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About this blog: In January 2002 I started writing my own online "newspaper" titled "The San Ramon Observer." I reported on City Council meetings and other happenings in San Ramon. I tried to be objective in my coverage of meetings and events, and...  (More)

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Interpreting the First Amendment

Uploaded: Mar 7, 2015

James Madison wrote 17 Amendments to the original Constitution. Ten were ratified by the states under the name, "The Bill of Rights." The purpose of these amendments are described in a Preamble to the Bill of Rights.

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

So the Bill of Rights was originally added to the Constitution to limit Federal control over the states and increase citizen support.

Throughout the 20th Century most of the rights in the Bill of Rights, and all of the rights in the First Amendment, were expanded to include state governments and even local governments. This blog looks specifically at the rights and protections in the First Amendment.

Amendment 1
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.

Let's break down each phrase in Amendment 1 to clarify what it means and how it has been interpreted or applied over the years.

1. Congress shall make no law ? That originally meant the Federal Government. State governments were free to make whatever laws they chose until 1925 when the Supreme Court ruled that a portion of the First Amendment also applied to states.

2. . . . respecting an establishment of religion ?The government cannot mandate a national or state religion.

3. . . . or prohibiting the free exercise thereof; - Citizens may practice their religion as they choose or not practice any religion at all.

3. . . . or abridging the freedom of speech, - Citizens can criticize governmental organizations or individuals without fear of being imprisoned.

4. . . . or of the press; - Citizens can publish in print, or now, online comments critical of the government or individual office holders.

5. . . . or the right of the people peaceably to assemble, - You can get together with other people to picket but not riot.

6. . . . and to petition the Government for a redress of grievances. - You cannot be arrested or incarcerated for signing a petition or writing a letter to the President or Congress or even your local City Council or Mayor, but you can be ignored.

However, freedom of speech doesn't give everyone the right to say anything at all about anyone they want to attack. The First Amendment protects citizens from government persecution, but it does not prevent law suits or civil actions. Criticizing your employer or boss can result in being fired.

Freedom of the Press doesn't mean freedom to malign. A newspaper can publish an editorial criticizing a government official, but the publisher can still be sued for slander. As long as the criticism is factual and civil, the First Amendment protects against government retaliation, but a hostile editorial might go over the line.

The American Civil Liberties Union (ACLU) defends our First Amendment rights, often to the objections of citizens who believe they go too far. But the purpose of the First Amendment is to protect minorities from the tyranny of the majority. That in a nutshell is what the First Amendment is about. You do not have to be like everyone else; but that doesn't mean everyone else has to accept you for it.
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Comments

 +  Like this comment
Posted by Damon, a resident of Foothill Knolls,
on Mar 11, 2015 at 9:57 am

I think that the biggest misunderstanding that many people have about the 1st Amendment in regards to free speech is that the 1st Amendment is a restriction on government, not on citizens or private organizations. If a dinner guest comes into your house and starts making racial slurs against other guests, the guest can't claim that the 1st Amendment prevents you from throwing him out of your house. Similarly, in the case of the recent news story about the racist songs of certain Oklahoma University students, the 1st Amendment does not protect them against being thrown out of the fraternity by the national leadership of the SAE fraternity because the SAE fraternity is a private organization and not a part of the government. The expulsion of the students by the President of Oklahoma University is a trickier matter because Oklahoma University is a public university directly connected to the state. If it were a private university then, again, the 1st Amendment would not apply at all, and their would be no possibility of their using a 1st Amendment "free speech" defense against being expelled.


 +  Like this comment
Posted by San Ramon Observer, a resident of San Ramon,
on Mar 11, 2015 at 12:18 pm

San Ramon Observer is a registered user.

Damon,

You are absolutely correct. This is a very common misconception about the 1st Amendment. A lot of bloggers and posters on the web were saying that Donald Sterling should not have been forced to sell his basketball team, but the NBA is not part of state or Federal government. It is a private organization.

The Bill of Rights was originally written to protect states from Federal control. The goal was to get all of the states to sign on to the Constitution and become United States instead of separate countries. Otherwise America might have turned into another Europe with ongoing wars between the different "Countries."

You are also partly correct about the University of Oklahoma. It is a State University, and the freedoms granted in the Bill of Rights are required by State Governments. However as a University, I believe they can expel students for violating the University's Code of Conduct. This is usually included in the Student Handbook with penalties for violating it. So by enrolling in the University students agree to abide by the Code of Conduct. The State of Oklahoma cannot imprison these students for their misbehavior but the University can kick them out.


Roz


 +  Like this comment
Posted by Damon, a resident of Foothill Knolls,
on Mar 11, 2015 at 12:32 pm

Roz-

The issue of how far free speech is allowed to go on a public campus has always puzzled me. You're right in saying that there is generally a university "Code of Conduct", but can a public university's "Code of Conduct" in itself really trump the 1st Amendment? I think that there must be something more here, and actually I found a pretty good essay in the Chicago Tribune by a Harvard Law professor who analyzed the issue at the University of Oklahoma. The key is the university's responsibility and duty to protect all of its students from a hostile educational environment under Federal anti-discrimination laws. The professor does a good job of weighing this responsibility against the 1st Amendment in order for a public university or any university to be able to effectively function as a learning community for the benefit of all of its students. Here's a link to the essay below:

Oklahoma's right to expel fraternity students for racist chant (Chicago Tribune): Web Link


 +  Like this comment
Posted by San Ramon Observer, a resident of San Ramon,
on Mar 11, 2015 at 1:18 pm

San Ramon Observer is a registered user.

Thank you so much for the link, Damon. That helps explain a lot.

Roz


 +  Like this comment
Posted by Donna Kerger, a resident of San Ramon,
on Mar 11, 2015 at 3:24 pm

Roz,

Great comments by you and Damon. I would personally invite you to attend the Exchange Club's College Scholarship and Essay Program. Two outstanding speakers will discuss the First Amendment and its impact on the rights of citizenship on March 18, 2015 beginning at 7:00 PM to 8:00 PM at the Canyon View Banquet (Dining) Hall, 680 Bollinger Canyon Way, San Ramon, CA 94583.

Cheryl Cook-Kallio, 38 year veteran and teaches AP U.S. History and AP Government/We the People at Irvington High School in Fremont, CA. She is nationally engaged in the conversation for the need for increased civic education in our schools. She served the Hon. Dianne Feinstein as a Madison Congressional Fellow. She also served eight years as a councilmember for the city of Pleasanton. Currently serves on a state task force advisory board for civic education and the National iCivics Teachers? Council founded by former Associate Justice Sandra Day O.Connor.

John Murphy, Senior Attorney (retired) California Supreme Court (Chambers of Justice Joyce Kennard). A founder of the Donald P. McCullum Youth Court, a restorative justice program that provides an opportunity for first time youth offenders to participate in a peer-led youth court, health/life-skills workshops and leadership training. Served as a member of the White House Cabinet Council on Health Affairs--Health Policy and Economics Working Group.

I am hoping your readers will also pass this information on to any high school student interested in coming and applying for a college scholarship.


 +  Like this comment
Posted by San Ramon Observer, a resident of San Ramon,
on Mar 14, 2015 at 3:23 am

San Ramon Observer is a registered user.

Donna,

I'd love to come. I don't like driving after dark anymore, but that's close to my house. Isn't that just up the hill on Bollinger in the strip mall on the left? When should I be there? I starting a couple of Orientation Workshops for University of Phoenix on Wednesday, but I should be able to post my required number of comments by 7 pm. When should I get there and how late will it end?

Roz


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