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first amendment article(6 posts)

first amendment articleMJ
May 29, 2002 5:50 AM
http://www.guardian.co.uk/elsewhere/journalist/story/0,7792,724076,00.html

Freedom to hate, freedom to harm

With the supreme court to rule on the legality of racist cross burning, Julian Borger asks whether the US constitution remains a force for liberty

Wednesday May 29, 2002

The United States often appears peculiarly gripped by its history, perhaps because it is such a young country. Nowhere is this truer than in its celebrated constitution, which was written recently enough to embody the spirit of the modern age, but sufficiently long ago to emit the aura of a sacred text.
So it is that in recent weeks, the textual analysis of the second amendment has taken centre stage in the bitter political row about guns. The attorney general, John Ashcroft, reversed more than 60 years of official practice by arguing that the clause's disjointed phrasing - "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" - meant that every American has a constitutional right to own a gun. Not suprisingly, this triggered uproar among gun control advocates and renewed musing over what the "framers" of the constitution had in mind.

This week, it is the first amendment's turn. The supreme court has decided to consider an issue that most Americans and much of the rest of the world had considered dead and buried - whether there is a constitutional right to burn crosses in the manner made famous over a century ago by the Ku Klux Klan.

The Klan is still around, in a depleted and pathetic form, and there are still some people out there who choose to relive the "good old days" of overt and vicious racial bigotry by burning the odd cross. The court is to consider two cases from 1998, both from Virginia. In one incident, a Klansman lit a 30-foot cross on private land which, naturally enough, terrified passing blacks. In another case, a couple of drunken rednecks tried to burn a cross in a black neighbour's garden. When the cases went to trial, a conservative Virginia court reversed a 50-year-old law banning the practice, and brought some unpleasant history back to haunt the south.

The first amendment guarantees free speech. To be precise it prohibits Congress from making any laws concerning the "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."

Arguably, there is nothing in there about burning crosses, but it has generally been judicial practice to treat the whole amendment as a general safeguard for freedom of expression, and you cannot get much more expressive than setting fire to a huge wooden cross as a traditional symbol of racial hatred.

However, way back in 1919, a famous supreme court justice, Wendell Holmes, argued that some words represent a "clear and present danger" of incitement to criminality, and were therefore not protected by the constitution. At that time the alleged incitement came from a socialist who had been distributing pamphlets condemning military conscription in world war one, but in later decades it migrated to matters of race.

The idea of incitement is a tricky one, as it concerns the link between words or gestures and physical action. In a 1969 ruling, also involving racial incitement by a Klansman, the supreme court ruled that the first amendment protected all manner of ranting unless it was likely to "produce imminent lawless action". But that in turn raises the question: At what point does burning a cross turn from being merely obnoxious to a true threat to harm others?

In Britain and much of Europe, this would be a "no-brainer". Many countries have laws on the books outlawing racial incitement. If a reasonable majority or the ruling party decides a particular form of behaviour is sufficient
bad with the goodDougSloan
May 29, 2002 6:05 AM
If you really support the 1st Amendment, you must allow people to say what they want, no matter what the content, unless it incites imminent danger. Imminent danger means a threat of immediate harm. The definition is getting narrower all the time, too, thus expanding protected speech. It almost must be something like "I'm going to beat the crap out of you right now!" while holding up a baseball bat. Even putting abortion doctors on a "hit list" was deemed protected.

Yes, the Supreme Court is darn serious about free speech. It's a good thing, too, as both parties from time to time would love to mess with it and redefine what is protected. Republicans might want to ban "anti-American" speech, and Democrats want to label everything they don't like as "hate" speech (this analysis is a bit overly broad to make the point, I know). The "hate" term now applies to most everything they don't like, i.e., that is "politically incorrect." Both side are equally wrong in attempts to tweak the 1st Amendment, in my view.

Bottom line, I may not agree with you, but I'll defend your right to say what you want. It's essential to a free society.

As far as Ashcroft changing analysis of the 2nd Amendment, the opponents disingenuously argue that he's wrong to do so, as there is a long history of a different interpretation. Hmm. Where were these same defenders of Constitutional interpretation when schools were being desegregated, etc? People are fine with precedent as long as it suits them, it seems.

Doug
yeahMJ
May 29, 2002 6:15 AM
it's a funny thing the constitution - some interesting points in the article - but it's ultimately a good (and objective) tool - even if it does grant extremists (on both sides) legitmacy that seems unwarranted
Oh, no! I agree with Doug (but only to a point)cory
May 29, 2002 10:17 AM
Freedom of speech is freedom of speech, period. George Bush says things every day that I'd like to see banned, but once you drive in the thin end of the wedge, it's only a matter of time until the door flies open.
I dunno about a "Constitutional interpretation" that allows segregation, though...
As for Ashcroft: Cue the "Twilight Zone" theme, please. Scariest thing about him is that he's NOT scary to so many people. I'm hoping he winds up like Newt Gingrich, a mildly embarrassing answer to a trivia question.
then I want to change my answerDougSloan
May 29, 2002 1:07 PM
We probably agree on more than our egos would allow us to admit. :-)

Doug
re: first amendment articleMe Dot Org
May 29, 2002 3:53 PM
The price of Freedom of Speech is that it can make you feel bad. Can you honestly make the argument that you are more upset when you see a cross-burning than when you see someone wearing Klan robes or someone wearing a uniform adorned with swastikas?

Freedom of Speech is power, and one of those powers is the power to upset. Someone can burn a flag and upset someone. Someone can protest in front an abortion clinic and say "Don't kill your unborn child!" and upset someone.

I would rather risk upsetting someone or being upset than have the government decide what is too upsetting.

This country was founded by revolutionaries. Sometimes it is hard to live up to revolutionary principles. I find cross-burnings pretty upsetting, but that is a price I'm willing to pay for free speech.

Oliver Wendell Holmes also said (and I might be paraphrasing slightly here) that your right to swing your arm while walking down the street ends where the other man's nose begings. A cross-burning (as long the burning cross isn't waved in your face) might be upsetting, but, in and of itself is not a call to violent action.