of the First Amendment than the creation of the FCC. Even if the Fourteenth Amendment did not exist, the FCC, being a department created by congress, by its extension is the "congress" making law to abridge free speech. The only legitimate power the FCC has that I know of is to ensure that the radio and television waves do not interfere with other frequencies (this is the part they do badly).

The FCC has anointed itself as the body which will determine what is "indecent" or "obscene" giving only vague guidelines to the would-be offenders. There is also an inconsistency how the violations are enforced. Last year Howard Stern wrote a letter to the FCC to ask why Oprah was not fined for some of the content on her program while the FCC was consistently fining Stern for the same type of content. I guess it comes down to "Well she's Oprah, everyone loves her, and therefore it can't be indecent."

As if that isn't insane enough, on a local radio program out of Phoenix, Arizona, a Playboy model was being interviewed by the show's hosts. She was talking about her show on Playboy TV but she could not say the name of the cable provider (Cox) because coming from her "sexy voice" it would sound too dirty!

We need to make a decision in this country once and for all: Do we believe in the First Amendment or not? What you consider obscene, I might not. If you don't like the content of some program, don't write your congressman, just don't watch it! Why is this so hard to understand? The free market works. If enough people decided they did not want to listen to Howard Stern, he would lose advertisers and be off the air. That's what happened to Dr. Laura's TV show; she couldn't find advertisers. The free market spoke.

The whole purpose of the First Amendment is to protect unpopular or controversial speech against government censorship. Today the target is Howard Stern, tomorrow it could be Rush Limbaugh or Sean Hannity. Keep that in mind the next time you want the government to take someone off the air!

The First Amendment Explained: Establishment and Free Exercise Clauses

(Part 1 of 2)
The First Amendment of the United States Constitution is perhaps the most misunderstood amendment found in the Bill of Rights. Recent controversies surrounding this most important amendment include: Ward Churchill’s outrageous and despicable comments about the victims of 9/11, Whoopi Goldberg’s firing from Slim Fast for making offensive remarks about the president, The Ten Commandments displayed outside of courthouses, and the existence of ‘under God’ in the Pledge of Allegiance. None of these issues are difficult in light of the First Amendment; people on all sides of the political spectrum chose to ignore its meaning when it suits their needs. As a result, there have been many distortions about what the First Amendment really means; I will do my best to explain it in terms everyone can understand. Before I get into my analysis, let us take a look at the amendment’s actual language.

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 Establishment Clause (Separation of Church and State)

I wish I had a dollar for every time a conservative said: “The term separation of church and state appears nowhere in the constitution.” This is true, but the terms political party, democracy, and ‘checks and balances’ do not appear in the constitution either, yet they are part of the language we use to explain the meaning of various elements found the constitution. Thomas Jefferson was the one who coined the term “separation of church and state” to describe the meaning of the “establishment clause” of the First Amendment. Let’s examine the establishment clause:

Congress shall make no law respecting an establishment of religion

Period. End of sentence. When used in conjunction with the Fourteenth Amendment , ‘congress’ also means any other legal body in the United States “shall make no law respecting an establishment of religion.” The Ten Commandments on government property is in fact an establishment of religion by the government, therefore unconstitutional. With the addition of ‘under god’ in the Pledge of Allegiance , requiring students to recite this phrase in public schools also shows religious favoritism which ‘respects’ or encourages the belief of monotheism versus polytheism or atheism; none of which can be a favored religious belief by the U.S. government.

The Free Exercise Clause

The free exercise clause is what confuses many people who believe erecting manger scenes or displays of The Ten Commandments on government property is an issue of free exercise of religion. Let’s examine the exercise clause (the establishment clause has been purposely taken out for clarity of the exercise clause; my interpretation is in the brackets).

Congress shall make no law…prohibiting the free exercise [of religion].

The key term here is “free exercise,” not government exercise. As we have already established, government cannot ‘exercise’ religion; the free exercise is a right retained by the people (as all rights are except for those enumerated to the federal government in Article I, Section 8). Removing the Ten Commandments from the steps of a government institution such as a courthouse violates no one’s right to exercise and practice his or her religion. If a group of people want to preach and pray on the steps of the courthouse, they have that right to do so according to the exercise clause; this very different from placing a religious monument on government property. In fact, by removing the Ten Commandments from the government property, everyone’s right to practice or not practice religion as they see fit is protected from the government’s attempt to manipulate the public by using religion as a basis to infringe on this right and many others. Besides, which denomination gets to choose which version of the Ten Commandments to use, the Catholic version, Protestant version, or some other translation? Do other religions have equal access to display their creeds on the steps of the courthouse? The best policy is for the government to stay out of these quarrels between religions and let free people exercise their beliefs the way they see fit. The principle author of the constitution and bill of rights, James Madison explained it best: "Religion and government will both exist in greater purity, the less they are mixed together."

Many anti-church/state activists argue that the founders based the constitution on Judeo-Christian values. The truth of the matter is the framers developed a system of government unlike any in human history, and came from many different religious and nonreligious backgrounds. In addition to the First Amendment, Article VI, Clause 3 reads as follows:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Clearly, as a result of religion’s bloody history, the founders wanted a wall of church and state separation; a government neutral to the religious beliefs and practices of the citizens. Inevitably, I expect that I will be sent examples of some of the founders who did want a marriage between government and religion. Patrick Henry was one of them. What you may not know; however is that he was strongly opposed to the passage of the United States Constitution. Fortunately, Henry’s side lost this debate. Others argue that prayers before each session of congress took place from that time to this day and observe several other religious traditions. This is also true. We should also take into consideration; however, that while the delegates agreed that ‘all men are created equal’ and the government was to be ‘for the people, by the people,’ the only people who could participate were white men, some of who owned slaves. The truth of the matter is the constitution was written by wise but fallible men. They were unable to live up to their own ideals, just as we are falling short of these ideals today.

