Talk:First Amendment to the United States Constitution

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WHAT EXACTLY DOES THE FREEDOM OF SPEECH LAW DO?

Appoint me to the Supreme Court, and you'll find out.

But seriously folks, shouldn't First Amendment be redirected/merged here? -- IHCOYC 00:19 12 Jun 2003 (UTC)

To answer the question is in itself highly diffcult. In essence, the First Amendment portion on freedom of speech does nothing until it is violated. That is to say, it gives you the right to speak your mind (either in print or vocally) until you run into one of the artificially created restrictions that are placed upon it--the term "artifically created" is not to imply that they are without merit, rather that they exist to protect others and the nation as a whole and are not present in the wording of the amendment itself. This concept is accepted by most. Once you encounter the limitations then your right to speak on the topic is restricted. Most people don't ever encounter such a problem. Some examples would be the telling of something that might hurt others, inspire others to cause harm, legal libel or slander, fraud, the relay of national secrets (like selling military secrets to another country), and others.

The biggest issue (often) is with pornography and obscenity. These are nebulous topics that can't be tied down directly, thus the concept of "community standards" will come into play.

I don't even think I touched on 0.0001% of what you were asking for, but I hope that helps in some way to answer your query. 21:59, 2 Jun 2004 (UTC)FF7

Executive orders

the legislature makes laws, the executive executes them and the judiciary interprets them. If there were no legislation, there would be nothing for the executive to enforce or the judiciary to interpret; thus, those two branches can only act in the presence of authorizing legislation.

This doesn't seem accurate at all. At best it is a gross oversimplification. The executive, for instance, makes a number of actions which are not initiated by the legislature.

The duty of the executive is only to take care that the laws be faithfully executed, under Article II. If there is no law, the executive cannot act (save in such circumstances as the Constitution authorizes). Of course, the President issues executive orders and the like. These, however, are issued only to ensure the faithful execution of the laws: if there were no laws, there would be no executive orders to ensure their execution. Thus, constitutional or legal authority is required for actions. -- Emsworth 20:34, Jun 5, 2004 (UTC)

You've ignored the majority of Article II. The President, in addition to taking care that the laws are faithfully executed, is commander in chief of the armed forces, makes treaties with the advice and consent of congress, appoints various government officials, gives state of the union addresses, receives ambassadors and other government officials, and commissions the officers of the United States. This is all in addition to those inherent powers that the Supreme Court has deemed the Executive to have. By no means is the President limited to merely executing laws created by congress. anthony (see warning) 01:38, 6 Jun 2004 (UTC)

Actual malice standard

In 1988, Hustler Magazine v. Falwell extended the "actual malice" standard, protecting satirists from libel suits based on intentional infliction of emotional distress.

This case wasn't even about a libel suit. The jury had already found Hustler not guilty of the libel suit. I've reverted back to the original wording. anthony (see warning) 01:47, 6 Jun 2004 (UTC)

We do need to indicate, though, that that case only applies to a narrow context - satire of public figures. - jredmond 02:06, 6 Jun 2004 (UTC)

I thought the case applied the "actual malice" standard to all suits based on intentional infliction of emotional distress. I'll look up the actual text and try to fix this if it isn't true. anthony (see warning) 14:05, 6 Jun 2004 (UTC)

In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. OK, I'll fix that. anthony (see warning) 14:09, 6 Jun 2004 (UTC)

Shunting of text to Wikisource

The reason given in the edit summary for the removal of the text is that Wikipedia policy is not to include primary sources. But referring to Wikipedia:Don't include copies of primary sources, I read the policy as specifically exempting this case. No, it's not a "paragraph-by-paragraph" reading, but that's because this is only a single sentence, about which 5500 words of article text have been written! I think that qualifies as a "close reading." The text should be brought back. (Is this just an attempt to promote Wikisource, perhaps?) --TreyHarris 17:30, 23 Jun 2004 (UTC)

I have to agree. It seems ridiculous to have to go to another site just to see the 40-odd words that the whole article is about. Wikipedia:Don't include copies of primary sources was more intended to prevent people dumping the complete text of Hamlet into the 'pedia, not for short texts like this. -- DrBob 17:39, 23 Jun 2004 (UTC)

