Andrew Breibart Defender of the First Amendment Award CPAC 2015
Phil Robertson wins Defender of the First Amendment Award.
By: The ACU
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Andrew Breibart Defender of the First Amendment Award CPAC 2015 - Video
Reading the First Amendment isnt easy. Consider the text:
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.
Neither the Words nor the History Helps Much
The words themselves arent much help. Reading the first word, Congress, literally would leave the president, the military, fifty governors, and your local cops free to ignore our most important set of constitutional protections. Reading the fourth and fifth words, no law, literally would wind up protecting horrible verbal assaults like threats, fraud, extortion, and blackmail. The three most important words in the First Amendmentthe freedom of the words that introduce, modify, and describe the crucial protections of speech, press, and assembly, simply cannot be read literally. The phrase the freedom of is a legal concept that has no intrinsic meaning. Someone must decide what should or should not be placed within the protective legal cocoon. Finally, the majestic abstractions in the First Amendment, like establishment of religion, free exercise thereof, peaceful assembly, and petition for a redress of grievances do not carry a single literal meaning. In the end, each of the abstractions protects only the behavior we think it should protect.
So much for the literal text.
History (or whats sometimes called originalism these days) is even worse as a firm guide to reading the First Amendment. The truth is that the First Amendment as we know it today didnt exist before Justice William Brennan Jr. and the rest of the Warren Court invented it in the 1960s. In fact, history turns out to be the worst place to look for a robust First Amendment. Thomas Jefferson thought free speech was a pretty good idea, but the ink wasnt dry on the First Amendment before President Adams locked up seventeen of the twenty newspaper editors who opposed his reelection in 1800. One of the jailed editors was Benjamin Franklins nephew Benjamin Franklin Bache. He died in jail. Despite the newly enacted First Amendment, not only did the federal courts remain silent in the face of Adamss massive exercise in government censorship; they often initiated the prosecutions. Matthew Lyon, Vermonts only Jeffersonian member of Congress, was jailed for four months and fined $1,000 for criticizing the president in his newspaper. Lyon had the last word, though. He was released just in time to cast Vermonts swing vote for Thomas Jefferson when the presidential election of 1800 was thrown into the House, helping to seal Adamss defeat.
The nineteenth and early twentieth centuries were free-speech disasters. Before the Civil War, antislavery newspapers were torched throughout the North. All criticism of slavery was banned in the South. Slaves were even forbidden to learn to read. During the Civil War, President Lincoln held opponents of the war in military custody for speaking out against it. After the Civil War, labor leaders went to jail in droves for picketing and striking for higher wages. Labor unions were treated as unlawful conspiracies. Radical opponents of World War I were sentenced to ten-year prison terms and eventually deported to the Soviet Unionfor leafleting. In 1920, Eugene Debs polled more than one million votes for president from his prison cell in the Atlanta federal penitentiary, where he was serving a ten-year jail term for giving a speech in 1917 praising draft resisters. Released in 1921, Debs, his health broken, was banned from voting or running for office; he died in 1926. After World War II, fear of communism translated into jail or deportation for thousands of political radicals guilty of saying the wrong thing or joining the wrong group, culminating in 1951 with the Supreme Courts affirmance of multiyear jail terms for the leadership of the American Communist Party, despite its status as a lawful political party.
So much for history, unless you want to erase the First Amendment.
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A Tale of Two Readings
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The First Amendment as we know it today didnt exist until the 60s
The Obama Administration and their cohorts launched a double-barreled assault on the First Amendment this week.
The Federal Communications Commission (FCC) dumped 330 pages of regulatory Super Glue on the operation of the Internet making clear their intention to turn the greatest source of democratized communication since Gutenberg invented the printing press into a public utility.
Perhaps jealous of their speech regulator counterparts, the Federal Election Commission (FEC) held a hearing to begin the discussion of how they can regulate political speech on the Internet.
Here's a newsflash to the FEC you cannot.
The blogs, articles and political information sources that the Democrat appointees on the FEC find so abhorrent are no different than the newspapers, radio or television broadcasts that they have no control over the content placed on them. Political news and commentary websites, whether using a link-driven system like the DrudgeReport, a news-oriented one like Breitbart.com or HuffPo, or a commentary-based blog like NetRightDaily.com, provides First Amendment-protected information to people who a generation ago got their news from dailies and news anchors.
It is this exact information expansion that drives the left crazy. While supporting the First Amendment when it applies to friendly news anchors and "all the news that's fit to print" newspapers, the left sees talk radio and an open and free Internet as being a threat to their ability to appropriately shape the narrative.
