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L. Neil Smith's
Number 672, May 27, 2012

"Choose to be free"

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Article 2 of the Bill of Rights Series: "The First Amendment"
by Neale Osborn

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Attribute to L. Neil Smith's The Libertarian Enterprise

The following is the third article co-written by Myself (Neale Osborn) and Lee Norton. Remember, neither of us claim to be Constitutional scholars or lawyers.

As promised:

First, we present the 1st Amendment, then we shall disect it.

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.

First off, this amendment does not use any terms that seem to have changed meanings over the past 2 plus centuries, so we don't need to define any words in the terms of the day. So, on to explaining each section.

Congress shall make no law respecting an establishment of religion
For some reason, people have interpreted this to mean that Congress (and by extension, anything funded by government of any size) cannot mention religion. What it really means is far simpler—Congress cannot establish a state religion. The Anglican Church, also called the Church of England, was the legal church of England. It was supported by tax dollars. At certain times in history (see the 30 Year War for examples) the policy was "the religion of the King is the mandatory religion of the people." This led to such wonderful events as the Inquisition. It ALSO led to the state church (whichever it might be) to wield incredible power. To prevent this, the Founding Fathers chose to make a state religion impossible.

The most definitive test of any legislation involving the establishment clause that I could find was in Lemon v. Kurtzman. That test was three pronged.

"Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243(1968); [403 U.S. 602, 613] finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674. "

or prohibiting the free exercise thereof;
The fact that they didn't want a state religion did not mean they were opposed to religion. Some of the Founders were from certain sects that had been persecuted for their religious beliefs, and some were even deists (agnostics) who felt there was a Creator, but subscribed to NO religion at all. These people required that the government be prevented from sponsoring any form of persecution, and used this portion to protect religious freedom. Neither of these prevent the use of the term "In God We Trust" on money, the display of the Ten Commandments in a court, voluntary prayer in public schools, or invocations to a deity at school or government events. What they DO do, however, is prohibit you from being forced to participate in the invocations or prayer. In the opinion of this author, this SHOULD negate all laws against polygamy, as long as all participants are VOLUNTARY participants. Again, in my opinion, it could NOT be used to protect pedophelia, even if religious doctrine allows it, because children are not considered capable of giving consent. Animal sacrifices are (or should be) protected, and an argument could be made to allow human sacrifice IF the "victim" is consenting. Of course, getting THAT one upheld in court would be quite difficult!

One of the most interesting cases I found in this regard, among a host of confusing and contradictory court decisions, was Sherbert v. Verner. In this case, the court held that Sherbert could not be compelled to forgo unemployment payments because she would not work on Saturdays due to her religion.

"Appellant, a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. The State Commission denied appellant's application on the ground that she would not accept suitable work when offered, and its action was sustained by the State Supreme Court. Held: As so applied, the South Carolina statute abridged appellant's right to the free exercise of her religion, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 399-410. "

or abridging the freedom of speech,
This one gets ticklish. The argument has been made that yelling "FIRE" in a crowded theater is legally prohibited, therefore freedom of speech IS abridged by law. This author is NOT a legal scholar. That being said, I would argue that as long as no one is harmed physically, you cannot prohibit this in a publicly owned venue. However, on private property, as long as the prohibition is posted, it is perfectly legal to prohibit ANY speech the property owner desires. This is the basis of portions of the Code of Honor enforced on NewsVine articles and seeds. The owners allow people on their private property, providing the people follow certain rules. Violate the rules, and the speech where you do so will be removed. This doesn't violate your rights, since you are on private property. I admit that it may well suck, but it does not violate the 1st Amendment.

It is widely held throughout case law on this clause that prior restraint is prohibited. However, that, as with everything else, is not absolute. It is in Schenck v. United States that we encounter the oft paraphrased term:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic"

Although Schenck was not about theaters, it cemented the proposition that all speech must be taken in context of its usage, both in venue and effect.

or of the press;
This means the government cannot prevent the press from printing stories. The government cannot legally force the press to pull or alter a story, nor force the press to present a story. This one is stomped all over every day. The government does, in fact, do it's damnedest to squelch stories they do not approve of, often tries to get stories written the way they approve of, and have been known to use the intimidation factor to force compliance. Using the entirely legal method of simply denying access to certain information (at least, in a timely manner) is successfully employed fairly often. Fortunately, the Freedom of Information Act has freed up access to many of facts the press desires to present. On the flip side, the press IS limited from knowingly presenting lies as facts (known as libel when applied to people or organizations).

Throughout all of the case law I have looked at on this Amendment, this appears to be the most sacrosanct clause of all.

"Yet, it does seem clear that to some extent the press, because of the role it plays in keeping the public informed and in the dissemination of news and information, is entitled to particular if not special deference that others are not similarly entitled to, that its role constitutionally entitles it to governmental "sensitivity," to use Justice Stewart's word."

Perhaps the best assistance I can offer here is to refer the reader to Footnote 37 in the source below.

or the right of the people peaceably to assemble,
To me this seems simple. People have the right to get together in groups, be it churches, clubs, on the streets, or to march in parades. I consider the requirement for a permit to assemble a violation of the Amendment. A parade permit, due to the need to use public roads, is (barely) acceptable. If the permit is denied for ANY reason, other than because someone else is using that road that day for a parade, is not acceptable. Neo-Nazi, KKK, New Black Panthers, or Al Qaeda, until someone actually breaks a law, the permit must be issued. I confess to being unhappy with parade permits in general, but I understand them.

I find it interesting that the right to assemble and the right to petition were once entwined with the right to assemble being the right to assemble for the purpose of petitioning for redress of grievances. Thus, the right to assemble was subordinate to the right to petition. Today, that is no longer true and both carry equal weight.

"The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question... is not as to the auspices under which the meeting is held but as to its purposes; not as to the relation of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects."

A case that is sure to stir controversy is Hague v. CIO. It held that the right to assemble was not absolute. In addition, it held that the rights of aliens to assemble were protected, as well.

"The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."

and to petition the Government for a redress of grievances.
It is self evident that in a free society, the people MUST have the right to demand of their government a redress (a hearing of and expectation of problems with governmental actions and regulations) of grievances. If the government were to deny the right to petition, then the government is not representative. There is no guarantee that the grievance will be corrected, but hte government MUST listen to the grievance and explain the reasons it will not be corrected if it will not (or CAN not) be corrected.

"Furthermore, the right of petition has expanded. It is no longer confined to demands for "a redress of grievances," in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. 211 The right extends to the "approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition."
Same source as directly above.

What this amendment means in toto is that the government is prohibited from making laws creating a state religion (supported by taxation and required attendance by taxpayers), preventing people from practicing their religion as written, preventing the press from gathering information and presenting it, preventing people from speaking their mind (as long as what they say is opinion or provably true—NOT to tell lies about people), or preventing people from assembling in groups or demanding governmental attention to problems.

The first article in this series was published in Issue 669

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