On July 4, 1776 The Declaration of Independence was adopted by the Continental Congress. Eleven years later on September 17, 1787 the Constitution was signed. The Constitution was written to replace the Articles of Confederation because it did not grant enough power to the federal government. However, the Constitution limited the power of the federal government. The purpose of the Constitution is to protect but not grant the natural rights of life, liberty, and the pursuit of happiness. The First Amendment in the Constitution is very important because it protects freedom of speech, religion and the press. The First Amendment also protects the right to assemble peaceably and petition the government. In this paper I will discuss the several occasions were our 1st Amendment rights have been tested.
The four landmark cases of Schenck v. United States, Gitlow v. New York, Dennis v. United States, Brandenburg v. Ohio has increased our freedom of speech rights. The bad tendency test was used to criminalize freedom of speech before Schenck v. United States. Justice Holmes first introduced the clear and present danger test during this case. The test determined when a state could constitutionally limit an individual ‘s free speech rights under the First Amendment. The United States argued by Schenck distributing pamphlets that were anti the war was clear and present danger. Schenck was convicted of all charges; however, his conviction was later upheld. The same problem arose with freedom of speech in the 1925 Supreme Court case of Gitlow v. New York. The anarchy law punished advocating the overthrow of the government by force. The bad tendency test was used to determine guilt in his case. The court said “it directed an uprising at some “indefinite time in the future” ( Lowenthal,2002). His conviction was also later upheld. The clear and present danger test was used to determine guilt in Dennis v. United States. Dennis was found guilty; however, his conviction was later upheld. Eighteen years later in the late sixties the turn of a century case of Brandenburg v. Ohio occurred in 1969. Brandenburg appealed his case to the Supreme Court and surprisingly won. This was a big change because freedom of speech cases that were brought up to the Supreme Court were never won. The Supreme Court held that the Ohio law violated Brandenburg ‘s right to free speech. To obtain there ruling the Court evaluated the speech acts in two ways. Speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and if it is “likely to incite or produce such action.” These rulings created an increase of freedom of speech rights.
For years after the signing of the Constitution, the government has found loopholes to impose prior restraints on publications from the press because of national security. For example in the case of Near v. Minnesota. Jay Near published a spread in The Saturday Press in which he criticized and vilified local officials. Under the Public Nuisance Law, an injunction was obtained by local officials to prevent Near from continuing to publish in the newspaper. The case was brought to the Supreme Court, the question before the court was whether the Public Nuisance Law violated constitutional rights, pertaining to the right of freedom of the press. The Supreme Court, in June of 1931, in a 5 to 4 decision ruled in favor of Jay Near. This ruling because of incorporation was able to be applied to the state level. Near v. Minnesota is a landmark case because it restricted the government from prohibiting or censoring a publication in advance except in rare cases. When prior restraint is allowed, it in turn, limits 1st Amendment rights because it gives the government a right to suppress certain material
Professor Lowenthal in the book Present Dangers criticized Holmes and Brandeis. “The First Amendment cannot possibly have been intended to protect political movements dedicated to the overthrow of republican government…”( Lowenthal,2002). He believed that Justice Holmes and Brandeis claimed that the 1st Amendment made it acceptable to do such things like overthrow government. He thought that the two Justices misinterpreted the 1st Amendment. Lowenthal makes a comment about a “proletarian dictatorship” which is a government that has no resistance or objection, however, this would conclude to limiting or eliminating our rights and discarding the Declaration of Independence. Holmes and Brandeis in Lowenthal’s opinion created a proletarian dictatorship in their ruling, According to Lowenthal, the First Amendment does not protect enemies of freedom “it throws no mantle of protection whatsoever over the enemies of freedom” ( Lowenthal,2002). Lowenthal feels the First Amendment should be understood more in the context of preserving Republican government. Lowenthal sides with Clor on obscenity, Clor was not willingly to allow obscenity because he valued public morality. Dershowitz is willingly to allow obscenity in order to protect 1st amendment rights.
In 1984 by George Orwell, we are introduced to a character named Winston Smith. Winston lives in a totalitarianism government in the futuristic city of London, in the nation of Oceania. Mr. Smith is a low-ranking member of the ruling Party in London. The Party controls everything Winston does and watches him through telescreens. Big Brother, the Party’s leader is pictured everywhere, which is a constant reminder of the Party’s presen
ce. The Party controls everything in Oceania; it prohibits free thought, sex, and any expression of individuality. The Party has also rewritten history and language. To prevent political rebellion the Party is forcing the implementation of an invented language called Newspeak. Newspeak eliminates all words related to it rebellion. Rebellious thoughts are considered to be an illegal act called a thoughtcrime.
