- The Evolution of the First Amendment
The first amendment states, "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.(encyclopedia)
The inhabitants of the North American colonies did not have a legal right to express opposition to the British government that ruled them. Nonetheless, throughout the late 1700s, these early Americans did voice their discontent with the crown. For example they strongly denounced the British parliament's enactment of a series of tax levies to pay off a large national debt that England incurred in its Seven Years War with France. In newspaper articles, pamphlets and through boycotts, the colonists raised what would become their battle cry: "No taxation without representation!" And in 1773, the people of the Massachusetts Bay Colony demonstrated their outrage at the tax on tea in a dramatic act of civil disobedience, the Boston Tea Party.(Eldridge,15)
The stage was set for the birth of the First Amendment, which formally recognized the natural and inalienable rights of Americans to think and speak freely. The first Amendments early years were not entirely auspicious. Although the early Americans enjoyed great freedom compared to citizens of other nations, even the Constitution's framer once in power, could resist the string temptation to circumvent the First Amendment's clear mandate. Before the 1930s, we had no legally protected rights of free speech in anything like the form we now know it. Critics of the government or government officials, called seditious libel, was oftenly made a crime. Every state had a seditious libel law when the Constitution was adopted. And within the decade of the adoption of the First Amendment, the founding fathers in congress initiated and passed the repressive Alien and Sedition act (1798). This act was used by the dominant Federalists party to prosecute a number of prominent Republican newspaper editors.(Kairys,3) When Thomas Jefferson was elected president in 1801 they also prosecuted their critics. More than 2,000 people were prosecuted, and many served substantial prison terms.(Kairys,4) Prior to the '30s, the court upheld seditious libel laws and suppression of speech or writing based on the weakest proof that it could leas to disorder or unlawful conduct sometime in the future, in however remote or indirect a fashion.
Today the First Amendment protects many forms of expression including; "pure speech, expressed in demonstrations, rallies, picketing, leaflets, etc. The First Amendment also protects "symbolic speech" that is nonverbal expression whose main purpose is to communicate ideas.(McWhirter,18) In the 1969 case of Tinker v. Des Moines Independent Community School District , the Supreme Court recognized the right of the students to protest the Vietnam War by wearing black armbands. In 1989 and again in 1990, the Court upheld the right of an individual to burn the American flag in public as an expression of disagreement with government policies.(Eldidge,19) Other examples of protected expression include images in works of art, slogans or statements on T-shirts, "fashion statements that incorporate symbols and/or written slogans or declarations, music lyrics and theatrical performances.
Within the last two years I have seen most of these protected expressions banned in some situations. Some of the more focused issues were fashion and display of art. The right to freedom is being severely tested today, just as it has been throughout the 200 year history of the bill of Rights. Governments by nature are always seeking to expand their powers beyond proscribed boundaries, the government of the United States being no exception. And since the right to free expression is not absolute, it must be constantly protected against official depredations.
Today, artistic expression is under attack, as some groups of citizens seek to impose their morality on the rest of society. Book censorship in the public schools, mandatory record labeling, as well as obscenity prosecutions of rappers, record distributors and museum directors, are all displays of suppression effort. Artists, performers and authors now occupy the same weak position that political radicals did in the late 1950s. TV networks and local stations as well as large newspapers owned by fewer and fewer large corporations with less and less concern for journalism or public discourse claim absolute protection not only from government censorship but also from any claims to access by the people. Although these media corporations monopolize the market place of ideas, the courts tend to protect them against demands for popular access, as if the major media were merely individuals handing out leaflets on a major street corner.
In the past two hundred years of struggle to preserve freedom of expression have taught us anything, it is that the first target of government suppression is never the last. Whenever government gains the power to decide who can speak and what they can say, the first Amendment rights of all of us are in danger of being violated. But when all people are allowed to express their views and ideas, the principles of democracy and liberty are enhanced. American democracy should mean more than the right to picket when you are really upset or pissed at the system and to vote every four years in elections devoid of content or context. Change will require, as it has in the past, recognition that free speech and democracy are political, not narrowly legal, issues. And it will also require an enlargement of our understanding of such rights to include public access to the various mass media.
Eldridge, Larry D. A Distant Heritage: The Growth of Free Speech in Early America. New York: New York University Press, 1994.
Kairys, David. The Politics of Law In These Times. New York. Patheon Press, 1991.
McWhirter, Darien A. Freedom of Speech, Press, and Assembly, Phoenix AZ: Oryx Press, 1994.
The World Book Encyclopedia.1995.
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