Actually, it is an attempt to maintain consistency with Article One, etc. When "Article One" was nominated, it was objected to on the grounds that it included the article text. Article One may also be regarded as a "paragraph-by-paragraph" analysis. While it is true that Art. I is much longer, I think that to maintain consistency all articles on parts of the US Constitution should follow the same model in regard to text inclusion. -- Emsworth 17:42, Jun 23, 2004 (UTC)

Well, I don't want to actually put a primary source here, so I'll just refer you to Wikiquote:Ralph Waldo Emerson and suggest you scroll down a bit for the quote about "a foolish consistency". --TreyHarris 17:56, 23 Jun 2004 (UTC)

Try the quotation about hating quotations. In any event, if you feel so strongly, reinstate the text. -- Emsworth 18:04, Jun 23, 2004 (UTC)

Commercial speech

Someone shoudl add that the first amendment even protects commercial speech (i.e., commercials and advertisments) to a certain degree under the Central Hudson case.

Respecting an establishment of religion

In a quite literal sense, the amendment does not say that Congress shall make no law "respecting establishment of religion" (which could literally be read to mean respecting establishing a religion or state establishment of religion). Rather, it says that Congress shall make no law "respecting an establishment of religion", which can literally be read to mean respecting a particular establishment of religion, that is, Congress shall make no law that is peculiar to a particular system of religion. This is supported by the accounts of certain important framers, and by Court rulings, but one need not resort to penumbra to state that the Amendment prohibits laws which in their essence prefer certain religious establishments over others or none at all. - Centrx 05:39, 23 Dec 2004 (UTC)

Thanks for the clarification. Overlooked the word "an" when considering the literal sense. Feel free to revert me. Thanks. Jewbacca 05:48, Dec 23, 2004 (UTC)

"Virtual" amendment

Recently several edits have included the text of a "virtual" admendment, an attempt to spell out what "the rules really are" that the Court actually enforces. Since the court has never included such a text in any opnion, this represents a statement of opnion about the basis and effect of the court's interpretations. I have removed this text from the article, while including a section indicating that some cometations hold this view, and moving the text of the alleged "virtual" admendment to a separate article, with a note that it is an opnion, not a generally accepted view, much less a fact. DES 20:56, 24 Feb 2005 (UTC)

That the Supreme Court has created what scholars have referred to as a "empirical" constitution, or a "virtual" constitution, is not a matter of opinion. It is a fact. The Court creates this virtual Constitution through the legal doctrine of stare decisis or, "the decision stands". For a definition, see http://www.lectlaw.com/def2/s065.htm.

Several books have been written about this "empirical" constitution, which substitutes for the text of the written constitution. Perhaps the most famous of these is the book by Edwin Corwin, The Constitution and What It Means Today. There are several others.

So, that there is in fact an "empirical" or "virtual" constitution created by the decisions of the Supreme Court is not in dispute. What might be in dispute is the actual text of that "virtual" constitution, or in this case, the actual text of the "virtual" First Amendment, but there is little doubt that the version created by Ladanyi based on his reading of Supreme Court opinions is much closer to the text of the First Amendment deployed in analysis by the courts than the First Amendment itself.

The average layperson does not understand this, and that is why it is critically important that this concept appear in the article.

The following link to a flow chart contained in a Cornell Law Review article probably explains this a lot better than any text could:

http://www.krusch.com/real/flow2.html

Pythagoras 21:56, 24 Feb 2005 (UTC)

Kenj0418 06:58, Feb 25, 2005 (UTC): The 'Virtual First Amendment' text that keeps being placed on this page represents opinion. It is does not represent a Neutral Point of View. I agree with your assertion (and expect that most people would) that the supreme court uses prior decisions, in part, to base it current decisions. I also agree with you that the Supreme court goes beyond the text of the amendment when making it's decisions (ex: Yelling 'Fire' in a crowded theater as non-proteced speech, and Burning the flag as protected 'free expression'). However:

The Supreme Court has never stated it uses such a text, nor has it published one. Until it does so, then any discussion of a 'Virtual First Amendment' is opinion. Even if it were universially accepted that such a text existed, then absent the publishing of a text by the court, any conjectures at a specific text would be opinion, not fact.
The Supreme Court changes its interpretation over time based on how individual justices interpret the actual text of the amendment. This sometimes overturns prior decisions. (Not a first amendment example, but well known: Plessy v. Ferguson was overturned by Brown v. Board of Education. These were vastly different interpretations of the 14th amendment, based on different interpretations by different justicies) These changes are made with regard to a 'virtual' amendment

It is unfortunately that this once featured page is being repeatly reverted. There appears to be to distinct 'camps' with regard to the inclusion of the Virtual First Amendment text.

