First (Amendment) Things First

Want to read something scary?

Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family [“The Simpsons”], according to a survey.

No wonder we don’t mind watching our Constitutional rights slip away; too many of us don’t even know what our rights are. It gets worse: “About one in five people thought the right to own a pet was protected, and 38 percent said they believed the right against self-incrimination contained in the Fifth Amendment was a First Amendment right, the survey found.” Well, at least people know they have the right not to incriminate themselves, even if they are a little hazy on where that right comes from. You can read the whole Bill of Rights over at Cornell’s site, but if you don’t mind, I’d like to explore the First Amendment a little more:

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.

Wikipedia tells us that “Originally, the Bill of Rights applied only to the federal government and not to the several state governments…. However, in 1925 with Gitlow v. New York, the Supreme Court ruled that the Fourteenth Amendment (which had been adopted in 1868) made certain applications of the Bill of Rights applicable to the states. The Supreme Court then cited the Gitlow case as precedent for a series of decisions that made most of the provisions of the Bill of Rights applicable to the states.” So if you’d like to mentally say “The Government” where the original text says “Congress,” you would not be inaccurate. Let’s quickly look at our First Amendment rights:

Freedom of Religion means both freedom to believe whatever you want — and remember the Pilgrims were just the first of many people who came to this land looking for religious freedom — and freedom from Government dictated religion. Don’t try to argue that the Founding Fathers meant freedom to practice any kind of Christianity you like, because guys like Jefferson were well educated and knew about things like Mohammedans and the Salem Witch Trials. The same First Amendment that protects your right to practice any sect of Christianity protects your right to practice Islam, Judaism, Buddhism, Zoroastrianism, Satanism, Wicca, Shinto, Hinduism, Pastafarianism, or anything else you can think of. It furthermore protects all of us from the establishment of any sort of Holy Law, whether it is Sharia or Leviticus. The places where the practice of religion have been successfully superseded by the law are few, and dictated by an overriding good: in Texas it is not legal to withhold medical treatment from minors, regardless of whether the parents are Christian Science adherents; notwithstanding that some religions consider a young person to be an “adult” at 13 or so, it is still not legal to marry them off at this age. It is not a coincidence that both of these examples involve children; adults are free to do a lot of things, but they are not free to harm kids, even in the name of God.

Freedom of Speech or of the Press are kind of lumped together in the original text, so I will deal with them together. The right to say things and the right to publish what you say are closely related in any event. The Government cannot stop us from saying pretty much whatever we like, nor can they stop a newspaper from printing whatever they like. Period. The end. I fail to see how any kind of Government imposed “gag rule” can possibly be Constitutional unless issues of national security are involved. Nevertheless there are certain limits on this freedom that I think most of us can agree are a good thing: we can’t go around threatening people; we can’t incite violence or riots (the classic “Yelling fire in a crowded theatre” example); if we publish something that is demonstrably untrue, we should expect to be held accountable. However, when I say “held accountable” I mean correction statements or paying damages; we don’t normally put people in jail for publishing lies.

The right to peaceably assemble is in there too. We have the right to get together with our friends pretty much anyplace that we are allowed to be, as long as we play nice. So all those anti-loitering statutes stand on the shaky ground of assuming certain assembly to be not peaceable. And those “free speech zones” are a complete travesty. Freedom to gather together in protest is implicitly protected, again with the caveat that it must stay peaceful.

The right to petition the Government for redress of grievances is in my opinion one of the most underrated protections we have. This is the right to go to court, the right to say somebody did something wrong. And make no mistake about it, the First Amendment says the Congress and therefore the Government cannot take away your right to go to court. And here is why I think this right is underrated: Congress has passed several laws in recent years which either limit court review, or specifically say the law and/or actions of the Government cannot be challenged in court! The devil you say! Why aren’t the Jack McCoy’s of this nation standing up and challenging this affront to our liberties?

We must never forget that the First Amendment and the rest of the Bill of Rights was written by people who overthrew the legal Government.