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United States Constitution > First Amendment / Amendment I
Congress shall make no law
respecting an establishment of religion,
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.
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USA > U.S. Constitution
First Amendment > Free speech - 1791
JAN. 23, 2015
The New York Times
The Opinion Pages
By MARTIN LONDON
WHILE most of us would agree that religious fundamentalists,
foreign and domestic, sometimes do serious harm to our society, there are other
kinds of fundamentalists who are also dangerous: I refer to legal
More precisely, the tranche of lawyers, academicians, journalists and publishers
who, over the years, have developed into First Amendment fundamentalists and
have become a powerful influence on our government. Currently, they appear to
have persuaded our attorney general that the amendment bars him from taking
action against Inspire magazine, published on the Internet by Al Qaeda in the
The organization is a sworn enemy of the United States, and its web publication
is available throughout the land. The online magazine proclaims its goals of
providing inspiration and justification to inflict harm on the United States as
well as Britain, France and other countries, by killing its citizens, preferably
in large numbers. It encourages its readers to engage in attacks.
Credit Mike McQuade
The magazine has given instructions for building car bombs as well as
pressure-cooker bombs using material from a kitchen or a hardware store. Those
instructions were followed to the letter by the Tsarnaev brothers, who murdered
three and sent 264 to hospitals in the 2013 Boston Marathon bombing.
It also — in its issue this past Christmas Eve — shared a new bomb recipe aimed
at bringing down civilian airliners. According to Inspire, the new bomb would
not be detected by the Transportation Security Administration metal detectors,
only potentially by sniffer machines. But even if detected, the bomb probably
wouldn’t be discovered, the publication says, without probing into orifices that
a T.S.A. officer might be reluctant to visit.
In Britain, possession of the online magazine is a crime. Is this publication
protected by our First Amendment? Not on your life!
In 1791, our forebears, anxious lest the new government adopt some of the
restrictions that had been imposed by the king, adopted a basic commandment
barring the government from making any law “abridging the freedom of speech.”
Does that mean what it says? Obviously not, because we have adopted many laws
abridging speech, such as in cases of child porn, perjury, false representation,
libel and slander, criminal conspiracy, etc. The list is substantial. When it
comes to political speech, how do we distinguish the good speech from the bad?
We look to bedrock principles.
For example, threats are not protected because they provide no social value. The
idea behind the First Amendment, wrote the founders, was that the citizens be
free to criticize their government. And over the next several centuries, our
courts have developed a great body of law refining and expanding that concept.
In the area of national security and politics, there are no wrong ideas, and
free speech is indispensable to the disclosure of truth.
The most recent and most expansive Supreme Court decision on protected speech in
the context of national security was the Brandenburg case in 1969, which struck
down an Ohio law that criminalized advocacy of crime, violence or terrorism as a
means of accomplishing political reform. The statute was unconstitutional, the
court said, because political speech is protected unless it is “directed to
inciting or producing imminent lawless action and is likely to incite or produce
such action.” Because this Ohio statute did not adequately distinguish between
abstract advocacy versus true incitement to imminent action, the conviction of
Clarence Brandenburg, a Ku Klux Klan leader, was reversed.
In looking at the question of what speech is protected and what is not, courts
have always looked to context. For example, every Supreme Court decision on this
subject recognizes war as an exception to the First Amendment, even though the
Constitution says no such thing. The classic example cited by the older cases is
recognition of the government’s unfettered right, in time of war, to ban the
publication of information revealing the sailing dates of troop transports. Ten
years after Brandenburg, a district judge in the United States v. Progressive
case enjoined the publication of classified nuclear bomb formulas. The court
found that times had changed, war was no longer limited to foot soldiers who
travel to battle sites on troop transports, and even though it was not clear
that a reader would imminently “build a hydrogen bomb in the basement,” the
scope of the danger overwhelmed the imminence factor.
The balancing act was succinctly explained by Robert W. Warren, the district
court chief judge who, when referring to Patrick Henry’s famous liberty-or-death
choice, explained, “in the short run, one cannot enjoy freedom of speech,
freedom to worship, freedom of the press unless one first enjoys the freedom to
The balancing test must look at what is real. The measurement of imminence
changes when we are talking about detonating a nuclear bomb in New York City as
opposed to an unlicensed rally blocking the Brooklyn Bridge.
The federal government should move decisively to block Inspire on the web. It is
criminal incitement that has produced lawless action, and no sentient judge
would today say otherwise.
