"In Germany the Nazis came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."
Attributed to Martin Niemoeller
FIRST AMENDMENT RIGHTS
BY
AVI HEIN
Written: December 1996
Table of Contents
Chapter 1
THE FIRST AMENDMENT
Chapter 2
FIRST AMENDMENT FREEDOMS
Chapter 3
HATE SPEECH
Chapter 4
STUDENTS' RIGHTS
Chapter 5
RESPONSIBILITIES
SOURCES USED
"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."
Amendment I of the Constitution of the United States of America in the Bill of Rights
The First Amendment is a controversial amendment, yet it is also one of the few amendments that is short, clear, and concise. According to the amendment, Congress can not pass even a single law that in any way, shape, or form limits the power of any person or group of people to speak or to publish their views, no matter how controversial (Krusch). First Amendment rights include freedom of speech, association, and assembly. First Amendment rights also include freedom of the press, and freedom of and from religion.
The power of the First Amendment was originally limited to the federal government while the states were permitted to restrict speech at their whim. Since the passing of the Fourteenth Amendment, however, neither the state nor the federal government has been allowed to restrict neither speech nor expression.
The First Amendment has no fine print restricting the speech protected only to speech that the government likes. The First Amendment guarantees freedom of all speech and all expression, even if, in the words of Judge Felix Frankfurter, they "speak foolishly and without moderation (ACLU)."
"Under our Constitution, free speech is not a right that is given
Many people are responsible for protecting rights and ensuring a free and just society exists in this country. The Constitution is the most important thing in making sure that America is free because it is what grants us our fundamental freedoms. The government is responsible for protecting our rights and ensuring a free society exists in America. That is the most important job of government. Most importantly the individual people are responsible for making sure America remains free. The people hold the most responsibility for checking government and making sure government does not overstep its bounds.
First Amendment freedoms make life and society better. These freedoms accomplish this because the First Amendment prevents government from controlling the speech of its population. Free speech and expression is at the forefront of a democratic society, and without these important freedoms governments can pose undue restrictions on its citizens.
While it is true that First Amendment freedoms make life and society better, it is also true that these freedoms cause problems in life and society. Many of these problems, however, are not due to the amendment itself, but rather the animosity towards it when controversial speech is spoken.
The First Amendment is very clear in meaning. It contains no fine print restricting it. The First Amendment must not be limited because to limit it would be to limit and dilute the powers and purpose of the Constitution. The First Amendment protects all speech and not just popular speech. The purpose of the first amendment is to protect the very kind of speech that people want to ban. There should be no limitations to the freedom of speech and expression as protected in the First Amendment. Many people have tried to limit the First Amendment, and thus limit the Constitution. Speech can not harm or hurt a single person. Only people can hurt people. Guns kill people, speech can not kill a single person. Speech is useless without actions, and only actions that restrict other's rights should be limited. Speech advocating harm and even murder is protected under the First Amendment. It can not be argued, however, that the actual act of harm and murder is protected anywhere in the Constitution or in any other law. Speech advocating the overthrow of the United States government has often, unconstitutionally, been restricted. However, one of the principles of democracy, according to John Locke, is that people retain the right to alter and abolish the government once it becomes destructive and the people have the power to institute a new government. Who is to say when a government becomes destructive? The government itself? That is what many people believe. In the case of Dennis v. the United States, when Congress passed a law that made it illegal to teach or print materials advocating the overthrow of the United States, Eugene Dennis was unconstitutionally charged with the "crime" of conspiring to form groups to teach the overthrow of the government. When the Declaration of Independence says
"
it protects the right of speech advocating the overthrow of the government. In the Dennis case, as in other cases, it is Constitutional and even appropriate to advocate the abolishment of the United States government if a person feels the U.S. Government has become destructive. The people advocating the overthrow of the government take a risk that no one else will agree with them, and that the majority believe that this government is not destructive. Then the government will not be overthrown. The First Amendment guarantees that people have a right to state their belief that the government is destructive. Government should not silence anyone regardless of their beliefs, even if they advocate the overthrow of the government.
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John Stuart Mill, On Liberty, 1859
First Amendment rights are absolute and should not be limited until someone speaks to the extent whereas they restrict another person's rights, whether First Amendment rights or other Constitutional rights. Even then the speech and expression should not be restricted, but rather the violation and restriction of others' rights.
Speech that is hateful and demeaning to others is protected under the First Amendment. Many people believe that "hate speech" should be restricted by the government. These people are wrong. Free speech rights are absolute. To restrict the speech of one group or individual jeopardizes everyone's rights. The Constitution does not authorize the government to restrict or allow speech based on the content of the speech. If the government had that power then we would all be in danger. Popular ideas do not need protection from government, but rather unpopular and offensive ideas need such protection (ACLU). Even though you may disagree with what someone says, they still have a constitutional right to say it. As Voltaire said: "I detest what you say, but I will defend to the death your right to say it."
