Voluntary School Prayer Constitutional Amendment

Con

the prosecution of the producers, but argues that prosecution of the distributors would be unconstitutional. When confronted with the difficulties of the police in this field, Alan Reitman of the ACLU said, "The police will just have to try harder." gressman Paul Findley (R-Ill.) has stated, "The first amendment's guarantee of free speech and a free press cannot be set aside even to gain a conviction of a smut peddler. On the other hand, Congressman Robert Dornan (R-Calif.) has stated, "As anyone who really understands the Constitution knows, the first amendment was never intended to protect gross indecency and the corruption of the public marketplace.

In order to review the background of this debate, which goes to the core of meaning of our Constitution, let us examine the historical and legal implications of the First Amendment.

THE FIRST AMENDMENT:

HISTORICAL AND LEGAL BACKGROUND

The First Amendment states the following:

Congress shall make no law respecting an establish-
ment 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.

Throughout American history many historians and legislators have believed that this statement guarantees an untrammeled right to say, write, or depict any and every opinion, argument, or statement whatever (though sometimes they would except libel), that the First Amendment creates the United States as an "open society." But whatever the value of the recognition of such rights and whatever the implications of the concept of an open society, there can be little doubt that the Founding Fathers were not for the most part proponents of this interpretation, nor did they believe in an open society as it has come to be thought of today.

Benjamin Franklin, for instance, in an early essay, "An Apology for Printers" (1731), argued that vice and immorality in printed material for public consumption should not be countenanced. In 1789, writing on the First Amendment in "The Court of the Press," Franklin said, "few of us, I believe, have distinct Ideas

of Its Nature and Extent," indicating that he did not believe it had very large implications.

Alexander Hamilton, writing in Federalist No. 84, argued that freedom of the press was indefinable and opposed the whole idea of a Bill of Rights in the first ten amendments. One of the men who, after Madison, was most responsible for the framing of the Constitution was James Wilson of Pennsylvania. Wilson argued in the ratifying convention of Pennsylvania that

The idea of the liberty of the press is not carried
so far as this [the open society idea] in any coun-
try -- what is meant by liberty of the press is that
there should be no antecedent restraint upon it; but
that every author is responsible when he attacks the
security or welfare of the government, or the safety,
4
character and property of the individual.

In 1790 Wilson drafted the state constitution of Pennsylvania. He included a long section on liberty of the press, in which he stated,

1. Congressional Record, March 2, 1977, p. E1121.

2. Congressional Record, May 18, 1977, p. H4686.

Leonard W. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (New York: Harper and Row, 1963), pp. 126-127, 200.

4. Op. cit., pp. 201-202.

Backgroundër

The Heritage Foundation 513 C Street, N.E. Washington, DC 20002 ● (202) 546-4400

September 2, 1977

THE FIRST AMENDMENT AND
FREEDOM OF SPEECH IN AMERICA

THE ISSUE

A problem of increasing concern in American society has
been that of the burgeoning production of pornographic materials
in the form of books, magazines, photographs, films, and motion
pictures. While this problem has in itself attracted consid-
erable attention, an even more notorious aspect of it has been
the use of children in pornography. Recent accounts and studies
by the police departments of various cities, by social workers
and psychiatrists, and by local leaders indicate that the abuse
of juveniles in the production of obscene materials is increasing.
Authorities estimate that pornography in the United States has
revenues of $1 billion a year and that child pornography ("kid-
porn") accounts for 10% of this. The Los Angeles Police Depart-
ment has conducted an extensive survey of this type of porno-
graphy and has concluded that 70% of the child pornography mar-
ket caters to homosexual depictions of boys, that 25,000 juveniles
under 17 are currently involved in this aspect of the trade
alone. In Mineola, New York, a pornographic ring was broken up
which was estimated to make $250,000 a year.

Many congressmen and senators have expressed concern over
the brutalizing effects of the production process on the children
who are forced, intimidated, or gulled into participating. This
aspect of the issue is not seriously in question; and, accordingly,
several bills have been introduced in both the House and Senate
to penalize the production of child pornography and to prevent
more effectively the abuse of juveniles in its production.

