billofrights

Josie Hsieh – Free Speech in the First Amendment

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Ratified on December 15, 1791, the Freedom of Speech Clause was imposed as part of the Bill of Rights, the first ten Amendments to the Constitution. The clause, which was written alongside laws disclosing matters of establishing and exercising religion and the right to petition the government, is most basically understood to state that that the government cannot convict people or organizations on the basis of what they say or write. However, the First Amendment only protects citizens against government officials and agencies, not private corporations or individuals. Free speech is not a limitless right, but the Constitution never clearly defines its boundaries.

The ambiguity in the use of the terms “speech” and “press” have made the amendment susceptible to controversy, as the vast scope of interpretation of these regulations have resulted in political backlash as to what should be deemed acceptable or not. “Speech” also applies to circumstances of the Internet and most forms of expression. Symbolic speech is also protected, as seen in West Virginia State Board of Education v. Barnette (1943) which determined that forcing students to recite the pledge of allegiance violated their first amendment rights, and Texas v. John (1989) that determined that flag burning was not prohibited in the Constitution, and could not be punished.

In most circumstances, decisions on free speech are made based on past court cases and the history of governmental regulation. Political and symbolic speech are regularly safeguarded under the Constitution, as is hate speech. However, over time, specific categories were classified as “low-value”, establishing them as unprotected by the First Amendment. These categories have been deemed non-essential to expression of ideas, but what is within these categories is still subject to debate. Schenck v. The United States (1919) was the first Supreme court case to establish a “low value” category under the conditions of speech that created “clear and present danger”, after Schenck persuaded people to not join the war. 

Following that, Chaplinsky v. New Hampshire (1942) deemed “fighting words,” face-to-face personal insults which are expected to instigate immediate fights, unprotected, although it is unclear whether Chaplinsky’s insults could actually incite a fight today. Defamation was instated as unprotected in 1964, after the New York Times was charged for containing minor inaccuracies in an ad about a public figure in New York Times v. Sullivan. Obscenity was initially established as unconstitutional under the First Amendment in Roth v. The United States (1957), claiming that Roth’s mailing of obscene content was “without redeeming social importance.”

Deciding these cases depends on whether one wants to uphold individual liberty or social order. Opinions on what should or is constituted as “low value” speech are still debated in the twenty-first century as the rise of new technology gives people the opportunity to say anything anonymously or with little consequence. 

 

Dassori – 9th Amendment

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While the Constitution was being ratified, several Antifederalist state representatives only approved the document with the expectation that a bill of rights would be added afterwards to protect the people from an overly powerful government. However, because Federalist James Madison worried that a bill of rights would send the message that any other rights not listed were not protected by the government, he proposed the addition of a statement to protect unenumerated rights. His proposal resulted in the addition of the Ninth Amendment, which states that just because some rights are named in the Constitution does not mean those not mentioned are not protected by the government. 

The Ninth Amendment, which is notoriously vague, has been interpreted differently by many different Supreme Court judges and Constitutional scholars. Three prevalent interpretations of these unnamed rights are rights that are defined on a state-by-state basis, the natural rights of life, liberty, and property each individual has, or any imaginable right that the Constitution does not explicitly deny. Another interpretation ignores the Ninth Amendment because it does not concretely prove the existence of other rights or explain them in enough detail to be valid in a court case. 

Estelle Griswold used this amendment in Griswold v. Connecticut when she argued that married couples have a right to privacy and therefore a right to use contraception. Although privacy is never explicitly mentioned in the Constitution, Griswold used the Ninth Amendment and several other amendments to win her case, arguing that privacy is an assumed right of the American people and cannot be restricted by the law. Griswold v. Connecticut provides an example of how several judges interpreted this amendment differently, however, as only Justice Goldberg believed the right to privacy was represented in the Ninth Amendment while other judges found it in the Fourteenth Amendment or did not find privacy in the Constitution at all. 

I am most strongly persuaded that the “unenumerated rights” protected by the Ninth Amendment refer to natural or unalienable rights. These rights are featured in the writings of many of the Constitution’s framers and their Enlightenment contemporaries and are seen clearly in the Declaration of Independence. Because it was not specifically stated that the rights would be defined by the states or that they were completely limitless, I think the framers were referring to their own ideas of basic human rights, a concept that heavily influenced the rest of the Constitution and especially the Bill of Rights. I would change this amendment to specify what kind of rights it was meant to protect because I think its vagueness restricts its power. By not clearly defining what it protects, the amendment allows many potential rights, such as the right to privacy, to be ignored by someone whose interpretation of the amendment did not include that right. If the Ninth Amendment had specifically stated that it, for example, protected natural rights, modern judges would be more likely to interpret it accurately instead of ignoring or abusing it.