Strict Scrutiny (part three): 1st Amendment Exceptions

The 1st Amendment is written about as clear and concise as can be.  No exceptions are provided:

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.

That’s five really important rights all tucked into one small sentence. Freedom of Speech Freedom to establish a religion;  freedom to exercise your religion;  freedom of speech;  freedom of the press;  freedom to protest.

Constitutional fundamentalists read the Constitution strictly and argue that one must never interpret the document or read something into it that isn’t there.

Let’s take Freedom of Speech as an example.  Clear as day, right?  No interpretation needed.  No exceptions are allowed.

Here’s where we pause for laughter.

There are lots of exceptions to your right to free speech, and these are exceptions that just about everyone will agree are a good idea.  Most of these exceptions existed when the Constitution was written.  For example:

Time, Place, and Manner.  Your right to speech can be limited as to when and how you can exercise it.  You can’t stand in the middle of a courtroom during a trial and give a speech about taxation.  You can’t have a rally at 3 am using loudspeakers.  You can’t disrupt a military funeral claiming that “God hates fags.”  The time, place, and manner of your speech can be regulated.

Clear and Present Danger.  You have the right to speak out against the government, but if you’re inciting a riot, you can be stopped and you can’t claim they are violating your right to speak.  (It’s not the speech they are stopping, after all, it’s the violence you are encouraging.)

Defamation.  Libel and slander are not protected.  You cannot commit these crimes and then claim, in your defense, that the 1st amendment protects you.

Obscenity.  Obscene works are not protected, although there are very few cases about obscenity these days because of the proliferation of adult websites.  Still, the exception is there.  This is different from Child Pornography.  Things that would not be considered obscene if it involved adults would still be prohibited if children are involved.   In a sense, when you are convicted of child pornography, it’s because you are conspiring in the assault on the child.  (That’s the key — artwork featuring children is not prohibited, for instance, although I certainly wouldn’t want to have anything to do with you if that was the kind of thing you enjoyed.)

Commercial speech.  Advertisements can be regulated.  You can be punished for making false claims about your product and you can’t claim in your defense that your 1st amendment rights were violated.

Reasonable governmental interests.  You can’t reveal government secrets that would place our agents or troops in danger.  You don’t have absolute freedom to publish whatever you want in a school newspaper.  Radio and television airwaves can be regulated.  If you’re a government employee, you may be limited in what you can say about politics.  Your speech can be limited when you are in the military or in jail.  The government can restrict what lawyers can say.  (Seriously, we can be punished for violating our ethical requirements by revealing confidential information, for instance.)

Anyway, I could spend an entire semester on these exceptions (and did, when I was in law school).

And this is just for the Freedom of Speech part of the 1st Amendment.  I haven’t even mentioned the other rights in the 1st, all of which have exceptions.

“But wait,” you say.  “What about governmental secrets that don’t place anyone in danger, like in Snowden’s case?  What about restrictions on time, place and manner that are unreasonable?  What if I disagree with the government as to what is obscene?”

Aha.  Now you see why we need courts and lawyers.  Every case is different, and there are many shades of gray in the law.  What applies in one case may not in the next.

And that is why you must laugh at any Constitutional fundamentalist who proclaims that there is one right answer for every circumstance and that the Constitution does not need any interpretation.

Part four next:  If there are this many exceptions to just one part of the clearly-worded 1st amendment, why can’t there be exceptions to the poorly-worded 2nd amendment (especially since it’s the only amendment that contains the words “well-regulated”?)

Click here to read part one and start at the beginning.


One thought on “Strict Scrutiny (part three): 1st Amendment Exceptions

  1. Pingback: Right to be Threatening > Right to Not Get Shot |

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