However, due to the well-attested difficulties of appre-
hending the producers, some legislators feel that a more strin-
gent approach is necessary. They point out, as have police of-
ficials, that pornographers are often transient and do not sign
their work. Much of the production is on a short-term basis
and occurs in private homes, motels, or abandoned locations.
Children are often not the most reliable witnesses and cannot
identify their victimizers; and the process of testifying may
be traumatic for them. Thus, the legislators believe the only
effective way to curb pornography, especially of this genre, is
at the level of distribution rather than at the level of produc-
tion. They advocate the punishment of the mailhouses and book-
sellers that sell child pornography.

This aspect of the proposed legislation is more contro-
versial. Critics charge that such provisions would be a viola-
tion of the First Amendment, particularly if passed by Congress.
The American Civil Liberties Union, for example, has supported

NOTE: Nothing written here is to be construed as necessarily reflecting
the views of The Heritage Foundation or as an attempt to aid or hinder the
passage of any bill before Congress.

Con

In order to review the background of this debate, which goes to the core of meaning of our Constitution, let us examine the historical and legal implications of the First Amendment.

THE FIRST AMENDMENT: HISTORICAL AND LEGAL BACKGROUND

The First Amendment states the following:

Benjamin Franklin, for instance, in an early essay, "An Apology for Printers" (1731), argued that vice and immorality in printed material for public consumption should not be countenanced. In 1789, writing on the First Amendment in "The Court of the Press, Franklin said, "few of us, I believe, have distinct Ideas of Its Nature and Extent," indicating that he did not believe it had very large implications.

Wilson argued

The idea of the liberty of the press is not carried
so far as this [the open society idea] in any coun-
try what is meant by liberty of the press is that
there should be no antecedent restraint upon it; but
that every author is responsible when he attacks the
security or welfare of the government, or the safety,
character and property of the individual.

In 1790 Wilson drafted the state constitution of Pennsylvania. He included a long section on liberty of the press, in which he stated,

1. Congressional Record, March 2, 1977, p. E1121.

2. Congressional Record, May 18, 1977, p. H4686.

Leonard W. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (New York: Harper and Row, 1963), pp. 126-127, 200.

4. Op. cit., pp. 201-202.

The free communication of thoughts and opinions is
one of the invaluable rights of man; and every citi-
zen may freely speak, write, and print on any subject,
being responsible for the abuse of that liberty (Ar-
ticle IX, section 7). [Emphasis added] 51

This interpretation of the freedom of the press is quite different from that upheld by advocates of an open society. It argues that "liberty of the press" consists of liberty from prior inspection and censorship of publications before they are distributed, but that after publication the authors are responsible for what they said and can be prosecuted for it if they harmed public safety or morality or were guilty of libel. Delaware and Kentucky also had similar provisions in their constitutions. It is an interpretation that was based on the ideas of the eighteenth century English jurist William Blackstone, whose defense of the rule of law greatly influenced the Founders.

Others of the Founders who qualified their endorsement of the First Amendment were Hugh Williamson of North Carolina and John Adams. The latter believed that the press should be free within the bounds of truth but that falsehoods, scandals, and bad motives should be criminally prosecuted. Williamson also expressed belief in the Blackstonian idea that when government placed no prior restraints or license on publishing, "the press became perfectly free." John Marshall, in the Virginia ratifying convention of 1788, made statements that implied his belief that Congress could suppress minority critics if it had the support of public opinion.

It might be objected that many of these men -- e.g., Adams, Hamilton, and Marshall -- were on the "conservative" or "authoritarian" wing of the Revolution and that others, such as Jefferson and Madison, expressed more libertarian views. It is true that Jefferson and Madison did express a wider interpretation of the First Amendment, especially at the time of the Sedition Act. But it should be noted that this Act was passed by their political opponents, that the U.S. courts never denied its constitutionality, and that Jefferson, when he became President, did not hesitate to support the prosecution of Federalist editors under the very Act. Jefferson's early opposition to the Sedition Act was clarified by him in a letter to Abigail Adams on September 11, 1804:

While we deny that Congress have a right to control
the freedom of the press, we have ever asserted the
right of the States, and their exclusive right, to
do so.
7

..the press ought to be restored to its credi-
bility if possible. The restraints provided by
the laws of the States are sufficient for this
if applied. And I have, therefore, long thought
that a few prosecutions of the most prominent of-
fenders would have a wholesome effect in restoring
the integrity of the presses.

