Robert Power - A Short and Happy Guide to the First Amendment

_____________

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

a short & happy guide to

The First Amendment

Robert C. Power

Associate Dean for Academic Affairs,
Distinguished Professor of Law
Widener University Commonwealth Law School

Mark C. Alexander

Professor of Law and Associate Dean for Academics
Seton Hall University School of Law

A SHORT & HAPPY GUIDE SERIES

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Bob thanks Charles and Jane Power, sorry that this is later rather than sooner. He thanks Paula Heider and Jeremy Wingert for their excellent help telling him what to do. He also wishes to acknowledge the work of various research assistants over the years, and specifically thanks Harrison Carruthers and Amanda Tarpitt as class representatives.

Mark thanks Tracy Alexander for encouraging and inspiring him to do this book. Many thanks to his beloved family; too many to single out any one, but deeply grateful for all. He is also grateful for support and assistance from Seton Hall University School of Law, its students, faculty and staff.

Both of us thank the excellent production staff at West Academic. You were superb to work with.

A Short & Happy Guide to the First Amendment

The First Amendment is in many ways a defining feature of our government. Coming after the Constitution itself creates the structure of government, the Amendments in large part spell out individual rights. The First Amendment protects the freedom of religion, speech and press, and the right to assemble and petition the Government. It transforms the Great Document from simply being about the government, to being about the people and their freedoms.

The problems we encounter in talking about the First Amendment are always interesting. They typically present situations with which we can easily identify, whether an individuals attempt to protest government policy, to ones desire to worship without interference, to what we see on television and online. The specific cases arelike Law & Order ripped from the headlines, as we talk about flag-burning, curse words, pornography, Ten Commandments displays, prayer in schools, campaign finance, and more. The specific problems are always interesting and challenging, like a good puzzle.

Interestingly, it all starts with the words Congress shall make no law, thus apparently applying an absolute ban on the federal government regulating these areas. Instead, we will see that the First Amendment has been interpreted broadly to apply to all governments, federal, state and local. And what may at first appear to be an absolute ban has been interpreted to allow very significant restrictions on speech, religion and the press.

We want to start with a broad philosophical discussion of what the First Amendment is about, to set up all that follows throughout these pages. In this book, we focus most heavily on speech and religion. Starting with speech, there are several broad, important themes that will be important for you to understand as we move forward. The basic question is Why do we provide for a protection of speech in this country? There are several possible answers, none of which is exclusive, and each of which is complementary to the others.

First, we might consider the First Amendment to be essential to the pursuit of truth in a marketplace of ideas. The government is not allowed to interfere with this market, so as to let good ideas rise and fall on their merits. So, for example, if I want to argue that the earth is flat, then I can. I believe it to be true. I am convinced. I approach you and tell you that if you look out from where you are standing, across the horizon, you can see that the earth comes to an end, and its a flat line out there. Think about it. It looks kinda flat to the naked eye. It ends, and when you get to the end, thats it. Flat. So you say that you are starting to believe me. Your search for the truth about our land is that it is flat. But then another friend comes up to you and says that you shouldnt listen to me. The earth is ROUND, she says! Amazing concept. How does she know? She has been on an airplane and could tell that theres something not quite flat from way up high. So you ask her, if shes sure, does she have any pictures. She says no, but shes pretty sure. Youre not convinced yet. The debate is going on in your head. Finally an old man comes up to you and tells you he is from Montclair, New Jersey. Buzz Aldrin is his name. He has been up to the moon in a space ship, and guess what he saw? The earth, round, like a big blue marble in space. And hes got pictures to prove it. So now, you change your mind, and you believe the earth is round. By allowing all of us to speak, uninhibited, the marketplace of ideas sorted out this little debate, and you found what you believe to be truethat the earth is in fact round. The First Amendment ensures that we can always have such debates.

Another way to look at the importance of the First Amendment is to view it as central to our nations commitment to self-governance through robust public debate. We as a people are committed to a system of government by which we are all allowed (and maybe even expected) to participate in governance. We threw away the mantle of monarchy in exchange for a government of the people, a democracy. In that context, it is essential for us all to participate, and for our participation not to be regulated by the government. Every day we are allowed to debate the policies of the governmentgood, bad or indifferent. President Obama wakes up each morning and looks out the window and can see someone out front on 1600 Pennsylvania Avenue with a sign that says Impeach Obama or Obama Sucks , or something like that. Before him, George W. Bush got to see protestors with the same message of ousting him from office, as did Bill Clinton before him, and so on and so on. The First Amendment protects that right, and prohibits the president or any government official from getting in the way of our self-governance.