Constellations
And
The First Amendment
As happens again and again throughout history the first amendment, our freedom of speech, is being debated to justify and or villainize the behavior of those around us. The first amendment reads as the right to “Religion, speech, and freedom of assembly.” Per the National Archives, “The First Amendment provides several rights protections: to express ideas through speech and the press, to assemble or gather with a group to protest or for other reasons, and to ask the government to fix problems. It also protects the right to religious beliefs and practices. It prevents the government from creating or favoring a religion.1” Put simply, the first amendment grants us the right to say as we please, even to the government, and to peacefully assemble without government interference.
There is however an elastic clause in the Constitution, including the Bill of Rights. This clause supports a loose interpretation of the constitution. The elastic clause basically leaves gray areas of the Constitution to be decided at the hands of Congress and or the Supreme Court. Essentially it is up to one of these parties to decide whether or not the Constitution supports a specific scenario or not. It is because of this process that one could point to specific cases handled by the Supreme Court to determine whether or not anything not directly mentioned in the Constitution is supported by the Constitution or not. Once it has been decided for a case handled by the Supreme Court whether or not the Constitution supports or opposes said sentiment, this decision applies to the general public.
Since the ratification of the Bill of Rights, more has been decided about the meaning of the first amendment than “religion, speech, and freedom of assembly,” much of which you may not be aware of.
1: You can not be forced to pledge allegiance
The first amendment protects you from being forced to say or salute anything you do not agree to. Justice Robert Jackson decided this in the 1943 case, West Virginia v. Barnette.2 In Justice Jackson’s own words, “... if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or force citizens to confess by word or act their faith therein.” The case was opened in defense of two students who were expelled from school for refusing to salute the American flag. The students were Jehova’s Witnesses and were hesitant to salute the flag because of religious restrictions. The year before, West Virginia had established a law ordering students to salute the American flag, so this case questioned the constitutionality of that law. Justice Robert Jackson deemed the law unconstitutional and determined the law a violation of free speech and freedom of religion. He went on to say,
“One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
2: Freedom of speech reduced in times of war
In the 1919 case of Schenck v. United States, it was ruled that the government can restrict expressions that “would create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.3” The defendants of the case were Charles Schenck and Elizabeth Baer.4 The two were accused of handing out leaflets pushing American citizens to peacefully disobey the draft to war as it was a violation of the Thirteenth Amendment. The Thirteenth Amendment states, “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,5”; therefore, the draft was seen as a violation of this Amendment as it was a form of involuntary servitude. The two were scrutinized for violating the Espionage Act of 19176 and interfering with the recruitment process. The Espionage Act was made to punish any support of United States enemies during times of war and any interference with military operations or recruitment. Consequently, the two were seen to have violated this act as it was an attempt to interfere with the war, and Schenck and Baer lost the case in a landslide. Justice Oliver Wendell Holmes famously compared the controversial leaflets to shouting “Fire!” in a public place as both cause unnecessary panic, so they were not protected under the First Amendment.
In yet another 1919 case, Debs v. United States, it was determined that the First Amendment did not protect anti-war speech designed to obstruct recruiting.8 It was yet again Justice Oliver Wendell who convicted Debs on the grounds of violating the Espionage Act by interfering with the draft.
3: Violent speech, mixed signals
In the 1925 case Gitlow v. New York, Benjamin Gitlow and Alan Larkin were arrested for distributing a “Left Wing Manifesto” back in 1919.9 The two were publishers of a newspaper titled The Revolutionary Age. They printed the article, which was modeled after the Communist Manifesto, and in it they called for violent overthrow of the United States government. Gitlow argued that his publication had not resulted in any actual violence, but the court had ruled 7-2 that any speech calling for violent overthrow of the government was a violation of the Criminal Anarchy law, which nullified his First Amendment rights.10
In contrast, one may present the 1969 case Brandenburg v. Ohio. Klan leader Clarence Brandenburg gave a speech claiming the federal government was suppressing the “white caucasian race” and planned a march to Washington D.C on Independence day to call for “revengeance.” At the time, there was already a law stating that any speech advocating illegal activity was not protected under the First Amendment.11 This was the Ohio Criminal Syndicalism law. It specifically criminalized speech advocating crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform. It also criminalized assembling with any society, group, or assemblage of persons formed to teach or advocate such topics aforementioned criminalized by the law.12 While his march on Washington was protected under the Constitution, his speech violated the Ohio Criminal Syndicalism law. He was openly anti-semetic, anti-black, and called for violence in order to establish political reform. When Brandenburg’s case was taken to the Supreme Court he was originally sentenced ten years in jail for violation of the Ohio criminal syndicalism law; however, the law was later deemed unconstitutional. His conviction was later reversed on grounds of a violation of the First Amendment.