It is one thing for Attorney General Eric H. Holder Jr. to excuse the journalist
James Risen from revealing a book source, and quite another to permit virulent
enemies to recruit, train and support those who would destroy our country. If we
sanction this kind of so-called freedom, we risk horrible consequences. The
Paris bombing is small stuff compared with what would happen if our civilian
airline system were crippled. I fear that in response to more terrorism, we
would see repression on a terrifying scale.
Martin London, of counsel to the law firm Paul, Weiss, Rifkind,
Wharton & Garrison, has litigated First Amendment issues.
A version of this op-ed appears in print on January 24, 2015, on page A19 of the
New York edition with the headline:
Why Tolerate Terrorist Publications?.
Why Tolerate Terrorist Publications?,
JAN 23, 2015,
Let’s Give Up on the Constitution
December 30, 2012
The New York Times
By LOUIS MICHAEL SEIDMAN
AS the nation teeters at the edge of fiscal chaos, observers are reaching the
conclusion that the American system of government is broken. But almost no one
blames the culprit: our insistence on obedience to the Constitution, with all
its archaic, idiosyncratic and downright evil provisions.
Consider, for example, the assertion by the Senate minority leader last week
that the House could not take up a plan by Senate Democrats to extend tax cuts
on households making $250,000 or less because the Constitution requires that
revenue measures originate in the lower chamber. Why should anyone care? Why
should a lame-duck House, 27 members of which were defeated for re-election,
have a stranglehold on our economy? Why does a grotesquely malapportioned Senate
get to decide the nation’s fate?
Our obsession with the Constitution has saddled us with a dysfunctional
political system, kept us from debating the merits of divisive issues and
inflamed our public discourse. Instead of arguing about what is to be done, we
argue about what James Madison might have wanted done 225 years ago.
As someone who has taught constitutional law for almost 40 years, I am ashamed
it took me so long to see how bizarre all this is. Imagine that after careful
study a government official — say, the president or one of the party leaders in
Congress — reaches a considered judgment that a particular course of action is
best for the country. Suddenly, someone bursts into the room with new
information: a group of white propertied men who have been dead for two
centuries, knew nothing of our present situation, acted illegally under existing
law and thought it was fine to own slaves might have disagreed with this course
of action. Is it even remotely rational that the official should change his or
her mind because of this divination?
Constitutional disobedience may seem radical, but it is as old as the Republic.
In fact, the Constitution itself was born of constitutional disobedience. When
George Washington and the other framers went to Philadelphia in 1787, they were
instructed to suggest amendments to the Articles of Confederation, which would
have had to be ratified by the legislatures of all 13 states. Instead, in
violation of their mandate, they abandoned the Articles, wrote a new
Constitution and provided that it would take effect after ratification by only
nine states, and by conventions in those states rather than the state
No sooner was the Constitution in place than our leaders began ignoring it. John
Adams supported the Alien and Sedition Acts, which violated the First
Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every
constitution should expire after a single generation. He believed the most
consequential act of his presidency — the purchase of the Louisiana Territory —
exceeded his constitutional powers.
Before the Civil War, abolitionists like Wendell Phillips and William Lloyd
Garrison conceded that the Constitution protected slavery, but denounced it as a
pact with the devil that should be ignored. When Abraham Lincoln issued the
Emancipation Proclamation — 150 years ago tomorrow — he justified it as a
military necessity under his power as commander in chief. Eventually, though, he
embraced the freeing of slaves as a central war aim, though nearly everyone
conceded that the federal government lacked the constitutional power to disrupt
slavery where it already existed. Moreover, when the law finally caught up with
the facts on the ground through passage of the 13th Amendment, ratification was
achieved in a manner at odds with constitutional requirements. (The Southern
states were denied representation in Congress on the theory that they had left
the Union, yet their reconstructed legislatures later provided the crucial votes
to ratify the amendment.)
In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion
to the document, but as a statement of aspirations rather than obligations. This
reading no doubt contributed to his willingness to extend federal power beyond
anything the framers imagined, and to threaten the Supreme Court when it stood
in the way of his New Deal legislation. In 1954, when the court decided Brown v.
Board of Education, Justice Robert H. Jackson said he was voting for it as a
moral and political necessity although he thought it had no basis in the
Constitution. The list goes on and on.
The fact that dissenting justices regularly, publicly and vociferously assert
that their colleagues have ignored the Constitution — in landmark cases from
Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should
give us pause. The two main rival interpretive methods, “originalism” (divining
the framers’ intent) and “living constitutionalism” (reinterpreting the text in
light of modern demands), cannot be reconciled. Some decisions have been
grounded in one school of thought, and some in the other. Whichever your
philosophy, many of the results — by definition — must be wrong.
