This is a jump off of the Ender's Game thread, as well as a discussion on the same subject I had elsewhere on the internet (namely, Orson Scott Card). In the other discussion, people were advocating book stores take Card's works down (which I think is a bad idea), and others were saying that would infringe Card's First Amendment rights. That sort of claim is common, so I thought it would be useful to say a few words about U.S. law and the U.S. Constitution. This may or may not be of interest to members outside the U.S. The first thing you have to remember when dealing with things like free speech is that the First Amendment protects against government action, not private action. Initially, it was only the Federal Government that was bound by it (in fact it starts with Congress shall make no law), but with the Fourteenth Amendment and the subsequent Incorporation Doctrine, the state and local governments became bound as well. If I run a bookstore and I decide to take Card's works off the shelves because I don't like his political views, I have not infringed Card's First Amendment rights. If I am the head of a public library and I decide to take Card's books down for the exact same reason, then I have infringed his First Amendment rights. So, keep in mind the requirement of State action if you're talking about violating the Bill of Rights. It was said here that the First Amendment defines free speech. That's not the case. The First Amendment protects free speech, among other things, but doesn't define free speech. It would have been impractical to do so, and instead we have decades upon decades of case law from the courts establishing the boundaries of free speech. Some might argue for a literal interpretation of the First Amendment and consider that a blanket definition, but if that's true then it certainly isn't the definition we use, and furthermore not a practical one. If you look at the First Amendment it provides an absolute prohibition on laws abridging speech, prohibiting free exercise of religion, or laws "respecting an establishment of religion." Here's the text: We do have laws abridging speech, of course. Also abridging the press. Also laws with respect to religious establishments, and laws that can curtail the free exercise of religion, and so on. A literal reading of the amendment to provide an absolute prohibition would be unworkable. It may have been workable at the founding of the country, when the First Amendment only applied to the Federal government (in other words, States could still make these laws), but now that this amendment applies to all levels of government a literal reading isn't feasible. In any event, there are a lot of misunderstandings surrounding Constitutional law in the U.S. The Constitution is itself a legal document. In fact, it is the Supreme law of the U.S. The final arbiter of what it means and how it should be applied is the Supreme Court (a power not actually granted to the court in the Constitution, but taken by the Court itself in the famous Marbury v. Madison case early in our history). To get back to Card - private individuals boycotting his work, or refusing to stock his books on their shelves, is not a First Amendment issue. Those things in no way infringe Card's First Amendment rights. Nor would denying him space to write an article in a magazine, newspaper, or web site based solely on his political views be a First Amendment issue, unless it was the government that was denying him the opportunity. I, personally, don't agree with pulling his works from shelves or trying in other ways to censor him, even when done by private parties, but the Constitutional guarantee of freedom of speech doesn't enter into it.
I'd like to hear why you think it isn't feasible. Which begs the question of whether their usurpation of this power was actually legal. This I agree with and not because he's a homophobe, but because civil rights protect citizens from the government, not from each other.
An absolute prohibition would mean no laws against defamation, no hate speech laws (actually, that might be a good thing), no regulation whatsoever of religious establishments (which is already relatively minimal), and no prohibitions of any kind so long as people formed a religion around what they wanted to do. It's one thing to say that the Federal government can't do any of that. When the country was founded, that was the case, but the States had all kinds of laws in these areas, so someone was doing something. I favor an expansive First Amendment and limited regulation of these areas, but I wouldn't close the door completely on any and all regulation. Yes. But the rationale in Marbury was pretty sound, I think. Ultimately someone has to have the final say if you're ever going to resolve disputes. Giving it to the Supreme Court as opposed to the legislative or executive branches makes a certain amount of sense.
But, I don't have a problem with getting rid of defamation laws, hate speech laws, laws prohibiting religious speech, etc. I still don't see what would make a return to the First Amendment infeasible. I think the balance of powers was a good idea and set up so that no one branch of the government has the final say. I'm also quite sure that the Legislative and Executive branches could make compelling and sound arguments that they should have the final say.
Someone has to have the final say, or a dispute relating to a question of Constitutional law could never be resolved. Each branch can make their arguments, but I think the judicial branch has the most convincing arguments. As for getting rid of things like defamation - I don't think that's a good idea. Just by way of example, if someone created a body of lies to destroy someone's livelihood, then the person impacted should have some legal recourse. A system where the halls of justice said "sorry, we can't help you" would not be a good one.
I don't know. I think two branches against one is a good way to resolve an issue. And, incidentally, the judicial branch is headed by people appointed (not elected) for life. That means that a Republican/Democrat POTUS in their second term can appoint an extremist for life. That's not good when that extremist can swing critical opinions on the final say of national law. That's where I believe in the power of the press and an educated populace. A person trying to defame someone else can be responded to by someone else trying to defame -them-. It perpetually trains the populace to be wary of what they read. That, I think, is a good thing.
It should be noted that in Schenck v US, the Supreme Court held that the right of free speech was not absolute (the now classic example given by Oliver Wendell Holmes in that case was that one does not have the right to yell, "Fire!" in a crowded theater, thereby causing a panic). In that same decision, the Court laid down the standard by which governments could limit the freedom of speech, that which presented a "clear and present danger". I would argue that defamation laws do not constitute a governmental restraint on one's right to free speech. The very fact that defamation has occurred proves that the right has already been exercised. Rather, they are the means by which persons who engage in defamatory speech are rightly held liable for the tortious damages they inflict upon others as the result of that exercise.