Winston frustrated by the tyranny and unyielding control of the Party, starts to go against the Party. Winston illegally purchased a diary in which he writes his criminal thoughts; thoughtcrime. He also begins a sexual relationship with a dark-haired girl named Julia. Winston rebellious actions have made him a target for the Party. Sooner than later, the Party puts a stop to Winston’s rebellious behavior and sends him away to the Ministry of Love. In the Ministry of Love he is brainwashed until he finally accepts the Party entirely and learns to love Big Brother. “Who controls the past controls the future. Who controls the present controls the past”. This Party slogan appears twice in the novel, the slogan is an important example of the Party’s technique of using false information to control the human mind by psychological manipulation. Winston dies at the end of the story, figuratively. Winton losses his individuality and all the characteristics that created his unique personality vanished at the Ministry of Love, hence the Party gained control of Winston Smith. You can see this when Winston sits at the Chestnut Tree Café and traces “2 + 2 = 5”. Early in the novel, Winston stated “Freedom is the freedom to say that two plus two make four.”After the lost of his mind, Winston can only regurgitate false claims that the Party has now instilled in him.
1984 is written with the purpose of warning readers of the dangers of totalitarian government. The title of the novel was meant to indicate that the story represented a prospect that had high feasibility of occurring in the near future. Orwell’s portrayal of a state in which government monitors and controls every aspect of human life is not far fetch from the current governments seen today. This novel shows how valuable having a first amendment. Without first amendment rights, Americans would be also victims to prior restraints by the government. We also would not have the luxury of being able to legally say what we wanted or think what we wanted in a government based on totalitarianism. This novel is a reminder of why we should never take our first amendment rights for granted.
John Leo in an article titled Free Inquiry? Not on Campus about the ongoing censorship and prior restraints on college campus. Ironically, you would conclude that a college would be a place to use your first amendment rights however, according to this article it is highly never the case. John Leo writes “The censors have only grown in power, elevating antidiscrimination rules above “absolutist” free-speech principles, silencing dissent with antiharassment policies, and looking away when students bar or disrupt conservative speakers or steal conservative newspapers”(Leo,2007). He describes the college campus as a place where you have to walk on eggshells because anything you say may or can be used against you and is repressive in nature. He noted a situation where a contract was signed by a University with the shoe company Rebook. “The contract included a clause forbidding negative comments on Reebok products by any “University employee, agent or representative” (Leo,2007). Leo highlights that this was another way that Universities were chilling freedom of speech by adding rules and policies that went against it.
The article Bloomberg, at Harvard, blasts Ivy League ‘liberals’ for ‘trying to repress conservative ideas’ talks about the problem of limiting freedom of speech on college campuses. Bloomberg stated that freedom of speech is “perpetually vulnerable to the tyrannical tendencies of monarchs, mobs, and majorities. And lately, we have seen those tendencies manifest themselves too often, both on college campuses and in our society” (Strauss,2014). Bloomberg speech was intended to bring light on the fact that college campuses have not been stressing diversity, tolerance, or encouraging opposing ideas. They have in turn been limiting ideas and creating a environment that is opposite of what the college was made to do. A college should be a place of ongoing debate, it should be a place of diversity, and it should be a place of free speech. Bloomberg believes Harvard and other colleges have become intolerant.
The First Amendment is here to protect liberty but not to license the abuse of liberty. The First Amendment is very important because it protects freedom of speech, religion and the press. The First Amendment also protects the right to assemble peaceably and petition the government. Understanding and interpreting the First Amendment has been hard throughout the decades. The cases and examples talked throughout this paper highlighted how the 1st Amendment may be interpreted differently or even ignored. However the rights set up in the 1sr Amendment are for everyone and we cannot limit them. If we limit these rights we are eliminating what the 1st Amendment and Constitution is here to protect and that is our rights. We cannot be trustful of government when it comes to limiting 1st Amendment rights because this gives the government too much power. Our founding fathers did not base our government in this way so we should not try to limit freedoms we have because we are scared of what others might do with such freedoms. The first Amendment rights are here to protect liberty.