Pythagoras 21:56, 24 Feb 2005 (UTC)

Kenj0418 states that "The Supreme Court has never stated it uses such a text, nor has it published one". In the most strictly literal sense, this is true, however, the court has on numerous occasions published in its opinions "tests" for the constitutionality of legislation, and these "tests" are not derived from the text of the Constitution, but rather the court's own reasoning in its prior cases, and of course, the original cases in which those "tests" appear. These tests (which appear as a text in written opinions) create a flow chart of analysis for subsequent judicial bodies (see the link above), and, in fact, operate as a virtual constitution for those bodies.

Here is one example of these tests, a test for obscenity, which comes from the court's decision in Miller v California : (1) the proscribed material must depict or describe sexual conduct in a patently offensive way, (2) the conduct must be specifically described in the law, and (3) the work must, taken as a whole, lack serious value and must appeal to a prurient interest in sex. What is "patently offensive" is to be determined by applying community values, but any jury decision in these cases is subject to independent constitutional review.

Now, it is obvious that this "test" appears nowhere in the text of the First Amendment, but in evaluating the constitutionality of laws, the Supreme Court will instead refer to its own tests, and not the text of the amendment itself. It is, therefore, is part of the "virtual First Amendment". While there certainly will be disagreement about what the text of the virtual First Amendment is, there really can be no disagreement that there is in fact such a phenomenon.

So, to discuss a virtual First Amendment in the text of the article is simply to explain for the layperson exactly what is occurring, and it is a completely neutral point of view, simply a description of the reality which has obtained. It is also neutral to point out that this policy of the court to create "tests" for the constitutionality of legislation (which do not themselves appear in the Constitution) is not authorized by the Constitution, because, it is, in fact, not.

It is indeed true that the Court uses "tests", which it invents, and which are not directly derived from the actual wording of the admendment, to decide cases. "Clear and present danger", "Prior restraint" "Falsely shouting Fire in a crowded theater" are among the more famous of these. It is resasonable IMO to discuss such tests and they way they are constructed and changed. it is also true that such tests are often cited from one case to another. Note that this isin no way unique to first admendment litigation -- it occurs throughout consitiutional law, and to a lesser extent throught the intrepretation of statuatory law as well, it is, indeed, simply an continuation of the old common law tradition. The writers of the Federalist Papers wrote approvingly of such interpretations, and they date back at least as far as Marbury vs Madison in the work of the US Supreme Court.

The doctrine of stare decisis, by the way, is common to all common law courts, and if anything has been held rather less strongly by the US Supreme Court than by most such courts, as the Copurt feels relatively free to overrule its own judgements when it deems them fundamentally incorrect.

However, the Court does not treat these tests in the same way that it does the text of the admendment itself. It does not act or write as if all the tests together made up a virtual admendment. It is much more willing to change or recast the "tests" -- indeed many of them appear only in a single case, and are never adopted and applied in subseequent cases. The court tends to treat such tests one at a time -- it does not seem to consider the result of combining all or many of them into a single text, as the suggested "virtual admendment" does. This distiction is important, bnecause it means that none of these "tests" is likely to be as endurign as the eords of the admendment itself, and that a future case may cause the court to modify or reject a previously widely used test. (For example, there was a series of tests to deteminew whether a confession of crime was "voluntary". This whole line of cases was rejected in the Miranda case, and the use of the Miranda warning completely replaced it. Many other examples could be cited.)

The concept of a "virtual text" which is what the court actually enforces is an outgrowth of the school of legal realism. This is an important school of legal thought and interpretation, but it has by no means achieved a consensus in the field. That means that it is a matter of opnion, evn if well grounded.

Furthermore, even if the idea of a "virtual text" were acepted, there is no authoritative source for the actual wording of such a text. Different scholars would take wordign from differnet "tests" and cases, and combine such wording in different ways, in order to derive such a virtual text. That means tha tthe actual text would still be a matter of opnion, even if the existance and imprtance of a virtual text were universally agreed.

