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The need for clarification of the first amendment of the united states constitution

Freedom of Expression This section addresses four sets of issues concerning free speech under the first amendment: Our freedom of speech, protected by the First Amendment in the Bill of Rights, is one of our most basic constitutional rights.

  • In contrast, the expression of an opinion is not considered defamation;
  • Alternatively, could the prohibition on obscenity be a reflection of moral values and societal standards which should more properly be handled in the private sector through moral education, not government censorship?
  • Collier, Harvard Classics, Volume 25;
  • Why or why not?

Yet the precise nature of what is protected by the First Amendment is often misunderstood. The word speech in the First Amendment has been extended to a generous sense of "expression" -- verbal, non-verbal, visual, symbolic. The artistic work supported by the NEA includes a variety of types of expression enjoying this broad protection. Various exceptions to free speech have been recognized in American law, including obscenity, defamation, breach of the peace, incitement to crime, "fighting words," and sedition.

The work of major philosophers who have considered freedom of expression e. Mill and Joel Feinberg is helpful in explaining the rationale for these exceptions. For suggested issues for further discussion, look for this symbol in the text: The First Amendment to the U.

Constitution This image is the joint resolution of Congress in 1789 proposing amendments to the Constitution, now known as the Bill of Rights. It is on permanent display in the Rotunda of the National Archives.

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Note that the document uses the word "speech," although a long succession of court decisions has expanded this concept far beyond ordinary verbal communication. Protected expression now includes such non-verbal expression as wearing a symbol on one's clothing, dance movements, and a silent candlelight vigil.

Consider how the concept of "speech" has been broadened by the courts. What is "speech" for these constitutional purposes? Must it constitute communication? Must it use a language of some verbal or non-verbal sort to receive this protection? What do we mean by a language? Are there forms of expression which we would not want protected? Also note that the language is a prohibition on Congressional action. The First Amendment applies only when Congress passes a law abridging speech.

Suppressions of speech are not violations of the First Amendment unless the State does the suppressing. The State could be either the Federal government or now a State government.

Many mistakenly thank that any suppression of speech, including suppression by private citizens, violates the First Amendment. Such a private action might be objectionable for ethical or social reasons, but it does not present a constitutional issue.

If a record company decides to drop a certain rap group from its roster of recording artists, has the First Amendment been violated? Senator makes a speech in which he says he personally wishes that Hollywood would stop making X-rated moves, has the First Amendment been violated? If the wife of a Vice-President of the United States urges that recording companies adopt a voluntary rating system to warn parents about offensive content, has the First Amendment been violated?

Why it is that one might still object to these private suppressions of speech, even when the government is not involved.

David Bernthal/Off the Bench: Government action and the First Amendment

Are these ethical concerns? If so, what ethical principles are at stake? Should all citizens be urged on moral grounds to allow freedom of expression by all of their fellow citizens and not attempt to suppress that speech as private citizens? Would the First Amendment be improved if it prohibited abridgement of speech by anyone, not just Congress?

Should every citizen have a right to say anything at all with no suppression by fellow citizens? Are there times when private citizens not only could but should suppress the speech of their fellow citizens? Controversies about speech protected by the First Amendment seem to arise because the speech at issue is unpopular or controversial or highly offensive for various reasons. Yet a hallmark of the Bill of Rights is protection of minority views.

If the First Amendment only protected popular speech, supported by the majority of citizens, then the constitutional protection would not be needed.

Instead we could simply have a referendum with the majority deciding which speech should be allowed. In a sense, of course, Congressional representation constitutes a majority referendum. If the majority of citizens is presumed to speak through Congress, and if a majority of Congress votes to ban certain speech, then the First Amendment intervenes to prohibit that suppression by the majority.

Should we protect minority views?

Are there minority views we should protect, while others should be suppressed? How should such a distinction be made? If a statement is offensive to someone, should it be suppressed? If it harms someone, should it be suppressed? What speech is protected? Speech includes much more than verbal oration and need not include any words. The expression of artists, including the use of symbolism, is protected under the First Amendment. The wearing of armbands with a peace symbol was protected during the Vietnam War as symbolic speech protected under the First Amendment.

