WHAT IT TAKES TO BUILD A REPUBLIC AND A DEMOCRACY. PART II FREE SPEECH AND FREEDOM OF THE PRESS.

Several months after the Constitutional Convention began, Charles Pinckney of South Carolina offered to a committee several ideas of rights that belong to the people and among those rights he recommended that the right to a free press be among them. He wanted freedom of the press to be ” inviolably” preserved.

Common law was influenced by Blackstone. Blackstone saw seditious libel as a concern. The powers that be, saw the press as an instrument whereby lies and malicious rumors could be spread about the ruling class and as a result the doctrine of seditious libel began.  The colonial experience, however, taught the colonialists that there was perhaps more to worry about a government controlling the press than the press libeling a King. They recognized the reality of a libelous press but recognized the benefits that a free press has in being a guardian or a watchdog over a potentially corrupt government of government official.

In reading the 1st Amendment more attention should be paid to the phrase, “Congress shall make no law.” One can conclude that their intent was to make sure that Congress could not pass any law that regulated or censured the press.

It was James Madison who contributed the word,’ shall,’ rather than the traditional word ought. It was a major contribution because shall is definitive, it made freedom of the press, “Inviolable.”

As written the clause prohibits the government from censoring, taxing, establishing a licensing procedure and prohibits a government from writing into law a sedition law making it illegal to write anything against the government. Truth was not yet an absolute defense to the charge of seditious libel. One can conclude that the operative word was “freedom,” of the press. The founders wanted to encourage political discourse.

In common law it was a criminal offense if the press, wrote a malicious, and scandalous article against the government or against an individual in the government. But the regardless of the seditious nature of an article the founders were willing to take the bitter pill of criticism in order to have an unrestricted press insuring that political debates would freely be made without fear of retribution;

Whether it be a free press or free speech censorship stills a person’s ability to express himself freely for fear of the consequences of making ones opinion known whether in print or verbally.

Our own Supreme Court has dealt with cases whereby the government sought to exclude from the public important information, facts that belong to the people.

Many years ago in Near V. Minnesota, Chief Justice Hughes stated the following: ” The administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press.”

Watergate was another example of how a free press was able to tell a story. The people’s right to know was held to be paramount over a government’s attempt to keep a story from being published.

The right to free speech is also of utmost importance. The attempt in the 1950’s to exact loyalty oaths was an attempt by the followers of Joseph McCarthy to limit speech.

Even the right to free speech is not an absolute and the Supreme Court has indicated that any attempt to limit speech is a slippery slope.

Marching or demonstrating is a form of expression, a form of speech, and even when a famous march of Nazis upon the town of Skokie, Illinois, the march was permitted even though it was so painful to the many residents of the town who had survived the Nazi attempt to exterminate all Jews during the Holocaust.

There are no absolute rights, there are limits. We know that you can not yell fire in a crowded theater because of the danger and potential injury to those in attendance if there was no fire. There are other areas of controversy that the courts will undoubtedly face in determining if certain forms of speech are protected, For example is it okay for a pedophile to have a web site, where he gives instructions on how to be a successful pedophile? Or is okay to have a web site where the site teaches you how to build a bomb? Currently there are web sites that incite people to become terrorists. Should those web sites be banned? Should hate speech be banned, where more than speech occurs as a result of a speech that was made? If by chance on the hate web site, a reckless act, a crime occurs as a result of the words and encouragement on the site. Should the web site be held criminally liable or held partially responsible for the crimes that result from the instructions or actions that were encouraged ? Should any of these sites on the internet be banned? These are issues that need to be addressed and decided by a court of law on the question of whether there are any limits on the rights of individuals regarding free speech.

For all of the people in the world who seek to change their government to be more responsive to the will of the people, the Constitution of the United States and the Bill of Rights are a good road map on how to make a successful government work by protecting the rights of the people. The rights so established in our Bill of Rights are for the most part natural rights. Those rights which the political philosophers of the Age of Reason talked about are still as alive and important now as they were so many years ago. Let freedom ring across the globe.

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