I note that the link to the flowchart given by Pythagoras above is from the same book a the one from which his suggested "virtual text" is taken. I note also that the actual author of the chart (who is not the same as the author of the book in which it is reproduced) says that the Court's "inconsistancies" and changes of rule mean that no chart can be fully complete and accurate, and if no chart, than also no virtual text. I note also that the creator of the chart gives it as a predictor of how the court will decide a given issue, a summery of rules for decision announce in past cases and not overruled. But it seems to bee only Krusch who is treating this chart as evidence for a virtual admendment, not the creator of the chart itself, as far as I can tell from the link supplied.

For all these reasons, i don't think that any such "virtual text' belongs in the main article. But the concept, as one tool of interpretation and analysis, should be mentioned, and actual texts proposed by scholars could reasonably be quoted (with proper citation) and discussed in proper articles of their own. DES 16:31, 25 Feb 2005 (UTC)

Against inclusion: DESiegel and kenj0418
For inclusion: Pythagoras and various IP address (unknown whether these are Pythagoras or not)

"Virtual" Amendment Compromise

I (Kenj0418) suggest that we use DESiegel's edit of 16:56, Feb 24, 2005 as a compromise version. It seems to provide a good compromise between these two 'camps'. It includes a discussion of interpretation of the amendment, and a link to a further discussion of the 'Virtual First Amendment' views of Ladanyi and others. This appears, to me, to provide the information on interpretation that Pythagoras, et al. feel is needed, and preserves that NPOV that DESiegel and I (kenj0418) want.

I am contacting the relevant parties (anyone editing the article since Feb 10 2005) and asking them to agree on DESiegel's compromise version. If this is not satisfactory, we can continue with the Wikipeida Dispute resolution procedures. Please reply here if you have any objections to this compromise version.

( Pythagoras) This would be acceptable with some minor revisions, which I will make.

Obviously the compromise version i posted is acceptable to me. I will examine Pythagoras's "minor revisions" before giving any opnion about them, but if I agree that they are minor, this should not be a problem. DES 16:31, 25 Feb 2005 (UTC)

I'm assuming the proposal is for DESiegel's edit of 21:56 UTC on February 24 (in other words, this one). It's better than putting this editorializing near the beginning of the article, but it still misleads the non-lawyer reader by giving the impression that First Amendment jurisprudence is somehow different from what the courts do in other areas of Constitutional law. It's also inaccurate to say "Some of these court-created rules are treated by future courts, and by others, almost as if they were themselves constitutional provisions." Obviously, lower courts follow the Supreme Court. The Supreme Court develops principles and uses them to decide new cases, but it doesn't treat them as being equivalent to the text. One of the very examples cited in this passage, the "clear and present danger" test, was replaced (albeit by a similar principle) in Brandenburg v. Ohio. The article on Virtual first amendment needs some NPOVing, but for this article, a "See also" link to that one is adequate coverage. JamesMLane 22:43, 26 Feb 2005 (UTC)

By "future courts" I meant in subsequent casaes before the Supreme Court, not lower courts. That shoul;d perhaps have been made clearer. You are correct that the general probelm of interpretation and court-made rules and tests applies to the entire constitution, although it is perhsp most evident in connection with the Bill of Rights, particualrly as applied to the States vis aht 14th admendment, and perhaps a section in the article on the conbstitution as a whole, or a seperate article on constitutional interpretaion (US) would be a better place for this discussion, with a see or see also link in this articel and perhaps in other articles on specific constitutional provisions. Note that I wrote the section as I did specifically to try to put a stop to an edit war, and thus I included soem detail i otherwise might well not have done. I certianly did not intend to imply that First Admendment jurisdiction is any different in this regard than other constitutional areas.DES 17:17, 28 Feb 2005 (UTC)

I must agree with the above criticism of the compromise version. The notion of "virtual texts" is not confined to the First Amendment, but rather relates to the entire Constitution. One could argue that such a concept is much more relevant to the 14th Amendment than to the 1st. Thus, it is misleading to discuss the idea of virtual texts here; rather, it should most probably be discussed at Constitution of the United States. The proposed link in the See Also section would be ample. -- Emsworth 02:35, 27 Feb 2005 (UTC)