And in his Second Inaugural, Jefferson said,

These abuses of an institution [the press] so im-
portant to freedom and science are deeply to be
regretted, inasmuch as they tend to lessen its
usefulness and to sap its safety. They might, in-
deed, have been corrected by the wholesome punish-
ments reserved to and provided by the laws of the
several States against falsehood and defamation,
but public duties more urgent press on the time
more,
of public servants...

5. Op. cit., p. 203.

6. Op. cit., pp. 216-217.

7. Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976), p. 82.

Analysis and In

8. The Constitution of the United States of America: terpretation: Annotations of Cases by the Supreme Court of the United States to June 29, 1972 (Washington, DC: U.S. Government Printing Office, 1973) p. 938, n.12.

9. Inaugural Addresses of the Presidents of the United States from George Washington 1789 to Richard Milhous Nixon 1973 (Washington, DC: U.S. Government Printing Office, 1974), p. 19.

In other words, Jefferson several times expressed the belief that it was indeed unconstitutional for the federal government to legislate against the abuses of freedom of expression but that the states were free and authorized to do so. This does not support the current popular view of Jefferson as an exponent of the "open society" so much as it does the view that he dreaded the centralization of power in Washington. In any case, Jefferson's beliefs did not restrain his Administration from prosecuting the Federalist editor Henry Croswell in 1801 for his attacks on Jefferson's party.

Thus it cannot be said that the Founding Fathers were libertarians in any modern sense or that they believed seriously in the theory that the United States was an open society by virtue of the First Amendment. Franklin, Wilson, Hamilton, Jefferson, and several other less important of the Founders believed in what today would be considered a very limited role for the First Amendment: It pertained to the federal government but not to the states or it pertained to antecedent restraints (prohibition or press licensing), or both. In almost every case, these men believed that government had the right and the duty to prosecute irresponsible or seditious publications that threatened public safety.

COURT DECISIONS

The Blackstonian concept that regards liberty of the press as consisting in the absence of prior restraints is not a mere legal antiquity. Until well into the twentieth century it was the dominant interpretation of the meaning of the First Amendment and was expressed by Oliver Wendell Holmes in 1907. Holmes later modified his interpretation in Schenk vs. U.S., where he gave his famous "clear and present danger" opinion; but one week later he expanded on his conception of the meaning of the First Amendment, with unanimous consent, in Frohwerk vs. U.S., 249 U.S. 204 (1919):

...it is necessary to add to what has been said in
Schenk v. United States...only that the First Amend-
ment while prohibiting legislation against free speech
as such cannot have been, and obviously was not, in-
tended to give immunity to every possible use of lan-
guage....

Although the Supreme Court in the 1950s and 1960s considerably modified its interpretation of the meaning of the First Amendment and moved towards a wide libertarian concept, the current status of Supreme Court rulings on freedom of speech is far from recognizing a constitutionally mandated open society. A brief review of some of these decisions in two areas of First Amendment cases will serve to indicate the existing judicial consensus on this issue.

NATIONAL SECURITY

In Dennis vs. U.S., 341 U.S. 494 (1951), the Court upheld the conviction of eleven Communists for violation of the Smith Act, which forbids advocacy of violent overthrow of the government. In Yates vs. U.S., 354 U.S. 298 (1957), the Court overturned the conviction of several CPUSA leaders, but this decision was based on construction of the statute, not on the First Amendment. In 1961, the Court upheld the Internal Security Act of 1950 (McCarran Act) requiring registration of the CPUSA in Communist Party vs. SACB, 367 U.S. 1 (1961), with only Justice Black dissenting. In Scales vs. U.S., 367 U.S. 203 (1961), the Court upheld the constitutionality of proceedings against the members or organizers of a group proscribed by the Smith Act.

However, in 1969, the Court went far toward reversing this long-standing trend. In Brandenburg vs. Ohio, 395 U.S. 444 (1969), the Court forbade states to legislate against advocacy of illegal or violent action unless such advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

It is possible to see this recent trend in Court rulings as a deviation from the traditional juristic interpretation.

« Previous Continue »