From the beginning on Americans have proclaimed liberty, have fought wars in its name have evaluated events and institutions and politics in the light of liberty. They were convinced that they are free people and they always wanted to serve as a model for the rest of the world. Besides the Declaration of Independence, the Constitution, ratified on the 17th of September 1787, is the fundamental document that symbolizes this freedom and that serves as a legal basis of the juridical system of the United States. This original document does not include speech freedom and freedom of the press, which are two of the most important liberties a free nation should have. The Bill of Rights that includes these liberties was added later, as amendments to the original document.
However, the Constitution and its amendments serve as more or less strict guidelines, as the text is not unambiguous. It is difficult to interpret the twisted language of it and as I will show in this work, the opinions reach from one extreme to the other. Justices of the Supreme Court play a leading role in interpreting the Constitution, therefore a lot of juridical cases deal directly or indirectly with the interpretation of the Constitution and are a subject of this term paper.
In this term paper I am going to show how the original Constitution was finally ratified, and how difficult it is to change this document. The aim of the Framers was to make the changing of the Constitution as challenging as possible. The difficulty of the amendment process is explained with the help of an example; The Equal Rights Amendment. After discussing the basis of the amendment process I will analyze how freedom of speech and freedom of the press has been interpreted since the ratification of the Bill of Rights. I will explain that speech freedom does not mean unlimited freedom of speech, and will introduce cases that step by step show how complete freedom of speech was allowed or how for example the "clear and present danger test" and the "bad tendency test" limited it. Then I will go into further detail and examine cases that deal with slander, libel and obscenity, expressions that are not protected by the First Amendment.
Discussing the interpretation of Freedom of Speech is a wide topic and I was forced to leave out some aspects. Sedition, criminal conduct such as bribery, pre jury, or incitement to riot does not or only partly form part of this term paper.
Table of Contents
1. Introduction
2. The ratification of the Constitution
2.1 How the Constitution can be changed - the amendment process
2.1.1. ERA as an example for amending the Constitution
3. Freedom of speech and its limits
3.1. Cases dealing with freedom of speech
3.2. Slander and libel
3.2.1. Symbolic speech
3.3. Obscenity
3.3.1 Child audience
4. Conclusion
Research Objective and Key Themes
This paper examines the inherent difficulty of the U.S. constitutional amendment process and analyzes the interpretation and legal limitations of freedom of speech and the press under the First Amendment.
- The historical process and challenges of ratifying and amending the U.S. Constitution.
- The Equal Rights Amendment (ERA) as a case study for the complexity of constitutional change.
- The evolution of judicial tests limiting freedom of speech (e.g., "clear and present danger").
- Legal distinctions and protections concerning slander, libel, and symbolic speech.
- The legal challenges and moral debates surrounding the regulation of obscenity and child access to information.
Excerpt from the Book
3.3. Obscenity
Just like slander and libel, obscenity does not enjoy the protection of the First Amendment. Obscenity, obscene acts, utterances, or items are seen as contrary to public standards of sexual morality. Because public standards vary, any definition of obscenity is relative to the time and place in which it is formulated. Obscene items are often called pornography although the two expressions are not exactly the same. Obscenity is a legal concept that applies to those forms of pornography only, that society considers the most harmful to sexual morality, and that it punishes under criminal law. So pornography is illegal only if judged to be obscene and in this case it is outside of the protection of the Constitution. But as mentioned further above, public standards vary, so it is hard to give an exact definition what obscenity is and what enjoys the protection of the First Amendment.
Kalven tries to define what obscenity could be, he mentions four possibilities, and tries to reduce these to the one that can be prosecuted.
[T]he possible evils of obscenity are at most four: (i) The material will move the audience to anti-social sexual action; (ii) the material will offend the sensibilities of many in the audience; (iii) the material will advocate or endorse improper doctrines of sexual behavior; and (iv) the material will inflame the imagination and excite, albeit privately a sexual response from the body (Kalven 1988:33).
