What is so hard to understand about the First Amendment?

Discussion in 'Politics, Religion, Social Issues' started by Herdfan, Sep 28, 2017.

  1. Herdfan macrumors 6502

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    #1
    The text of the First Amendment:

    It starts with "Congress shall make no law".

    See the First Amendment only applies to the government making laws limiting free speech, right to petition and seek redress. Not one place in there does it mention private individuals or corporations not being allowed to limit speech.

    I really do not see what is so hard about this concept and am sad that Civics is not drilled into the heads of today's students.
     
  2. citizenzen macrumors 65816

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    #2
    It's a misconception that has been around as long as I can remember.
     
  3. ItnStln Suspended

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    #3
    And yet I still see people arguing otherwise!
     
  4. BoxerGT2.5 macrumors 68000

    BoxerGT2.5

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    #4
    Is there context or is this just and open ended statement?
     
  5. yaxomoxay macrumors 68040

    yaxomoxay

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    #5
    The context is probably the history of the Republic.
    The latest context is probably the NFL.
     
  6. BoxerGT2.5 macrumors 68000

    BoxerGT2.5

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    #6
    Well that's rather broad. The NFL is a specific case.
     
  7. hulugu macrumors 68000

    hulugu

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    #7
    Sure, but simply quoting chapter and verse on the U.S. Constitution ignores more than 200 years of jurisprudence that should be considered and evaluated as well.
     
  8. jerwin macrumors 68020

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    #8
    [​IMG]
     
  9. giantfan1224 macrumors 6502a

    giantfan1224

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    #9
    But that's what 200 years of jurisprudence has attempted to do, interpret that exact chapter and verse from the Constitution.
     
  10. yaxomoxay macrumors 68040

    yaxomoxay

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    #10
    Yeah but it would be very hard to say that the substance of the 1A has been changed.
     
  11. Rhonindk macrumors 68040

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    #11
    Civics. The high school I used to mentor at only had a 1 semester high level class on it. An elective class.
    They really do need to bring back more in-depth required class.
     
  12. jerwin macrumors 68020

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    #12
    OK, smart guy. How did the Alien and Sedition Acts ever pass Strict Scrutiny?
     
  13. Rhonindk macrumors 68040

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    #13
    For those who wish to delve ... (ARTICLE)
    These are the appplicable landmark court cases for all aspects of the first amendment.
    Summary level ;)
     
  14. BoxerGT2.5 macrumors 68000

    BoxerGT2.5

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    #14
    On a case by case basis.
     
  15. yaxomoxay macrumors 68040

    yaxomoxay

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    #15
    Did it reach the SCOTUS?
     
  16. jerwin macrumors 68020

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    #16
    The more speech the better.

    [​IMG]
     
  17. hulugu macrumors 68000

    hulugu

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    #17
    Right, but the confusion often exists not because people don't know the First Amendment (they don't, but that's another problem) but because they often get confused about a complicated subject.

    Hell, media law is a whole semester class for graduate students and it's only a surface review of some very important subjects. It's really just enough to keep a reporter from getting sued for libel.
    --- Post Merged, Sep 28, 2017 ---
    Sure, but that's true with all of the Amendments. By this argument, how do we understand the Fourth Amendment, the Eighth Amendment, and the 14th Amendment?

    And, how do we understand the line "Congress shall make no law." Does that mean the Executive Branch can limit speech on its own? Can the judiciary? Can state legislatures blunt the First Amendment because only Congress is limited. These interpretations matter and cannot be dismissed.
     
  18. jerwin macrumors 68020

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    #18
    why do think that this would have mattered?
    1794 < 1803.
     
  19. yaxomoxay macrumors 68040

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    #19
    Of course! It is true to all amendments. I don’t think that the substance has ever changed, we are just clarifying the gray areas more and more...

    It can’t as it would go against the express will of Congress (which in this case is expressed also in the Constitution itself) and against the powers given to the Exec branch.

    It can’t. What it can do is to rule about some exceptions/conduct elements.

    It was possible a long time ago (that’s why the Sedition laws could pass), but XIV amendment changed this.

    Absolutely!
    --- Post Merged, Sep 28, 2017 ---
    Because you talked about strict scrutiny.
    And you talked about a law that has to deal with state rights before the XIV amendment passed (and incorporation was initiated).
     
  20. jerwin macrumors 68020

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    #20
    And most of them date from well into the twentieth century. Is Schenck vs United States still considered "good law." Lots of people like to say things about fires and crowds, and theaters, but Holmes stretched his own analogy so very very thin.


    so much for original intent.
     
  21. yaxomoxay macrumors 68040

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    #21
    Is that the one about criminal intent/attempt? (Sorry can’t see the video now)
     
  22. blackfox macrumors 65816

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    #22
    Oh, I can't help but be amused comparing this thread to a thread about the 2nd Amendment...
     
  23. jerwin, Sep 28, 2017
    Last edited: Sep 28, 2017

    jerwin macrumors 68020

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    #23
    Schenck v United States was the case in which Holmes proposed that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic",.

    Schenck was convicted of mailing pamphlets to draftees, urging them to resist the draft.

    The two acts are not remotely comparable, so I think he was stretching it a bit. (The video is a jokey aside,)
     
  24. Scepticalscribe macrumors Westmere

    Scepticalscribe

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    #24
    A good (and fair) point, and one very nicely made.

    Last year, I bought a nice, far, heavy, hard-back biography of O. W. Holmes; must make time to read it, as it has been sitting on the sofa rebuking me.
     
  25. jerwin macrumors 68020

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    #25
    The Alien and Sedition Acts were passed by Congress in 1798. (not 1794, as I erroneously stated, but the inequality still stands...). Some of the acts expired in 1802, and were not renewed out of fear that the the Democratic-Republicans would use these powers against the Federalist party.
    The Supreme Court didn't give itself the power to strike down acts of congress until 1803. (Marbury v Madison, which incidentally involved some last minute appointing by Adams before Jefferson took office.)

    The first amendment was not incorporated against the states until the 1920s (and only gradually, by parts).
    https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
    strict scrutiny dates to the late 1930s

    Quite a lot has changed (and for the better) in the years since the bill of rights was ratified.
     

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25 September 28, 2017