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.
First is the matter of racial equality. When slavery was abolished, it was not by constitutional fiat but by the joining of military necessity with the moral force of a great antislavery movement, acting outside the Constitution and often against the law. The Thirteenth, Fourteenth and Fifteenth Amendments wrote into the Constitution rights that extralegal action had already won. But the Fourteenth and Fifteenth Amendments were ignored for almost a hundred years. The right to equal protection of the law and the right to vote, even the Supreme Court decision in Brown v. Board of Education in 1954 underlining the meaning of the equal protection clause, did not become operative until blacks, in the fifteen years following the Montgomery bus boycott, shook up the nation by tumultuous actions inside and outside the law.
The Constitution played a helpful but marginal role in all that. Black people, in the political context of the 1960s, would have demanded equality whether or not the Constitution called for it, just as the antislavery movement demanded abolition even in the absence of constitutional support.
What about the most vaunted of constitutional rights, free speech? Historically, the Supreme Court has given the right to free speech only shaky support, seesawing erratically by sometimes affirming and sometimes overriding restrictions. Whatever a distant Court decided, the real right of citizens to free expression has been determined by the immediate power of the local police on the street, by the employer in the workplace and by the financial limits on the ability to use the mass media.
The existence of a First Amendment has been inspirational but its protection elusive. Its reality has depended on the willingness of citizens, whether labor organizers, socialists or Jehovah’s Witnesses, to insist on their right to speak and write. Liberties have not been given; they have been taken. And whether in the future we have a right to say what we want, or air what we say, will be determined not by the existence of the First Amendment or the latest Supreme Court decision but by whether we are courageous enough to speak up at the risk of being jailed or fired, organized enough to defend our speech against official interference and can command resources enough to get our ideas before a reasonably large public.
The language of the First Amendment looks absolute. “Congress shall make no law . . . abridging the freedom of speech.” Yet in 1798, seven years after the First Amendment was adopted, Congress did exactly that, it passed laws abridging the freedom of speech-the Alien and Sedition Acts.
The powerful words of the First Amendment seem to fade with the sounds of war, or near war. The Sedition Act of 1798 expired, but in 1917 when the United States entered World War I, Congress passed another law in direct contradiction of the amendment’s command that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” This was the Espionage Act of 1917.
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic…. The question in every case is whether the words used are used 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 national government can restrict freedom of speech in relation to foreign policy, through judicial reinterpretations of the First Amendment. But what about state laws restricting freedom of speech or press? For over a century, the First Amendment simply did not apply to the states, because it says, ”Congress shall make no law.” The states could make whatever laws they wanted.
Four years later, however, when a group of people were arrested in a shopping mall for distributing leaflets against the Vietnam War, the Court said they were properly arrested. What was the difference between this case and the other? The union people, the Court said, were expressing themselves about an issue connected with the shopping center. But the Vietnam War had nothing to do with the shopping center, so those people had no First Amendment right to express themselves.’ Much like the kneeling – which is directed towards police brutality of African American folk, yet the anthem, the flag nor football has any connection with police brutality.
The point in all this recounting of cases is that citizens cannot depend on the First Amendment, as interpreted by the courts, to protect freedom of expression. One year the Court will declare, with inspiring words, the right of persons to speak or write as they wish. The next year they will take away that right.
A young black man named Charles MacLaurin learned this by hard experience in the year 1963. That summer, he addressed a group of fifty black people in front of the courthouse in Greenville, Mississippi, protesting the arrest of several young black people who had been demonstrating against racial segregation. It was a peaceful meeting, in which MacLaunn criticized the conviction and urged that blacks register to vote to deal with such injustices. A police officer told McLaurin to move on. He said he had a right to speak and continued. He was arrested, charged with disturbing the peace and resisting arrest, found guilty by the local court, sentenced to six months in jail, and this was affirmed by the Mississippi Supreme Court.
When he appealed to the U.S. Supreme Court, he discovered the rule that most citizens (who grow up hearing again and again from some aggrieved person: “I’ll take this to the Supreme Court!”) don’t know: Four of the nine justices must agree to take a case (in technical terms, to grant certiorari). Only three Supreme Court justices voted to take MacLaurin’s case. By now, it was 1967, and so, four years after his conviction, he went to prison.
An even more serious problem with the First Amendment is that most situations involving freedom of expression never make it into the courts. How many people are willing or able to hire a lawyer, spend thousands of dollars, and wait several years to get a possible favorable decision in court? That means that the right of free speech is left largely in the hands of local police. What are policemen likely to be most respectful of-the Constitution, or their own “police powers”?
This is always the price of liberty-taking the risk of going to jail, of being beaten and perhaps being killed.
Source Howard Zinn