IN the face of this long history of disobedience, it is hard to take seriously
the claim by the Constitution’s defenders that we would be reduced to a
Hobbesian state of nature if we asserted our freedom from this ancient text. Our
sometimes flagrant disregard of the Constitution has not produced chaos or
totalitarianism; on the contrary, it has helped us to grow and prosper.
This is not to say that we should disobey all constitutional commands. Freedom
of speech and religion, equal protection of the laws and protections against
governmental deprivation of life, liberty or property are important, whether or
not they are in the Constitution. We should continue to follow those
requirements out of respect, not obligation.
Nor should we have a debate about, for instance, how long the president’s term
should last or whether Congress should consist of two houses. Some matters are
better left settled, even if not in exactly the way we favor. Nor, finally,
should we have an all-powerful president free to do whatever he wants. Even
without constitutional fealty, the president would still be checked by Congress
and by the states. There is even something to be said for an elite body like the
Supreme Court with the power to impose its views of political morality on the
What would change is not the existence of these institutions, but the basis on
which they claim legitimacy. The president would have to justify military action
against Iran solely on the merits, without shutting down the debate with a claim
of unchallengeable constitutional power as commander in chief. Congress might
well retain the power of the purse, but this power would have to be defended on
contemporary policy grounds, not abstruse constitutional doctrine. The Supreme
Court could stop pretending that its decisions protecting same-sex intimacy or
limiting affirmative action were rooted in constitutional text.
The deep-seated fear that such disobedience would unravel our social fabric is
mere superstition. As we have seen, the country has successfully survived
numerous examples of constitutional infidelity. And as we see now, the failure
of the Congress and the White House to agree has already destabilized the
country. Countries like Britain and New Zealand have systems of parliamentary
supremacy and no written constitution, but are held together by longstanding
traditions, accepted modes of procedure and engaged citizens. We, too, could
draw on these resources.
What has preserved our political stability is not a poetic piece of parchment,
but entrenched institutions and habits of thought and, most important, the sense
that we are one nation and must work out our differences. No one can predict in
detail what our system of government would look like if we freed ourselves from
the shackles of constitutional obligation, and I harbor no illusions that any of
this will happen soon. But even if we can’t kick our constitutional-law
addiction, we can soften the habit.
If we acknowledged what should be obvious — that much constitutional language is
broad enough to encompass an almost infinitely wide range of positions — we
might have a very different attitude about the obligation to obey. It would
become apparent that people who disagree with us about the Constitution are not
violating a sacred text or our core commitments. Instead, we are all invoking a
common vocabulary to express aspirations that, at the broadest level, everyone
can embrace. Of course, that does not mean that people agree at the ground
level. If we are not to abandon constitutionalism entirely, then we might at
least understand it as a place for discussion, a demand that we make a
good-faith effort to understand the views of others, rather than as a tool to
force others to give up their moral and political judgments.
If even this change is impossible, perhaps the dream of a country ruled by “We
the people” is impossibly utopian. If so, we have to give up on the claim that
we are a self-governing people who can settle our disagreements through mature
and tolerant debate. But before abandoning our heritage of self-government, we
ought to try extricating ourselves from constitutional bondage so that we can
give real freedom a chance.
Louis Michael Seidman,
a professor of constitutional law at Georgetown
is the author of the forthcoming book
“On Constitutional Disobedience.”
Let’s Give Up on the Constitution,
The First Amendment, Upside Down
June 27, 2011
The New York Times
The Supreme Court decision striking down public matching funds in Arizona’s
campaign finance system is a serious setback for American democracy. The opinion
written by Chief Justice John Roberts Jr. in Monday’s 5-to-4 decision shows
again the conservative majority’s contempt for campaign finance laws that aim to
provide some balance to the unlimited amounts of money flooding the political
In the Citizens United case, the court ruled that the government may not ban
corporations, unions and other moneyed institutions from spending in political
campaigns. The Arizona decision is a companion to that destructive landmark
ruling. It takes away a vital, innovative way of ensuring that candidates who do
not have unlimited bank accounts can get enough public dollars to compete
Arizona’s campaign finance law provided a set amount of money in initial public
support for candidates who opted into its financing system, depending on the
type of election. If a candidate faced a rival who opted out, the state would
match the spending of the privately financed candidate and independent groups
supporting him, up to triple the initial amount. Once that limit is reached, the
publicly financed candidate receives no other public funds and is barred from
using private contributions, no matter how much more the privately financed
Chief Justice Roberts found that this mechanism “imposes a substantial burden”
on the free speech rights of candidates and independent groups because it
penalized them when their spending triggered additional money for a candidate
who opted into the public program. The court turns the First Amendment on its
head. It denies the actual effect of the Arizona law, which is not to limit
spending but to increase it with public funds. The state program expands
political speech by giving all candidates, not just the wealthy, a chance to run
— while allowing privately financed candidates to spend as much as they want.