Frank Collin is an American. He is also a fascist, a racist, and a Nazi. Frank Collin wants to destroy freedom. Frank Collin hates and wants to deport African-Americans, Hispanics, and Jews. Frank Collin supports Nazi ideals and principles. He worships Adolf Hitler. Frank Collin accomplishes his ideals through his support of nazism. He gets his power through the power of the swastika and the image it portrays. Frank Collin hates minorities. Frank Collin hates Jews. Frank Collin is Jewish. Frank Collin's real name is Frank Cohn. His father is a Holocaust survivor. Frank Collin is the child of a death camp refugee. Yet Frank Collin hates Jews. He hates himself. (Hamlin, 1-6)
In 1977 Frank Collin, former leader and founder of the National Socialist Party of America (NSPA), requested permits from several Chicago suburbs to demonstrate. Most of these suburbs ignored the request. The government of Skokie, Illinois, however, said that if the NSPA paid $350,000 in insurance the rally could be held. The purpose of this requirement was to prevent the NSPA from marching. Most of the inhabitants of Skokie are Jewish. Many are either Holocaust survivors, children of Holocaust survivors, or Jews with close relatives who perished in the Holocaust. It is understandable and easy to see why the inhabitants of Skokie did not want Nazi's in their town. The inhabitants of Skokie did not want a fight, however that's exactly what they got.
The government of Skokie was the only one that responded to Frank Collin's request. Frank Collin wanted a fight. He really wanted to march in Chicago's Marquette Park so, he figured, if he started a fight he could get what he wanted -- a place to speak his views. Mr. Collin did not want to pay the insurance fee and he felt it was unconstitutional so Frank Collin went to the Illinois ACLU. At that time the National Executive Director of the ACLU was Aryeh Neier, a German Jew whose family perished in the Holocaust at the hands of the Nazi's. Frank Collin was defended by David Goldberger, another Jew (Neier, 38, 50). Aryeh Neier and David Goldberger defended Frank Collin. They defended a Nazi. Aryeh Neier and David Goldberger were not defending the Nazi's beliefs but rather the Constitutionally protected speech that Frank Collin and his organization were espousing. As Aryeh Neier said:
"Keeping a few Nazi's off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened."
In the end Frank Collin did not march in Skokie. Sixteen months after the controversy began it abruptly came to an end. On July 9, 1978, Frank Collin and about twenty-five of his followers marched in Chicago's Marquette Park. Since the NSPA could march in Chicago they canceled their march in Skokie (Neier, 169). However, because the ACLU chose to defend the free speech rights of Nazi's many people have abandoned their support for the ACLU because they believe that the first amendment excludes hate-mongers such as Nazi's and the KKK. Many people are wrong.
Case Study: Tinker v. Des Moines Independent Community School District Et Al.
In December 1965 a group of students including Mary Beth, Christopher, and John Tinker wore black armbands to their schools. They did this to protest the war in Vietnam. They were asked to remove their armbands and they refused. They were all sent home and suspended from school until they would not wear their armbands. They did not come back to school until January 1966, after the period for wearing armbands had expired. The Tinker family sued for an injunction. The court ruled in favor of the Tinker's and students. In the ruling from the court it was stated that:
"It can hardly be argued that either students or teachers shed their Constitutional rights to freedom of speech or expression at the schoolhouse gate."
The court decision went on:
"In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligation to the state. In our system, students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.
Tinker v. Des Moines
The sole responsibility citizens have that accompany First Amendment rights is to respect these rights. Citizens must respect the rights of others to express their views regardless of whether they agree with them or disagree with them. Americans must respect the rights of others to dissent from the popular opinion and must allow them to criticize the government of the United States of America.
"America isn't easy. America is advanced citizenship. You've got to want it bad 'cause it's gonna put up a fight. It's gonna say 'You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you've spent a lifetime opposing at the top of yours. You want to claim this land is a land of the free? Then the symbol of your country can not just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.'"
President Andrew Shepard in An American President
That is America. America is accepting the validity of opinions in which you disagree. America is only a free country when people who despise America and who want America destroyed and people who disagree with public policy, when they are allowed to express their views are free to do so. Only then is America truly a free country.
The American President. Dir. Robert Reiner. Perf. Michael Douglas, Annette Bening, Martin Sheen, David Paymer, Samantha Mathis, Michael J. Fox. Columbia Tri-Star, 1996.
"Case Name: Tinker v. Des Moines School Dist., 393 U.S. 503." URL: http://neptune.fedworld.gov/cgi-bin/waisg
¼docid=793802235+0+0+0&waisaction=retrieve (20 Dec. 1996)."Freedom of Expression." ACLU Briefing Paper. URL: http://www.aclu.org/library/pbp10.html (21 Dec. 1996).
Hamlin, David. The Nazi/Skokie Conflict: A Civil Liberties Battle. Boston: Beacon Press, 1980.
"Hate Speech On Campus." ACLU Briefing Paper. URL: http://www.aclu.org/library/pbp16.html (21 Dec 1996).
Krush, Barry. "Understanding the First Amendment." Would the Real First Amendment Please Stand Up? URL: http://www.krusch.com/real/under.html (21 Dec. 1996).
Neier, Aryeh. Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom. New York: E.P. Dutton, 1979.