Summary of Chapters
1. Introduction: The introduction outlines the foundational role of the Constitution and the Bill of Rights, establishing the paper's focus on the difficulty of constitutional amendments and the judicial interpretation of speech limitations.
2. The ratification of the Constitution: This chapter details the historical struggle for constitutional ratification, the emergence of Federalists versus Anti-Federalists, and the subsequent addition of the Bill of Rights.
2.1 How the Constitution can be changed - the amendment process: This section explains the formal procedures defined in Article V and the significant challenges of achieving the required majorities for change.
2.1.1. ERA as an example for amending the Constitution: This subsection uses the failure of the Equal Rights Amendment to illustrate the practical difficulties in amending the Constitution even when faced with significant public support.
3. Freedom of speech and its limits: This chapter examines the scope of the First Amendment and the necessity of judicial tests to balance free expression against potential societal harm.
3.1. Cases dealing with freedom of speech: This section reviews landmark Supreme Court decisions, including the "clear and present danger" and "bad tendency" tests, as well as the later extension of protections in Brandenburg v. Ohio.
3.2. Slander and libel: This section discusses the exclusion of defamatory speech from First Amendment protections and the evolving legal standards regarding public figures and "actual malice."
3.2.1. Symbolic speech: This subsection analyzes whether non-verbal expressions, such as flag burning or wearing armbands, qualify as protected speech under the First Amendment.
3.3. Obscenity: This section explores how the law distinguishes between protected speech and illegal obscenity, noting the difficulty of applying universal standards to evolving morality.
3.3.1 Child Audience: This subsection addresses the specific legal tensions between protecting minors from harmful content and upholding the constitutional rights of the broader public.
4. Conclusion: The conclusion synthesizes the findings, emphasizing that while the Constitution is a stable foundation, its interpretation remains dynamic and subject to constant judicial review in a changing society.
Keywords
Constitution, United States, Amendment, Bill of Rights, Freedom of Speech, First Amendment, Judicial interpretation, Supreme Court, Slander, Libel, Symbolic speech, Obscenity, Censorship, Child protection, Public figures
Frequently Asked Questions
What is the fundamental objective of this work?
The paper aims to demonstrate the deliberate difficulty of amending the U.S. Constitution and how the judicial system interprets the limitations of the First Amendment regarding free speech.
What are the central thematic areas covered in the document?
The core themes include the constitutional amendment process, the historical debate surrounding the Bill of Rights, and the judicial evolution of tests determining the limits of free expression.
What primary research question guides this study?
The study investigates why the Constitution is so challenging to change and how the judiciary balances the right to free speech against the need for legal limitations in areas like slander, libel, and obscenity.
Which scientific or analytical methods are employed?
The author uses a historical and legal analysis approach, focusing on constitutional texts, case law, and the interpretation of Supreme Court rulings to explain current constitutional practices.
What issues are addressed in the main part of the paper?
The main part covers the ratification struggle, the amendment process (using the ERA as a case study), and detailed analyses of First Amendment limitations, including tests for incitement, defamation, symbolic acts, and obscenity.
Which keywords best characterize the content of the paper?
Key terms include Constitution, First Amendment, Freedom of Speech, Amendment process, Supreme Court, Slander, Libel, Obscenity, and Symbolic speech.
How does the author characterize the Equal Rights Amendment (ERA) case?
The author views the ERA as an excellent example of how the strict requirements of Article V, combined with political opposition and interpretation debates, can block even widely supported constitutional changes.
Why did the Supreme Court struggle with the regulation of the Internet?
The author explains that early attempts by Congress to protect minors online, such as the Communications Decency Act, were struck down by courts because they were too broad and infringed upon the constitutional rights of adults to access information.
- Quote paper
- Renate Bagossy (Author), 2004, The Difficulty of the Amendment Process of the Constitution of the United States of America and Freedom of Speech and its limits, Munich, GRIN Verlag, https://www.grin.com/document/40948
