There were no First Amendment speech or press ( or any 1st Amendment,I believe)cases before the U.S. Supreme Court until 1919, 128 years after the passage of the Bill of Rights. Probably for the history of the existence of the Bill of Rights, most _adult_ Americans have _not_ had even the high school civics ideal consciousness of freedom of speech, press, religion and assembly that American liberal intellectuals imagine.
(First press case: Block quote>>Freedom of the Press Near v. MN (1931) press may be held accountable under libel laws for information they publish (if untrue), but prior restraint is almost always unconstitutional<<close block quote>> http://www.citadel.edu/pscj/courses/kuzenski/cases.htm ) CB:In the first cases on the First Amendment, the main result is that the famous liberal justices, Holmes and Brandeis , found exceptions to the freedom of speech, with the result that the first cases did not find that the defendants' First Amendment rights had been violated, so Schenck, Gitlow and Debs went to jail for speeches opposing American workers' participation in the capitalist war for profits, WWI. In other words, when Holmes formulate the clear and present danger test, in the actual case before him, he found that Schenck's leaflets _did_ create a clear and present danger to the capitalist order, and the leaflets were not protected speech under the First Amendment. Brandeis in another case later voted to uphold the conviction of a Communist leader in California, Comrade Ania Whitney, despite writing a famous opinion on the the virtues of freedom of speech ( I think this one has the noxious doctrine as gas metaphor) CB:Get this: >>Block quote>> The Whitney case is most noted for Justice Louis D. Brandeis's concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court. (He and Justice Holmes concurred in the result because of certain technical issues, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority.) close block quote >> at http://usinfo.state.gov/usa/infousa/facts/democrac/44.htm CB:Unraveling this doubletalk that tries to cover for Brandeis, as my constitional law prof, Donald Regan said, Brandeis wrote a paean to free speech in his opinion and then voted to uphold the conviction of a _political_speech "crime" ( advocating communism)! That truly fails the pragmatic test. Brandeis talked left;voted right. http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constituti on#Political_speech <<block quote>> The Supreme Court was for the first time requested to strike down a law violating the free speech clause in 1919. The case involved Charles Schenck, who had during the war published leaflets challenging the conscription system then in effect. The Supreme Court unanimously upheld Schenck's conviction for violating the Espionage Act when it decided Schenck v. United States. Justice Oliver Wendell Holmes, Jr., writing for the Court, suggested that "the question in every case is whether the words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." The "clear and present danger" test of Schenck was extended in Debs v. United States, again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a "clear and present danger" to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a "natural tendency" to occlude the draft. Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Further restrictions on speech were accepted by the Supreme Court when it decided Gitlow v. New York in 1925. Writing for the majority, Justice Edward Sanford suggested that states could punish words that "by their very nature, involve danger to the public peace and to the security of the state." Lawmakers were given the freedom to decide which speech would constitute a danger. Freedom of speech was influenced by anti-Communism during the Cold War. In 1940, Congress replaced the Sedition Act of 1918, which had expired in 1921. The Smith Act passed in that year made punishable the advocacy of "the propriety of overthrowing or destroying any government in the United States by force and violence." The law was mainly used as a weapon against Communist leaders. The constitutionality of the Act was questioned in the case Dennis v. United States. The Court upheld the law in 1951 by a six-two vote (one Justice, Tom Clark, did not participate because he had previously ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes' "clear and present danger" test when he wrote for the majority. Vinson suggested that the doctrine did not require the government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited," thereby broadly defining the words "clear and present danger." Thus, even though there was no immediate danger posed by the Communist Party's ideas, their speech was restricted by the Court. Dennis v. United States has never been explicitly overruled by the Court, but future decisions have in practice reversed the case. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States. The Supreme Court ruled that the Act was aimed at "the advocacy of action, not ideas." Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act. <close block quote>> CB ^^^^^^^^^^^ One of my first papers in university was based on a survey (pretty small sample) of high school students (my old Passaic NJ high school) getting their views on the paraphrased 1st Amendment. Same basic results, same basic conclusions (I think my title was something like Yesterday's Ideals, Tomorrow's Citizens). That would have been 1956. Contrary to the suggestion below, no one recognised the bill of rights. cheers, michael At 07:52 10/02/2005, Carl wrote: >Generation Red, White And Gray > >If the children are the future, we're screwed. > >By Alexander Zaitchik > >Last week was a busy one on the creeping-fascism index. So busy, in fact, >that I finally accepted there is even such a thing as a creeping-fascism >index. > >Over the past few years, I've held fast to a belief that America is too >sprawling, too diverse and too fundamentally committed to its Constitution >to ever change its flag to red, white and black. Now I'm not so sure. It >wasn't a delayed reaction to the Patriot Act, Guantanamo, Iraq or the >confirmation of torture hombre Alberto Gonzalez that did it, but a modest >blip on the post-9/11 radar: a poll finding that a third of high school >students think the First Amendment "goes too far." > >At least that's what they think of the First Amendment once it's explained >to them. After interviewing 100,000 teens in the largest study of its kind, >the John S. and James C. Knight Foundation reports fast shrinking respect >for bedrock constitutional freedoms of speech, press and assembly. Among the >findings widely commented on last week-but not widely enough-only 51 percent >said newspapers should be allowed to publish content without state approval. >Three-quarters actually thought flag burning was illegal-and didn't >care-while almost one-fifth said Americans should not be allowed to express >unpopular views. > >News of the poll triggered a few easy comparisons to the fear-driven >conformity of the early Cold War. But that analogy is wishful thinking. Even >at its worst, the paranoid patriotism of the 1950s existed uneasily >alongside a respect for and knowledge of American history and the >Constitution. Even as critics were stripped of their passports and driven >out of the academy and Hollywood, and even as the CIA subverted popularly >elected governments abroad, in U.S. high schools one of the most frequently >assigned books was Howard Fast's Citizen Tom Paine. However airbrushed that >era's celebratory view of America's past, kids still had a sense of that >past as something to honor, if only in theory. However dramatically the >country deviated from its stated ideals, the baseline culture still >instilled a reverence for the founding fathers and the Bill of Rights. Every >teenager at least knew what those things were. Michael A. Lebowitz Professor Emeritus Economics Department Simon Fraser University Burnaby, B.C., Canada V5A 1S6