They're not a prior restraint, which is heavily disfavored under the law. But since the government can order the speaker liable for damages, I think they qualify as a limitation on speech. Certainly, people may choose to refrain from defamatory speech because of the exposure to liability.
An exercise in the concept of your rights end where mine begin? Correct. It is more a delineation between freedom of speech and freedom to speak with impunity.
They may, but they ultimately have the freedom not to. Years ago, when I was doing a lot of advocacy work on behalf of people with disabilities, someone threatened to sue me because they didn't like how I characterized their opposition to people with disabilities living in their neighborhood. My wife and I added an umbrella policy to our homeowners insurance and continued advocating as before, undeterred. True, we never would have been liable for big money but this way the insurance carrier would have absorbed the legal costs, which is what will drive you batty in any nuisance suit. Oh, and we won.
@Ed - yeah the legal costs aren't always figured in by people when they consider their liability. For example, making a fair use claim if you receive a cease and desist letter for copyright infringement, or if you are accused of trademark infringement but believe you are in the right. In either case, you will spend hundreds of thousands of dollars in all likelihood if the case were to go all the way through trial, so even if you eventually win it is an expensive proposition. Constitutional discussions are always interesting to me. I tend to take an expansive view of the Bill of Rights (in favor of individual rights and freedoms), and I apply that to all of the Bill of Rights. More commonly in current U.S. politics, people will pick and choose which of the Bill of Rights they support and which they're OK with infringing
The "shout fire in a crowded restaurant" ruling is one of the best examples of why the Judicial branch should NOT have final say. Holmes basically pulled this out of his ass because he didn't like people protesting against the war.
Schenck isn't really good law anymore. But I think Holmes' basic point works - if I am in a situation where I know there is a substantial risk of injury or death for shouting something, and I shout it, and there is injury or death, should I be fully immunized from any legal consequences because of the First Amendment? Still, the legal test of Schenck is no longer what is used, and I think the outcome of that particular case was wrong as well.
Schenk was never good law. That's the problem. No. The problem is that there's nothing stopping such a stupid ruling from being created again. That's why we need for the Judicial branch to NOT have the final say. That's why we need a balance of powers.
There's nothing stopping equally stupid decisions from the other branches, and perhaps an increased likelihood of it because they're beholden to the voters. Think about the nation during WWI. You think the executive or legislative (which passed the Espionage Act in the first place) would have reached a better decision under Schenck? It would have been worse. By the way, by "good" law, I don't mean good as in "good versus bad," I mean "valid." The clear and present danger test from Schenck was the law following that ruling, like it or not. But it is no longer the law.
Yes. But think of that in the context of a case. How do you get a resolution? Suppose in Schenck, just as a hypothetical, the Executive thinks he violated the law, and the Legislative thinks he violated it, but the Judiciary thinks he was protected by the first amendment. Which viewpoint do you use to determine whether to throw the guy in jail? Or, since the executive controls law enforcement, do they get to throw him in jail because they have the power (in which case they become the de facto decision maker)? When you have criminal prosecutions or civil actions, you have to ultimately have a final decision maker for these issues.
But, the issue we're discussing (or, at least, I thought we were discussing) is not criminal or civil legal disputes with a member of the public. I thought we were discussing whether or not the Executive or Legislative branches can pass a law without the Judiciary branch ruling it unconstitutional.
The two go together. If the legislative passes a law that has Constitutional implications, and the Executive signs it, and I get charged with violating it, someone has to decide whether or not the law is valid. The laws aren't just passed and existing in a vacuum. The only reason they ever come up to be potentially invalidated in the first place is when there is a case or controversy that makes its way through the courts.
If the Legislative passes a law and the Executive signs it, then ipso facto it has -already- been ruled as valid by two of the three branches of government, or at least, that's how the Balance of Powers work. What the Judicial branch did is usurp power that was not granted to it which, I'm pretty sure, is an act of treason.
That's not a workable system. If the Constitution is supposed to protect against the tyranny of the majority, but yet anything passed by the Legislative and signed by the Executive is automatically valid Constitutionally, then there is no protection. If you had a Congress and President that agreed that interracial marriage could be made illegal, or that consentual homosexual sex was a crime, or that searching people's homes no longer required a search warrant, then under your system that would settle it. Having the Constitutionality of acts decided by the two branches that are directly beholden to the popular vote is not a good idea.
Your system provides no protection against the Judicial branch - a small group of people who are not elected and are in office for life. At least with my system, two of the branches have to work together and, even then, can only make laws which may well be replaced in four years. It just occurred to me that what we've got here is a dispute between Hamiltonian (you) and Jeffersonian (me) styles of government. I'm not a fan of Hamiltonian government. We would have been a lot better off if Aaron Burr had pulled his trigger a few decades before he did.
Yeah, but ultimately you have to have a final arbiter and that branch is the weakest. They have no enforcement mechanism, no army or police. They're subject to impeachment, if it comes to that. On many issues the legislative can overrule them by statute. On Constitutional issues they can be overruled by Amendment or by subsequent decisions of later courts.
