There are a few thin pieces of paper that have been given the job of keeping America the land of the free.
These parchment papers are called The Constitution of the United States of America. Among the key provisions of this centuries-old document, added on four years after its original formation, is a paragraph called "The First Amendment". It's supposed to protect us.
But suppose someone were to tell you that around 80 years ago, the text of the First Amendment was lifted out of the Constitution and replaced with a new version, and that over the years, this version was itself replaced with another, and so forth, again and again, with its protections eroded with each subsequent revision. What would you do?
If you're like the average American, you'd probably laugh. This is an idea not only ludicrous to contemplate, but in this day of wide-open media exposure, a virtual impossibility, especially since those that would most be affected by this alteration (the media), would be the most likely to report it: power + motivation = transmission of information. If this happened, you'd know about it!
If you're not like the average American, however, you'd decide to ignore this initial reaction, and check for yourself. You'd go to your copy of the Constitution, and this is what you'd read:
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.
You'd then take things a step further, and you'd check this version against a photocopy of the original handwritten version. Sure enough, you'd find they match. You'd breathe a sigh of relief. The First Amendment is safe after all, so totalitarianism can go skulking back into its corner and lick its wounds. Triumph!
Alas, I hate to be the bringer of bad tidings, but you need to take things even one step further. The First Amendment is, after all, a law, and a law is a law on paper. Yet the observance of this law - what turns writing into reality - is in the hands of people. And what the paper says is less relevant than what the people enforcing it claim that it means. If, for example, a law says "A means A" (where A is illegal), and the enforcers state that "B also means A", you're going to be arrested for B, as well as for A. Ouch! If this happens, the real law is that both A and B are illegal, quite without regard to what's on paper. Scary, huh?
Well, it's possible to imagine such a thing happening somewhere at some time with a law of lesser status, but how could such a thing happen with a "high-profile" law like the First Amendment? This first Amendment is not "obscure" or "difficult to understand", and it's not "fine print". Not only is the Amendment right out there in the sunshine, but there are several other reasons why the existence of what would be (in effect) a constitutional coup d' etat would be absurd:
1) Desecration of the First Amendment would affect the media, who presumably would be the first to report it and defend it against dilution;
2) The First Amendment is absolute ("no law"); how can an absolute term be evaded? The Amendment would thus be defended by "strict constructionists" of the Constitution.
3) The First Amendment is one of the most critical for maintaining the idea of other rights; since all other rights flow from it, lovers of other rights would come to its defense.
4) The First Amendment is supposedly one of the main constitutional provisions that separates us from "communist" or "totalitarian" countries (which control the flow of information), and so is more likely to be defended by patriotic Americans who make up the majority of citizens ("In America, we have the right to say anything we want.").
5) Most people "do" speech on a day-to-day basis (as opposed to housing soldiers for the military), so more people would be interested in changes to this amendment from a purely self-interested basis than other, less prominent amendments.
6) Protection of the First Amendment is supposedly on the agenda of the American Civil Liberties Union, meaning that there are supposedly funds allocated for its protection.
7) The First Amendment is value-neutral, and appeals to "conservatives", "liberals", "whites", "blacks", everybody at one time or another. That's a pretty good coalition.
It would seem that the massive numbers of people that would be opposed to the aforementioned dilution would reduce the probability of this dilution to almost nil. It would seem so, but that isn't the end of the story.
You see, unfortunately for the First Amendment, it too is a law, and like all other laws it is subject to interpretation. If changes to the text of the First Amendment were to be introduced (unlikely as this scenario may seem), they would make their unwelcome introductions via the interpretive mode. And these interpretations would not be made out there in the sunshine, like the Amendment itself, but rather would take seed (later root) in the gloomy night of verbal obscurantism, linguistic filters in the haystack of hundreds of thousands of pages of legal documents (written over a span of many decades). While there's an antidote here - that if someone tells you the sun is green, they should be told to take off their sunglasses - most people won't get the message.
For purposes of this discussion, it ought to be noted that there is a thick line between interpreting and ignoring a law, but it's a line frequently crossed. Take the following dialogue, for example:
Cop: (pulling Driver over) You were doing 80, and the speed limit is 65.
Driver: No problem, officer. I simply interpreted the term "65" mph to mean "80" mph. You see, I had a compelling private interest to go faster, and so I balanced the interests of the State against my interests - and the State came up short.
Cop: (filling out ticket) Hey, haven't I seen you on the Supreme Court?
You see, when the Government applies law to people, they don't allow alternative "interpretations" which are actually re-writes of statutes. And a good thing too. If they did, we wouldn't have law, we'd have anarchy. And we'd have the consequences that flow from the exercise of naked, unharnessed, anarchic power.
Unfortunately, not all laws are well-framed. Some laws, if strictly observed, would lead to absurd consequences, consequences that would lead many people to question the law, and ultimately to disrespect for the law. Assuming that a law is poorly-framed (e.g., a speed limit on the interstate highway of "5 mph"), there are four possible remedies the enforcers of the law and the people under the law would have as an option:
1) Obey the law, and suffer the consequences.
2) Obey the law, suffer the consequences, but seek to amend the law.
3) Ignore the law; pretend it doesn't exist.
4) "Interpret" the law to mean what it "should" mean.
While some of us might decide to choose one or the other of these remedies, the United States Constitutition (the one on paper) has, in Article V, left only one remedy open to us: choice 2. Some may argue that this amending process is too unwieldy. Perhaps so, but the answer, again, is not to circumvent the process, but to amend it ("We the People"). That's what a Constitution is all about. The very least we should be able to say about a Constitution is that it is worth the parchment it's written on.
In this book, I will argue that the Supreme Court of the United States of America, supposedly the last bastion of defense for Constitutional clauses, has instead chosen choice 3, and more often, choice 4. They have taken this approach with virtually every significant clause of the Constitution. Consequently, the Constitution as it exists in practice is very different from the one in writing, and - much as it pains me to say this - not quite as enjoyable to read.
I have chosen to illustrate the Court's method of operation with an in-depth analysis of the First Amendment; specifically, the "speech" and "press" provisions. In this book, I will present extensive evidence that the Court has willfully and wantonly disregarded the Amendment's express provisions. I will also provide extensive evidence of unconstitutional legislation that is on the books as a consequence of this approach.
I have chosen to illustrate this phenomenon with the speech and press provisions of the First Amendment, because these provisions have a singular virtue: they are absolute, with the clearest of all constitutional meanings. If the Supreme Court can apply choices 3 and 4 with absolute provisions of a high-profile Amendment, just imagine what they can do with the vaguer, less prominent clauses.
To understand what has happened, let's first understand the speech and press provisions of the First Amendment (which hereinafter will be referred to simply as the "First Amendment"), in detail.