Next week: Part 2 of 2 of The First Amendment Explained: Free speech.

This & That

• President Bush is finally going to do it – cut wasteful spending. It’s about time! Though he only plans to cut $15 billion in this year’s budget (8/10 of 1% of the overall budget), at least it is a start in the right direction. Certainly there are many other areas of wasteful spending that needs to be cut. A good start would be to free up prison space by releasing all non-violent offenders for crimes such as drug abuse, prostitution, gambling, and other victimless crimes. If the president and the congress called off the war on drugs alone, this would save the taxpayer roughly $12.5 billion. I won’t hold my breath!
  
  
• Glen Beck made a very interesting point on his radio show (about a week or so ago) about Social Security. He pointed out that when Social Security was first enacted, the average life expectancy was at age 63 and one could collect the benefits at age 65. At that time most people did not live long enough to collect! Now the average is 76 but the age to collect benefits is still 65. Many people are living well beyond 76 and the age will continue to be higher and higher. As Beck pointed out, Social Security was never intended to be a 10 to 20 year vacation. The intent was to help those who could not physically work and earn for themselves. Based on the original intent, 2 years over the life expectancy, the age to collect benefits should be 78. Social Security was supposed to be completely privatized by 1965. The time for reform is way overdue (we’ll delve into this issue more in the future).
  
  
• I was very impressed with the recitation of the Declaration of Independence before the Super Bowl. For a large portion of the general public, it may have been their first exposure to this great historical example of statecraft. Every time I read or hear recitations of the Declaration of Independence, the Constitution, or the Federalist Papers I am struck by the founders’ genius and understanding of human nature and its relationship with government; I am inspired every time. If only we would return to this wisdom and usher in a new age of reason.
  
  
• Before the Super Bowl, I had never heard of the company GoDaddy.com, even though it is based in Scottsdale, Arizona near were I live. The ad was the one with the woman who was going before congress and had an unfortunate wardrobe malfunction. The ad only ran one time because Fox did not want to run it the additional 2 times. Did Fox not review the commercial before airing it? Why do some people find this ad so offensive? The people who tend to get offended never learn. Whether it is this ad or Marilyn Manson, Eminem, 2 Live Crew, or whatever, controversy is exactly what they are looking for! The best thing to do would be ignore the offensive behavior! Because of Fox’s actions, the matter will be settled in court which means more exposure for GoDaddy.com. Ah, capitalism at its best.
  
  
• Is it really possible that Bill Cosby sexually assaulted 2 different women? Say its not so!
  
  
• Doesn’t Virginia have any more pressing matters to consider before passing a law to ban exposed underwear?

• Some companies are now firing people for smoking, even if the smoking is on their time. Why? To keep group health insurance rates down. Wouldn't it make more sense to either make the smokers pay a higher deductible or make them sign a waiver for all smoking related illnesses? Its understandable that employers and nonsmoking employees don't want to pick up the tab for those who make poor health choices; why not make the smokers pay more? This is a microcosm of what could happen in a government-run healthcare system. The government would require fellow taxpayers to subsidize health insurance even for those who do not take care of themselves. The best approach is to allow the free market to work. The Arizona congressman from my district, John Shadegg (R), sponsors the Health Care Choice Act . Employers would still deduct from your payroll the amount allocated for your insurance but instead of the company choosing which healthcare plan for you, you have the freedom to choose the plan that suits your needs the best. It is a great idea; it empowers people not government.

• The Arizona Legislature is trying to pass a bill that would allow pharmacists to deny filling prescriptions if the pharmacist is personally opposed to a particular drug. Provisions have been made that pharmacists cannot deny birth control to customers (which is part of why this bill was presented to begin with), but the 'Plan B' and the so-called abortion pill are fair game. This is crazy! What right do you, Mr. Pharmacist have to deny an adult their drugs because of your moral issues! The choice is the individuals; this is a personal matter. Shame on you Arizona if you allow this bill to pass.

• The anonymous response to my Sponge Bob article was very interesting; it gave the readers of this blog and me a lot to think about. I do not want people to be of the impression that I am hostile to those who are religious. My hostility is directed at those who are intolerant of others. I can hardly write a self-righteous article about tolerance if I do not practice tolerance myself. I have friends who are Catholic, Mormon, Baptist, atheist, agnostic, liberal, and conservative- all of whom I have civil conversations with. This is one of the many reasons this country is great.
  
  
• You may notice that I don’t update my blog as often as others. I try to post one article per week. If you want my suggestions for more Fearless and thought-provoking reading, I highly recommend my links from this page especially Capitalism Magazine and Libertarian Girl. She posts so many quality articles each day, I don’t know were she finds the time!

Fearless Philosophy’s Salute to Ayn Rand (1905-1982)

Tomorrow is what would be the 100th birthday of one of the 20th Century’s foremost philosophers and authors: Ayn Rand. Rand is one of my great influences which inspired me to create this blog Fearless Philosophy For Free Minds. Rand is my definition of someone who approached life fearlessly and is definitely a fearless philosopher in my book. I was first introduced to her work my senior year in high school in her book The Fountainhead. Her books are extremely long (I’m still working on finishing The Fountainhead all of these years later; I’m about half-way through it), but worth the time. The main theme of her philosophy, objectivism, is the importance of the individual reaching his or her potential using free and objective critical thinking. I encourage all of my readers to study the life and philosophy of Ayn Rand. Cox and Forkum has an excellent biography (posted 2/1/05). Also look at Capitalism Magizine’s tribute and visit the Ayn Rand Institute.

“Individual rights are the means of subordinating society to moral law.” –Ayn Rand