Tahlequah Daily Press

February 24, 2014

First Amendment covers basic rights

Series: The Constitution

Staff Writer

TAHLEQUAH — It contains just 45 words, arranged simply but eloquently, and its effects and influence have spanned centuries.

“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.”

The First Amendment of the U.S. Constitution is actually the first of 10 articles in the Bill of Rights, which were demanded by Anti-Federalists – those suspicious of a central government – before dropping opposition to ratifying the document.

“There was some concern in the 18th Century that a strong national government could be a threat to individual rights,” said State Rep. Mike Brown. “It was important then, as it is today, to prevent the kind of government tyranny seen in some other countries.”

Though the amendment enumerates the rights most dearly held by most Americans, there has always been disagreement about their application, and sometimes, interpretation has led to different levels of government encroachment.

“In 1798, less than 10 years after the Bill of Rights was ratified, the Federalist administration of John Adams passed the Alien and Sedition Acts, making criticism of government illegal,” said Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University. “What does this tell you about their commitment to free speech? The law was aimed primarily at Jeffersonian Republican critics. Just because the First Amendment has been in force since 1791 does not mean that Americans have actually enjoyed freedom of religion, speech and press since then. There have been numerous exceptions.”

Some regulations at the state, local and federal level can make petition difficult, and some such laws have been struck down by courts. The right to assemble is curbed on occasion; a recent example is “protest zones.”

The freedoms of speech and the press have felt restrictions during wartime. The motion picture industry introduced the Hayes Code during the 1930s because it feared government interference.

And many people today misunderstand the concept of “freedom of the press,” using it to demand publication or airing of whatever they say, regardless of whether it flouts the standards set for libel, defamation or privacy invasion.

That freedom applies to the “press” itself, not to the general public, who cannot force the media to act, or refrain from acting. The media’s refusal to comply with someone’s demand to print or air is not “censorship” of that person; censorship occurs only if the government tries to interfere. Otherwise, declining to print or air material is merely a business decision.

The separation between church and state is perhaps the most debated of the First Amendment freedoms.

For generations, many states passed laws breaching the First Amendment under the 1833 Supreme Court precedent of Barron vs. Baltimore that it applied only to Congress. States might apply religious requirements for office or require solicitation licenses for religious recruitment.

But in 1925, the Supreme Court used the 14th Amendment’s due process clause to apply the First Amendment to states in the case of Gitlow vs. New York. Though the free speech case actually upheld a state law and conviction, it established federal jurisdiction.

The Bill of Rights, drafted by James Madison, has a lineage. It draws from the Virginia Declaration of Rights of 1776, the English Bill of Rights of 1689, and even the Magna Carta of 1215.

The First Amendment and other articles of the Bill of Rights were a bit unusual, because they were an effort by the people to restrict the reach of government.

“That was not too common if we count all of the countries in the world, but the practice was common in America,” Savage said. “Most of the state constitutions either had a bill of rights or at least specifically mentioned certain protected rights. The National Assembly of France approved the Declaration of the Rights of Man in 1798, the same year our Constitution was ratified and two years before our Bill of Rights was ratified.”

Denise Deason-Toyne, an attorney and president of Save the Illinois River Inc., said corralling the government is an unusual practice, and that even Americans can forfeit liberties.

“In many other societies, it is almost unheard of for the population to have the right to limit government actions,” she said. “Even in our country, with the growing evidence of the NSA, and perhaps other agencies, spying or gathering information on unsuspecting citizens, the paltry level of outrage among the citizens is likely an indicator that a prohibition of this activity is not warranted.”

Shannon Grimes, Republican Party chair for Cherokee County, said Americans should be more vigilant when protecting their liberties.

“Rule of law was a well-established concept for the 18th Century, just as it was in the early Roman republic or even as shown in the Torah,” he said. “However, history suggests that then, just as now, there are many in government who would flaunt or ignore the limits on granted powers and prohibitions of activities that are so often part of the concept. Sadly, that it continues to happen suggests that not enough people notice or care.”