webber@constance.rutgers.edu (Bob Webber) (05/03/88)
In article <913@cresswell.quintus.UUCP>, ok@quintus.UUCP (Richard A. O'Keefe) writes: > In article <4163@dasys1.UUCP>, gf@dasys1.UUCP (G Fitch) writes: > > ... > > Free speech, by the way, includes obnoxious speech. > > Is this last statement true in the US? Under British law, & legal systems > derived from it, various sorts of offensive speech (having nothing to do > with politics) can be illegal. You might want to keep in mind that at the time the U.S.Constitution was formulated, many people unhappy with British law were still in power. A nice overview of the Bill of Rights can be found in The Bill of Rights by Judge Learned Hand (The Oliver Wendell Holmes Lectures, 1958 -- Harvard University Press, 1958). In the third lecture, The Guardians, discussion is opened with: First as to speech. That privilege rests upon the premise that there is no proposition so uniformly acknowledged that it may not be lawfully challenged, questioned, and debated. It need not rest upon the further premise that there are no propositions that are not open to doubt; it is enough, even if there are, that in the end it is worse to suppress dissent than to run the risk of heresy. Hence it has been again and again unconditionally proclaimed that there are no limits to the privilege so far as words seek to affect only the hearers' beliefs and not their conduct. The trouble is that conduct is almost always based upon some belief, and that to change the hearer's belief will generally to some extent change his conduct, and may even evoke conduct that the law forbids. [cf. Learned Hand, The Spirit of Liberty, University of Chicago Press, 1952; The Art and Craft of Judging: The Decisions of Judge Learned Hand, edited and annotated by Hershel Shanks, The MacMillian Company, 1968.] [Incidently, just as there are people arguing for more circumscribed application of the first amendment, there are also reasonable cases being made to further restrict the situations where the government will intervene in the exercise of free speech to protect some other right. Libel law and such derives not from agreed upon a priori restrictions on free speech, but rather from compromises reached in attempts to balance the right of free speech against other rights. No where in the constitution will you find a right not to be insulted.] > Forgive an alien for misunderstanding, but wasn't the basic idea behind > freedom of speech to ensure that it would be legal for people to criticise > the government? (If someone could point me to the relevant essays in the > Federalist Papers?) Actually, the Bill of Rights does not derive from the Federalist discussions. As late as the penultimate #84, we have Hamilton arguing: ``Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?'' And in #85 he goes on to tell people that it will be easier for them to get their amendments after the constitution is ratified as prior to ratification all 13 states would have to agree whereas afterward only 9 would have to agree. To find defense of the need for a Bill of Rights, [and the First Amendment, in particular] you will probably have to look elsewhere. ----- BOB (webber@athos.rutgers.edu ; rutgers!athos.rutgers.edu!webber) The late rebellion in Massachusetts has given more alarm than I think it should have done. Calculate that one rebellion in 13 states in the course of 11 years, is but one for each state in a century and a half. No country should be so long without one. Thomas Jefferson in letter to James Madison, 20 December 1787