Libertarian philosophy impacts amendments

May 1 2013 - 12:50pm

There is a long history of First Amendment rights of freedom of speech and press being balanced against the public need for security and decency. Less than one decade after the First Amendment was adopted, when war with France was anticipated, the Sedition Act was passed in July of 1798. It was thus illegal to "write, print, utter or publish"  anything "false, scandalous and malicious" against the government, Congress or the president if the intent is to bring any of them into "contempt or disrepute" or to excite "hatred" against them. 

At that time the doctrine that truth was a defense against seditious libel was not widely accepted and every member of the Supreme Court in 1798-1800, sitting as an appellate judge, held it constitutional. In the first case involving this act, a man was fined $100 for wishing aloud that the wad of a salute canon would hit President John Adam's rear end.        

During World War I, the Espionage Act was used to imprison about 900 Americans who spoke against the war; its constitutionality was upheld by a unanimous Supreme Court.

This balancing of individual rights with society's needs was rejected by Justice Hugo Black (1937-1971). His absolutist approach was simple: follow the Constitution strictly to the letter. Thus, the First Amendment states, "Congress shall make no law ... abridging freedom of speech or of the press." Since the First Amendment makes no exception for pornography, Black held the Court could not. He did not need to  join the Court when they sought to determine what specific pornography was protected and if material had "no redeeming social importance." Black maintained the Constitution did not give  government the  power to censor.

His consistent ally, William O. Douglas, said if society wanted to censor, it should amend the Constitution and establish an office of censorship. These justices applied a libertarian philosophy in First Amendment issues. Libertarians make individual rights the highest priority, sometimes at the expense of society, the state, and children. Libertarian justices are inclined to strike down laws which majorities favor to protect individual rights. Libertarianism has had a major influence on U.S. legal history and society. There are several points related to its impact on the First and Second Amendments to consider:  

* We have more liberty today than ever, since individuals have more rights and government has fewer rights. It is difficult to imagine the Sedition Act ever reigned in this country. Today, people commonly utter and print false, slanderous, and malicious charges against President Barack Obama to bring him into disrepute or to excite hatred against him without any fear of big fines or imprisonment. Moreover, prior to 1925 (Gitlow v. New York) people enjoyed free speech rights at the pleasure of their state and states rejected the libertarian approach and had restrictive laws limiting pornography etc. Until 2010 (McDonald v. Chicago), states had the prerogative to limit handguns; today they don't. Because the judiciary has used the Fourteenth Amendment as a charter to apply expansive readings of the First and Second Amendments to the states, they have enlarged the scope of liberty beyond anything the Constitution's framers imagined.

* Various industries have a material interest in promoting the most libertarian interpretation possible. Certainly the gun industry will increase sales and profits if a libertarian philosophy prevails. Thus, the gun industry gave the National Rifle Association (NRA) ten of millions of dollars. Some of this money is used to falsely imply that the person who does not accept the NRA's interpretation of the Second Amendment doesn't accept the Second Amendment. A similar dynamic exists regarding the porn industry. Anti-pornography groups note: "The First Amendment belongs to those who can buy it." They lament that the multi-billion dollar pornography industry has shaped our concept of freedom of the press. No doubt, the Constitution's framers never anticipated they would be enabling or protecting pornography peddlers and school shooters, but when those amendments are given a libertarian reading by moneyed interests, that can be the result.

* A majority believes in the First Amendment, yet still want restrictions on pornography and certainly obscenity. Similarly, tens of millions of voters support the Second Amendment, but favor the measures that the administration advocates to reduce gun violence.

* Most Americans, including judges, tend to be inconsistent in interpreting the Constitution. Chief Justice Warren Burger (1969-1985), observed: "Labels are sophomoric simplifications. All judges are 'strict constructionists' on some portions of the Constitution," but not on other portions. Many shades of opinion exist. In a single 1951 case (Dennis v. U.S.), the nine justices produced five opinions, with four different interpretations of what the First Amendment protects. When it is claimed that unless a person believes in a particular interpretation of the First or Second Amendment then they must not believe in those Amendments, the response might be: "Says who?"

Jones lives in West Haven.

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