THE LIBERTARIAN ENTERPRISE
Number 672, May 27, 2012
"Choose to be free"
Article 2 of the Bill of Rights Series: "The First Amendment"
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.
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.
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. "
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. "
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.
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.
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.
"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
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."
Was that worth reading?