Justice Elena Kagan, writing in dissent, dissects the court’s willful
misunderstanding of the result. Rather than a restriction on speech, she says,
the trigger mechanism is a subsidy with the opposite effect: “It subsidizes and
produces more political speech.” Those challenging the law, she wrote, demanded
— and have now won — the right to “quash others’ speech” so they could have “the
field to themselves.” She explained that the matching funds program — unlike a
lump sum grant to candidates — sensibly adjusted the amount disbursed so that it
was neither too little money to attract candidates nor too large a drain on
Arizona’s system was a response to a history of terrible corruption in the
state’s politics. Rather than seeing the law as a way to control corruption, the
court struck it down as a limit on the right of wealthy candidates and
independent groups to speak louder than others.
The ruling left in place other public financing systems without such trigger
provisions, including public financing for presidential elections. It shows,
however, how little the court cares about the interest of citizens in Arizona or
elsewhere in keeping their electoral politics clean.
The First Amendment,
A Bruise on the First Amendment
June 21, 2010
The New York Times
Forty-three years ago, when the nation lived in fear of Communist
sympathizers and saboteurs, the Supreme Court said that even the need for
national defense could not reduce the First Amendment rights of those
associating with American Communists.
On Monday, in the first case since the Sept. 11, 2001, attacks to test free
speech against the demands of national security in the age of terrorism, the
ideals of an earlier time were eroded and free speech lost. By preserving an
extremely vague prohibition on aiding and associating with terrorist groups, the
court reduced the First Amendment rights of American citizens.
The case was not about sending money to terrorist organizations or serving as
their liaison, activities that are clearly and properly illegal. And it did not
stop people from simply saying they support the goals of groups like Hamas or Al
Qaeda, as long as they are not actually working with those groups. But it could
have a serious impact on lawyers, journalists or academics who represent or
study terrorist groups.
The case arose after an American human rights group, the Humanitarian Law
Project, challenged the law prohibiting “material support” to terror groups,
which was defined in the 2001 Patriot Act to include “expert advice or
assistance.” The law project wanted to provide advice to two terrorist groups on
how to peacefully resolve their disputes and work with the United Nations. The
two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’
Party — have violent histories and their presence on the State Department’s
official list of terrorist groups is not in dispute.
But though the law project was actually trying to reduce the violence of the two
groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf
of five other justices, said that did not matter and ruled the project’s efforts
illegal. Even peaceful assistance to a terror group can further terrorism, the
chief justice wrote, in part by lending them legitimacy and allowing them to
pretend to be negotiating while plotting violence.
In a powerful dissent, Justice Stephen Breyer, also speaking for Justices Ruth
Bader Ginsburg and Sonia Sotomayor, swept away those arguments. If providing
legitimacy to a terror group was really a crime, he wrote, then it should also
be a crime to independently legitimize a terror group through speech, which it
is not. Never before, he said, had the court criminalized a form of speech on
these kinds of grounds, noting with particular derision the notion that peaceful
assistance buys negotiating time for an opponent to achieve bad ends.
The court at least clarified that acts had to be coordinated with terror groups
to be illegal, but many forms of assistance may still be a criminal act,
including filing a brief against the government in a terror-group lawsuit.
Academic researchers doing field work in conflict zones could be arrested for
meeting with terror groups and discussing their research, as could journalists
who write about the activities and motivations of these groups, or the
journalists’ sources. The F.B.I. has questioned people it suspected as being
sources for a New York Times article about terrorism, and threatened to arrest
them for providing material support.
There remains a reasonable way of resolving these disputes. Justice Breyer
proposed a standard that would criminalize this kind of speech or association
“only when the defendant knows or intends that those activities will assist the
organization’s unlawful terrorist actions.” Because he was unable to persuade a
majority on the court, Congress needs to enact this standard into law.
A Bruise on the First
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