Yet, Internet bloggers are a much more accurate depiction of what the Founding Fathers were seeking to protect. In an environment where small towns had their own newspapers, and Patrick Henry self-published his seminal work, "Common Sense" that helped fuel the revolutionary fire, the men who wrote the Bill of Rights specifically were trying to prevent the government from determining what political speech was allowed.
The current occupant of the White House has proven exactly why the Founders had this concern.
Under Obama, the IRS has targeted conservatives and potential conservative donors. And then, not to be outdone, the Treasury proposed formalizing what the IRS had done with an enormous intrusion into the ability of non-profits to engage in political discourse.
The FCC tried to place news monitors into newsrooms to make certain approved topics were receiving enough coverage.
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Obamas First Amendment assault
TOLEDO, Ohio (Tribune News Service) In what was seen as a victory for First Amendment rights, the U.S. government agreed Thursday to pay The Blade $18,000 for seizing the cameras of a photographer and deleting photographs taken outside the Lima tank plant last year.
In turn, The Blade agreed to dismiss the lawsuit it filed April 4 in U.S. District Court on behalf of photographer Jetta Fraser and reporter Tyrel Linkhorn against Charles T. Hagel, then the U.S. Secretary of Defense; Lt. Col. Matthew Hodge, commandant of the Joint Systems Manufacturing Center, and the military police officers involved in the March 28, 2014, incident.
Fritz Byers, attorney for The Blade, said the settlement was made under the First Amendment Privacy Protection Act, which prohibits the government, in connection with the investigation of a criminal offense, from searching or seizing any work product materials possessed by a journalist.
The harassment and detention of The Blades reporter and photographer, the confiscation of their equipment, and the brazen destruction of lawful photographs cannot be justified by a claim of military authority or by the supposed imperatives of the national security state, Mr. Byers said.
The Blade is pleased with this resolution of the crucial First Amendment issues at stake in this matter, Mr. Byers said.
John Robinson Block, publisher and editor-in-chief of The Blade, said he was "very happy it's resolved," but wished the government would admit wrongdoing.
"We appear to know more about the U.S. Constitution than responsible federal defense officials. I wish they could admit in this instance, in any instance, that they were wrong and violated our rights."
Blade officials said $5,000 of the settlement would be donated to the Reporters Committee for Freedom of the Press. Based in Arlington, Va., the committee works to protect journalists free speech rights as well as access to public records, meetings, and courtrooms.
The remainder of the settlement will be shared by the Blade staff members detained, and will not be used to pay the newspapers legal fees.
The First Amendment Privacy Protection Act allows those who sue under it to recover a minimum of $1,000 per violation or actual monetary losses.
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Ohio newspaper gets $18,000 from government for deleted photos
The American Civil Liberties Union has come out in support of the Washington Redskins keeping their name, arguing that the U.S. governments decision to strip the NFL team of its trademark protection violates free speech rights granted by the First Amendment.
In an amicus brief filed in federal court on Thursday, the ACLU says the Redskins name is at least problematic, if not outright racist, but nevertheless protected under the U.S. Constitution.
Under the First Amendment, viewpoint-based regulation of private speech is never acceptable, regardless of the controversy of the viewpoint, reads the ACLUs legal brief, obtained by The Wall Street Journal. By scheduling the cancellation of the Redskins trademark because the word expresses a disparaging viewpoint, the government violated the First Amendment.
Pro-Football Inc., the company that owns the Redskins, filed a federal lawsuit in August challenging the U.S. Patent & Trademark Offices ruling, but the agency held that the Redskins name wasnt worthy of federal trademark protection because it disparages Native Americans, The Journal reported.
The ACLU brief called on the federal courts to end this formal system of viewpoint discrimination by issuing a narrow ruling that strikes down those portions of Section 2(a) of the Lanham Act that prohibit registration of immoral, scandalous, or disparag[ing] marks.
ACLU staff attorney Esha Bhandari wrote a subsequent blog post defending the brief.
The Washington Redskins is a name that is offensive and perpetrates racism against Native Americans, she argued. Should it be changed? Yes. But should the government get to make that call? As we told a federal district court yesterday, the answer is no, because the First Amendment protects against government interference in private speech.
The ACLU has a history of defending the speech rights of groups we disagree with, because the First Amendment doesnt protect only popular ideas. The Washington teams choice of name is unfortunate. They should be and are being pressured to change it. But it isnt governments role to pick and choose which viewpoints are acceptable and which are not, Ms. Bhandari said.
See the article here:
ACLU sides with Redskins, deems trademark cancellation unconstitutional