In both cases laws were broken, and violence was threatened. In Gitlow v. New York, the defendants were sentenced to 20 years for breaking said law despite no actual violence afterwards. In Brandenburg v. Ohio, the defendant was a leader of a group formed to insight violence. He was sentenced 1-10 years for his crime, only for the law to be declared “unconstitutional” and repealed. This left him in violation of no law and free to lead his Klan. Who must follow the rules, and who has rules repealed in their favor is unfortunately evident in United States history.
4: Permission to burn the flag
Gregory Lee Johnson was convicted and sentenced to a year in jail with a $2,000 fine for burning the American flag in protest of the Raegan administration . In his home state of Texas there was a law criminalizing flag desecration. The Supreme Court decided that this protest was in fact justified and constitutional. So as decided in this Supreme Court case, Texas v. Johnson, the defamation of the American flag in protest is an act protected under the First Amendment.13Justice William Brennan Jr. is credited to the claim,
“If there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Per the First Amendment Encyclopedia,14 “The protection of the freedom to express unpopular ideas, symbolized by burning the flag, was more important than protecting the ‘cherished emblem.’” This decision was not popular, only being accepted by a vote margin of 5-4, and leading to extreme protests.
Additionally, in 1969 a group of students in the Des Moines independent school district were protected for their organized visual protest against the Vietnam War in the case of Tinker v. Des Moines.15 In contrast, David O’Brien burned his draft card in 1968 in a Boston courthouse in opposition to the same war.16 In other words you may burn the flag because one’s freedom to express unpopular ideas is more important than the flag itself; however, to burn one’s own call to a war they do not approve of is unconstitutional. He was convicted of having broken a federal law making the destruction of draft cards a crime. When the case reached the Supreme Court, he was found guilty 7-1.
The right to display symbols that arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender is also protected by the First Amendment. In the 1992 case of R.A.V v. City of St. Paul, a group of teens were accused of burning a homemade cross in the front yard of a black family’s lawn.17 There had already been a law in place criminalizing such acts; however, once presented to the Supreme Court this law was declared a violation of the First Amendment. The law was repealed and charges dropped in a 9-0 vote. The most notable reasoning behind this, as offered by cited source, was that if one were to hold up a sign calling all anti-semites bastards, that person could be criminalized under that very same law; therefore, it must be repealed due to its one sided bias. Per Oyez 2016,
"to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."
In Conclusion...
According to our Constitution, the American people will always have the right to religion, speech, and freedom of assembly. However, what this means exactly will forever be changing with the times as other cases arise. Laws can be followed, repealed, or amended. All of the previously mentioned cases and their outcomes were decided by the Supreme Court. Unfortunately, citizens can not vote Supreme Court Justices in or out. The President nominates a candidate upon each open position, and the Senate will decide if the party may be appointed. Supreme Court Justices serve for life, allowing a large span time to make monumental judgements. Not every person should be able to name all these cases mentioned, but activists and debaters should be aware of how their outcomes affect their rights; and may eligible voters be aware of who they vote for in every election, as potentially similar rulings by newly elected supreme court judges could infringe on the rights they would like to preserve.
Works Cited
National Archives on the First Amendment
Britanica on West Virginia v. Barnette
Freedom of Speech, General
Schenck v. United States
The Thirteenth Amendment
Espionage Act
Abrams v. United States
Debs v. United States
Britannica on Gitlow v. New York
Gitlow vs. New York
Brandenburg v. Ohio
Brandenburg v. Ohio
Texas v. Johnson
First Amendment Encyclopedia on Justice William Brennan Jr.
Tinker v. Des Moines
United States v. O’Brien
R.A.V v. The City of St. Paul