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Impossible: The Case Against Lee Harvey Oswald

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Understanding the First Amendment

When we analyze the words that make up the speech protection provisions of the First Amendment paragraph, we find a clear Constitutional directive: Congress cannot pass even one law that in any way, shape, or form limits the power of any person or body to speak or to publish.

From the standpoint of clarity, this is a beautiful amendment, which satisifies several key parameters for well-written legislation; it is short, uncomplicated by irrelevant language, understandable, simple, and about as unambiguous as you can get.

In fact, of the Amendment's 10 key terms, 8 are unambiguous. 2 of the terms (used in Boolean logic) have a rigor that allows them to be used in computer languages like C, Pascal, Fortran, Hypertalk, etc, with flow-chartable meaning: "no" and "or". 2 other terms are defined in the Constitution: "Congress" (in Article I), and "law" at the Federal level (also in Article I, with a plain meaning at the State level and lower). The other 4 terms, "make", "shall", "freedom", and "abridging", have clear meanings in everyday language.

This leaves only 2 terms which can be seen as ambiguous, giving the green light for "broad" interpretation ("literal" interpretation is required for unambiguous provisions like "no"). "Speech" is tricky: is sign language "speech"? So is "press": may writing on a poster be considered "press", if no printing press is involved? And what about Braille, film, videotape, CD-ROM, and/or transmissions over the Internet? Some would claim that these forms of media should not fall under the First Amendment, because they weren't around when the Amendment was written. Unfortunately, to apply this "original understanding" approach to interpreting the First Amendment would be to dilute it, since most of the effective media for communication that exist today were not even conceived 200 years ago.

To have the maximum First Amendment protection, we will need to see these final two ambiguous terms in their broadest senses; that's permissible, since an ambiguous term, by definition, contains more than one meaning, and so the term itself declares the mode of permissible interpretation: broad interpretation is okay because more than one meaning is involved. There is no one literal interpretation possible with ambiguous terms, because there is no one single meaning to be seen literally. How can we see the term "reasonable" literally?

There is an important proviso here: if we are going to see these ambiguous terms in their most expansive senses, we must consistently take this approach, and not shift our standards from case to case as convenience dictates. Luckily, consistent expansive interpretation of these ambiguous terms is not a controversial idea. Most people, regardless of political persuasion, don't have any problem with giving sign language, radio transmissions, film, television, Braille, and Morse Code First Amendment protection. And this final (political) decision removes the last barrier to First Amendment understanding.

When all is said and done, we have one of the most sterling examples of clear and unambiguous constitutional writing extant, so clear that we can break analysis down into three decision points, or nodes. With regard to directives regulating speech, the First Amendment tells us to ask three questions :

1) Is the directive a law?
2) Did Congress make the law?
3) Does the law abridge the freedom of speech or press?

If the answer to all three questions is "yes", the law is unconstitutional with respect to the First Amendment. If the answer to any of the questions is "no", then the law may or may not be unconstitutional on other grounds, but is definitely constitutional with respect to the First Amendment. (As stated before, the speech and press portions of the Amendment, the exclusive focus of this book).

These questions ("nodes") are decision points (points of direction change), and can be put into a flow chart:

Now that you understand the procedure mandated by the speech and press provisions of the First Amendment, it's time to see this procedure in action. Remember, we're considering only the First Amendment here, and no other Amendments, under which one or more of the following directives might be considered unconstitutional.

Jim's boss makes out a pink slip (a directive) firing Jim for leaking an internal office memo to the press.

1) Is the directive a law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.

The Texas legislature makes a law prohibiting bookstores from selling fiction.

1) Is the directive a law? YES
2) Did Congress make the law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.

New York City's legislative body makes a municipal ordinance prohibiting the spray-painting of messages on subway cars.

1) Is the directive a law? YES (an "ordinance" is a "law" with a different name)
2) Did Congress make the law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.

Congress makes a law that no book can be longer than 300 pages.

1) Is the directive a law? YES
2) Did Congress make the law? YES
3) Does the law abridge the freedom of speech or of the press? YES
UNCONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.

Congress makes a law proclaiming the existence of "National Pickle Week".

1) Is the directive a law? YES
2) Did Congress make the law? YES
3) Does the law abridge the freedom of speech or of the press? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.

Florida's legislature makes a law that will fine newspapers $10,000 for each count of "slanderous publication."

1) Is the directive a law? YES
2) Did Congress make the law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.

A state judge orders television cameras out of his courtroom for a closed hearing.

1) Is the directive a law? NO
CONSTITUTIONAL WITH RESPECT TO THE FIRST AMENDMENT.

As the above examples show, the First Amendment is widely misunderstood. This amendment is not (as generally believed) a catch-all directive against Government regulation of speech. In this regard, the first word of the First Amendment is its most important word: Congress. We're talking about the "Federal" government here, not "government" in the abstract. This view of the meaning of this first amendment contained in the original Bill of Rights is confirmed by the last amendment contained in the original Bill of Rights, the Tenth Amendment, which provides that

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, Congress can't regulate speech: it doesn't have that power. That power flows down to one of the State governments in our Federalist system. If they choose not to exercise that power (available to them since not prohibited by Section X of Article I), the people retain it.

Consequently, the concern of the First Amendment is not rights, but powers. The First Amendment is concerned not with protection of minority rights, but rather with Federalism: who rules, Congress or the States? Let's make this perfectly clear:

The issue under the First Amendment is not "can speech be abridged",
but "
who can abridge speech?"

