Tuesday, April 8, 2008

Freedom to be vulgur?

Anything wrong with the following laws?

Are these laws designed for general good of the society?
Are these laws imposed by a few on the others?

1. You cannot vote until you are 18 or 21
2. You cannot drive over 20 at School Zones
3. You cannot smoke in the public places
4. You cannot burn the flag of the United States
5. You cannot deny employment to any one based on race, religions or gender
6. You cannot deny Holocaust.
7. You cannot drink and drive
8. You cannot perform sexual acts in a public square
9. You cannot buy sex on the street from a willing seller
10. You cannot say ethnic jokes
11. You cannot use N word
12. You cannot sell Marijuana

What is wrong if we pass laws making it a;

1. Crime to print and publish offensive material to any group.
2. Crime to publish Muhammad's offensive cartoons
3. Crime to publish or display Jesus in anything but respectful postures
4. Crime to use the Hindu symbols and God icons in disrespectful manner.
5. Crime to show disrespect to other's holy books.

One should have freedom with responsibility, is it time to honor the rights of others?
Shall we scrap all the restrictions placed in the 12+ items listed above.

Take a look at the following records and render your opinion... if there is enough support to include the additional restrictions in the protection category, we should go after it.

Courtesy of: http://en.wikipedia.org/wiki/First_Amendment

The First Amendment to the United States Constitution is a part of the United States Bill of Rights. On its face, it prohibits the United States Congress from making laws "respecting an establishment of religion" (the "Establishment Clause") or that prohibit free exercise of religion (the "Free Exercise Clause"), laws that infringe the freedom of speech, infringe the freedom of the press, limit the right to assemble peaceably, or limit the right to petition the government for a redress of grievances.

"Congress shall make no law respecting an establishment of religion, or 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."


The Supreme Court did not consider a single case in which it was asked to strike down a federal law on the basis of the Free Speech Clause until the twentieth century. The Alien and Sedition Acts of 1798 were never ruled upon by the Supreme Court, and even the leading critics of the law, Thomas Jefferson and James Madison, argued for the laws' unconstitutionality on the basis of the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment). [1]

War protests
The Supreme Court under Chief Justice Earl Warren expanded free speech protections in the 1960s, though there were exceptions. However, in 1968, the Court upheld a law prohibiting the mutilation of draft cards in United States v. O'Brien 391 U.S. 367 (1968). The Court ruled that protesters could not burn draft cards because doing so would interfere with the "smooth and efficient functioning" of the draft system. Then again, in 1971, the court found that a person could not be punished for wearing, in the corridors of the Los Angeles county Courthouse, a jacket reading "Fuck the Draft," Cohen v. California (403 U.S. 15).

Anonymous speech

In 1960, the court in Talley v. California, (362 U.S. 60) struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. [2]

Flag burning

The divisive issue of flag burning as a form of protest came before the Supreme Court in 1989, as it decided Texas v. Johnson. The Supreme Court reversed the conviction of Gregory Johnson for burning the flag by a vote of five to four. Justice William J. Brennan, Jr. asserted that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." Many Congressmen criticized the decision of the Court and the House of Representatives unanimously passed a resolution denouncing the Court.[3] Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman (1990). Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Flag Burning Amendment has consistently mustered sufficient votes to pass in the House of Representatives, but not in the Senate. In 2000, the Senate voted 63–37 in favor of the amendment, which fell four votes short of the requisite two-thirds majority. In 2006, another attempt fell one vote short.

The federal government and the states have long been permitted to restrict obscenity or pornography. While obscenity generally has no protection under the First Amendment, pornography is subject to little regulation. The exact definition of obscenity and pornography, however, has changed over time.

When it decided Rosen v. United States in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin. The Hicklin standard defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." In 1957, the Court ruled in Roth v. United States that the Hicklin test was inappropriate. Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."

In 1964 Justice Potter Stewart, in Jacobellis v. Ohio, famously stated that, although he could not precisely define pornography, "I know it when I see it."

The Roth test was expanded when the Court decided Miller v. California in 1973. Under the Miller test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest; thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value. Child pornography is not subject to the Miller test, as the Supreme Court decided in 1982. New York v. Ferber, 458 U.S. 747 (1982). The Court thought that the government's interest in protecting children from abuse was paramount.

Yet, personal possession of obscene material in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia, Justice Thurgood Marshall wrote, "if the First Amendment means anything, it means that a State has no business telling a man sitting in his own house what books he may read or what films he may watch." It is not, however, unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition (2002) further upheld these rights by invalidating the Child Pornography Prevention Act of 1996, holding that, because the act "[ . . . ]prohibit[ed] child pornography that does not depict an actual child[ . . . ]", it was overly broad and unconstitutional under the First Amendment. Justice Anthony M. Kennedy wrote: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

U.S. courts have upheld certain regulation of pornography. U.S. courts have found that regulation and banning pornography as a way of protecting children meets the strict scrutiny test. A zoning regulation which restricts where pornography can be viewed is valid if the purpose for the statute is based on secondary effects, the zoning is not related to the suppression of the pornographic content and the statute makes other ways of viewing the content.

Libel, slander, and private action
American tort law creating liability for defamatory speech or publications—slander and libel—traces its origins to English law. The nature of American defamation law was vitally changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan. The New York Times had published an advertisement indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the Civil Rights Movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice William J. Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice", a difficult standard to meet.

The actual malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private individuals normally need only to prove negligence on the part of the defendant.

Content regulation

The courts have rarely treated content-based regulation of the press with any sympathy. In Miami Herald Publishing Co. v. Tornillo (1974), the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure press responsibility. Finding that only freedom, and not press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the government may not force newspapers to publish that which they do not desire to publish.
Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. The Supreme Court, however, has ruled that the problem of scarcity does not permit the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis.

What do you think?
Please write your comments.

Mike Ghouse

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