Des Moines School District, 393 U. A continuing issue is the precise nature of artistic and symbolic speech that is protected versus behavior that is not. Justice David Souter recently listed some of the forms of artistic expression protected under the First Amendment which have been recognized by the U. Should performance art that includes many overt, physical behaviors be protected as symbolic speech? What might we mean by a symbol in the context of the First Amendment?

Is that the same sense we might use when interpreting, for example, the symbolism in a work of art? What does Tinker v. Des Moines School District mean today, almost 30 years later? A new Web site, produced by the American Bar Association, Division of Public Education, includes discussions with the students who were the original plaintiffs in this case, along with extensive information about the case: Exceptions to Freedom of Expression Many exceptions to the First Amendment protections have been recognized by the courts, although not without controversy.

Courts sometimes justify these exceptions as speech which causes substantial harm to the public, or speech which the Founding Fathers could not have intended to protect, or traditions that have long been part of the common law tradition from England that was the basis of our American legal system.

Rather than merely reciting the list of established exceptions, it is important to understand the rationale for making exceptions to free speech protection under the Constitution. The value of free speech sometimes clashes with other important values in our culture. How should we weigh the relative importance of these competing social values?

How do we balance free speech against racism, sexism, or anti-Semitism which promotes values we despise as a country? Exceptions established by the courts to the First Amendment protections include the following: Defamation the need for clarification of the first amendment of the united states constitution of a publication of a statement of alleged fact which is false and which harms the reputation of another person. The courts recognize that words can hurt us, for example, by harming our ability to earn a living economic harm.

This exception to freedom of expression can be difficult to apply in practice. Defamation requires an allegation of a fact which is in fact false. In contrast, the expression of an opinion is not considered defamation. Imagine an artistic exhibit claiming that certain named persons, ordinary citizens were child molesters or had a secret Nazi past or earned extra income as prostitutes.

If these are viewed strictly as factual claims which are false, they would seem to constitute defamation. But what if the artist said she was expressing a symbolic commentary or creating a metaphor about the secret lives of ordinary people, not making an allegation of fact? How should we draw the line in an artistic work between a factual statement and a symbolic or metaphorical opinion?

Some years ago, on an eastern college campus, flyers were distributed with the names of male students randomly drawn from the student directory, with the label that they were potential rapists.

Assume, for the sake of argument, that this is guerrilla theater art. Were these flyers statements? Were they false statements? Were the reputations of the male students harmed? Should these expressions be protected by the First Amendment if the expressions were made by artists?

  1. Why it is that one might still object to these private suppressions of speech, even when the government is not involved.
  2. Joel Feinberg, for example, has considered "how the liberal [i.
  3. Of course, this freedom is not unlimited.
  4. If real harm is present, then we should next address the causal relationship necessary to hold someone responsible for the harm caused by the expression.
  5. The act was struck down by the U.

Should we allow such statements, even if they are defamatory, if they are made by artists? How then should we decide who counts as an artist for this exception to the prohibition on defamation?

In 1990, Donald E. Wildmon, Executive Director of the American Family Association, published a pamphlet which include excerpts from the work of artist David Wojnarowicz in an exhibit, "Tongues of Flame.

Although the court agreed that "By presenting what are, standing alone, essentially pornographic images as plaintiff's works of art, without noting that the images are merely details from larger composite works, the pamphlet is libelous per se. The court held that this higher standard had not been met. For the text of this court decision, see Wojnarowicz v. American Family Association745 F. Do you agree with Wojnarowicz that presentation of his work out of context was defamatory?

What considerations support the artist's claims? What arguments can be raised against the artist's claims? The classic example of speech which is not protected by the First Amendment, because it causes panic, is falsely shouting "fire" in a crowded theater. We can imagine works of art which might cause real panic among the audience, perhaps a contemporary version of Orson Welles' War of the Worlds, which caused considerable panic when it first aired on the radio, and in turn was based on H.

Wells The War of the Worlds. Imagine that a guerilla theater group staged a fake emergency which a reasonable person would expect would almost certainly cause real panic among the audience. This might be a theater production during which the director plans to yell "fire" and cause a stampede by the audience to the exit doors. Should this exercise of freedom of expression by artists be protected by the First Amendment?