And this is what saves (or should have saved) the First Amendment from arguments to evade or re-organize its clear procedure. Imagine society helpless before the following situations:

-- Automated obscene (or threatening) phone calls are made to "latchkey kids" while Mommy and Daddy are at work;
-- Graffiti is sprayed on the pulpit of a church;
-- A newspaper vendor wants to sell child pornography;
-- An ad is placed in a mercenary magazine for a "hit man";
-- A restaurant copies the trademarks and menus of a more successful restaurant down to the last detail to get more customers;
-- A magazine publishes troop movement schedules in wartime;
-- A student copies another student's essay while taking an exam;
-- A business submits a false competitive bid to the government;
-- A newspaper prints false and defamatory stories about a group, manufacturing fake quotes to put in the words of the group leaders, with no right of reply;
-- Radio frequencies clash so that
no radio can get through.

Put enough "nothing we can do"'s together, and a coalition of anti-First Amendment sentiment from people of the north, south, east ("left"), and west ("right") would form. Disrespect for this critical Amendment would spread in the society.

Luckily, there is something we can do about child pornography and advertisements for "hit men" in the local paper: we just have to do it on a non-Federal level. And this is what should have saved the First Amendment from the excuse that following its clear procedure is "too harsh".

Many of the difficulties that come about from a "literal" or "absolutist" or "rigid" interpretation of the First Amendment (i.e., a correct reading of the First Amendment) fall away when we realize that the Amendment does not prohibit State governments from legislating against speech. The First Amendment doesn't say "no" government is prohibited from passing laws against libel, slander, child pornography, and false advertising; rather, it says that regulation of these matters is up to the States. The authors of the First Amendment did not believe you could "say anything you wanted"; to the contrary. Under the First Amendment, Texas, Florida, and Alaska can shut you up tighter than a clam, if they want to.

At the Federal level, however, the Government's hands are tied. In case you had any doubts about this, you could do a reality check by reading the words of the two Supreme Court judges who were the greatest (though as we'll see, far from perfect) defenders of this Amendment - Hugo Black and William O. Douglas.

Before we do this, though we have to go off track for a second and bring up an important issue: citing the opinion of judges with reference to the meaning of constitutional text is a potential trap: after all, sometimes judges tell us that "2 + 2 = 4", and others that "2 + 2 = 5". And to cite the judge who says "2 + 2 = 4" is to implicitly endorse the power of another judge to hold that "2 + 2 = 5"!

However, citing the opinions of judges is permissible provided that we understand that these opinions are in no way dispositive of the meaning of Constitutional text, and cannot in any way overrule the plain meaning of constitutional text.

With this critical proviso in mind, let's look at some of this reality-checking language. According to Judge Douglas,

The First Amendment is written in terms that are absolute. Its command is that 'Congress shall make no law . . . abridging the freedom of speech, or of the press . . .' That guarantee, can, of course, be changed by a constitutional amendment which can make all the press or segments of the press organs of Government and thus control the news and information which people receive. Such a restructuring of the First Amendment cannot be done by judicial fiat or by congressional action. The ban of 'no' law that abridges freedom of the press is in my view total and complete. [1]

True, though "in my view" can be struck as irrelevant (and misleading). According to Judge Douglas, the Court does not have

carte blanche to design systems of supervision and control or empower Congress to read the mandate in the First Amendment that 'Congress shall make no law . . . abridging the freedom . . . of the press' to mean that Congress may, acting directly or through any of its agencies such as the FCC make 'some' laws 'abridging' freedom of the press. [2]

True, though under Article I, Section I of the Constitution, Congress cannot delegate its exclusive legislative power to any "agenc[y]". According to Judge Black,

[T]he First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that 'Congress shall make no law . . . abridging the freedom of speech, or of the press.' I read 'no law . . . abridging' to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly 'beyond the reach' of federal power to abridge. . . . The contrary notion is, in my judgment, court-made not Constitution-made. [3]

True, though "federal" power should be amended to read "Congressional" power. Thomas Jefferson provided a reality-check from a non-judicial observer, and stated in 1798 that:

[The First Amendment] thereby guard[s] in the same sentence, and under the same words, the freedom of religion, of speech, and of the press; insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. [4]

True, though "federal tribunals" should be amended to read "Congress". The idea advanced by some that the First Amendment was "old-fashioned" was no argument for not following its clear language:

What kind of First Amendment would best serve our needs as we approach the 21st century may be an open question. But the old-fashioned First Amendment that we have is the Court's only guideline; and one hard and fast principle which it announces is that Government shall keep its hands off the press. That principle has served us through days of calm and eras of strife and I would abide by it until a new First Amendment is adopted. [5]

True, though a little bug slipped in here. See if you see it in this restatement:

[I]t is anathema to the First Amendment to allow Government any role of censorship over newspapers, magazines, books, art, music, TV, radio, or any other aspect of the press. There is unhappiness in some circles at the impotence of Government. But if there is to be a change, let it come by constitutional amendment. [6]

Did you find the error? I know, it's subtle. Douglas refers to the impotence of "Government". Ahh, but you see, the First Amendment doesn't say that it is "Government" which is "impoten[t]" to regulate speech - the Amendment refers only to the legislative branch of the Federal government (a/k/a "Congress"). And the Tenth Amendment confirms this point of view, in case we had any doubts in the matter.

What is Douglas talking about?


The Fourteenth Amendment: First Amendment II?

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1 Douglas, CBS Inc. v. Democratic National Comm., 412 U.S. 94, 156 (1973). Unfortunately, Douglas did not follow through with this logic in this opinion. Ah well.
2 Douglas, CBS at 160.
3 Smith v. People, 361 U.S. 147, 157,159 (1959).
4 8 Jefferson, Writings (Ford ed. 1904), pp. 464-5, cited in Smith, p. 157.
5 CBS at 160-1.
6 CBS at 162.