Second vs. First Amendment

[TXAZ]

Journalist say the First Amendment is inviolate, and (their speech in particular), no matter how slanderous / libelous bad (short of yelling "fire" in a theater) cannot be infringed.

"IF that is true", they why isn't the Second Amendment on equal footing?

I would expect significantly more people have died due to lies told by the press and (particularly by world leaders) than by guns.

Just curious.

 

[rpenmanparker]

There are limits on free speech. It is not unlimited. One is not allowed to spread falsehoods with malicious intent. The limits make the system workable. See how that works? Funny that your analogy between the first and second amendments is actually quite useful...just not how you envisioned.

 

[Longhorn1986]

Hitler, Stalin & Mao to my knowledge, never pulled the trigger themselves. Their speeches, however caused the deaths of approximately 100,000,000. Remind me again, which is more dangerous, RTKBA or unrestricted speech?

One is not allowed to spread falsehoods with malicious intent. The limits make the system workable.

Just as one cannot (legally) discharge firearms to injure or kill others unless very specific criteria are met.

 

[Frank Ettin]

Journalist say the First Amendment is inviolate, and (their speech in particular), no matter how slanderous / libelous bad (short of yelling "fire" in a theater) cannot be infringed.

"IF that is true", they why isn't the Second Amendment on equal footing?....

First, what journalists have said that, when, exactly how, and in what context? And in any case, it's not true.

The First Amendment reads :

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 First Amendment thus protects freedom of speech, the press, assembly and religion against laws that abridge those rights. but nonetheless there has been a history of certain regulation of speech, assembly and religion. Nonetheless, there is a long history of couts sustaining laws (both federal laws and, after the First Amendment began to be held applicable to the States through the Due Process Clause of the Fourteenth Amendment, state laws) regulating (and thus abridging) rights protected by the First Amendment. A few examples are:

• Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech.
  
  
• If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech.
  
  
• Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
  
  
  • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

    ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

    
    
    • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
      
      
    • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):

      ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).
      
      By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....

    
    
  • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

    ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

  
  
• In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
  
  But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

  ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

  
  
• In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

 

[zukiphile]

Judith Miller spent time in jail for refusing to testify about her sources. That sort of thing is a rarity, but it does happen.

One is not allowed to spread falsehoods with malicious intent.

Malice is actually a pretty common motive for spreading falsehoods, and that kind of thing isn't prohibited in advance (unless you subject to an injunction in a consumer case), a prior restraint being the analogue for not letting someone buy a gun.

If someone can prove that you intended the injury you caused them with false statements, they may successfully sue you, but we don't keep you from doing it in advance.

The limits make the system workable. See how that works?

How does that work? I don't have confidence that limiting the amount of direct campaign contributions makes our system workable.

Funny that your analogy between the first and second amendments is actually quite useful...just not how you envisioned.

It shows that the breadth, protection and history of 1st Am. cases is much greater.

 

[johnwilliamson062]

I am unaware of any restrictions of word processors, printing presses, type size, etc.
There are limits on broadcast frequency and strength.

Anyone with the money can buy a commercial press to match the NYT or WP.
Anyone with the money can purchase web hosting to support millions of visitors.

 

[Aguila Blanca]

There are limits on free speech. It is not unlimited. One is not allowed to spread falsehoods with malicious intent.

In addition to what Frank Ettin wrote above, keep in mind the question of prior restraint. The simple fact is that we ARE allowed to spread falsehoods with malicious intent. There are no background checks or licenses required before we get to shoot off our mouths.

HOWEVER -- If what comes out of our mouths is false and malicious (i.e. libelous or slanderous) we can be held accountable for that. After the fact, which is the way it should be. If you slander someone, there's no rush to pass onerous new laws that require everyone else to jump through hoops before they are allowed to say or write something. Yet with guns, the goal is to punish millions of innocent, law-abiding people because of the actions of a very few nutcases.

I don't think the free speech analogy works very well.

 

[Frank Ettin]

...In addition to what Frank Ettin wrote above, keep in mind the question of prior restraint. The simple fact is that we ARE allowed to spread falsehoods with malicious intent. There are no background checks or licenses required before we get to shoot off our mouths....

First, there's no reason to expect a correspondence between the permissible regulation of rights protected by the First Amendment and the permissible regulations of rights protected the Second Amendment. The former has been by now worked out over a lot of years, while the latter is just starting to be worked out; and whether or not a particular regulation of a right protected by either will be uniquely examined in the context of the nature of the right, the nature and effect of the regulation, the purpose of the regulation, and what has been decided to be the appropriate level of scrutiny.

Second, there's no blanket rejection of prior restraint in connection with rights protected by the First Amendment. Prior restraint is certainly alive and well in various areas of commercial speech, and even Near accepts that possibility that prior restraint could be constitutionally appropriate under certain circumstances.

Really the only point of my outline in post 4 is to demonstrate that notwithstanding the "no law...abridging" language of the First Amendment rights protected by the First Amendment are amenable to some regulation.

 

[Spats McGee]

I'm on my first cup of coffee today, so I'm not up for digging up citations yet. With that said, I'll make a couple of points:

1. You most assuredly can yell fire in a crowded theater. And there are penalties if doing so causes a stampede and people are injured. You most assuredly can write defamatory things about someone. And there are penalties for doing so. However, we don't take your word processor (or your mouth) away to keep you from doing those things.

2. Both the A1 and A2 rights have been held to be "fundamental, individual rights." In theory, this should put them on equivalent footing in terms of constitutional scrutiny -- strict scrutiny. In reality, that's not what we've seen from the lower courts. Not by a long shot. Unfortunately, SCOTUS has thus far declined to announce strict scrutiny as the appropriate level of scrutiny. This is one of the things that led to a fairly vocal dissent from Clarence Thomas in connection with SCOTUS recent decision not to hear a 2A case. He said that the 2A was being treated like a "second class right," and I agree with him.

 

[LogicMan]

There are limits on free speech. It is not unlimited. One is not allowed to spread falsehoods with malicious intent. The limits make the system workable. See how that works? Funny that your analogy between the first and second amendments is actually quite useful...just not how you envisioned.

If the First Amendment was limited like the Second routinely is, journalists would be losing their minds.

 

[LogicMan]

If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech.

I think those are more than just free speech issues though, because they aren't just opinions or criticisms of things but rather information that if false could seriously harm people, financially and/or health-wise.

 

[44 AMP]

Are you saying opinions or criticisms of things don't ever seriously harm people, financially and/or health-wise??

You need to take a better look around, if you are...

 

[LogicMan]

Are you saying opinions or criticisms of things don't ever seriously harm people, financially and/or health-wise??

You need to take a better look around, if you are...

No, but I think there is a difference between an opinion and/or criticism versus selling a product in which the use of it could harm people if you give them misleading information about what is in it.

 

[zukiphile]

If the First Amendment was limited like the Second routinely is, journalists would be losing their minds.

Indeed. They'd be right too.

I think those are more than just free speech issues though, because they aren't just opinions or criticisms of things but rather information that if false could seriously harm people, financially and/or health-wise.

Speech always has some consequence; that's why people speak, or don't.

I'd offer an alternative to the idea that restrictions on commercial and political speech aren't about speech - commercial and polirical restrictions are about speech, and those restrictions depart from the text of the COTUS.

You might have a good argument for a food vendor being forced to say something about the fat content of its food, but maybe that argument should properly have you seeking amendment of the "shall make no law" part of the COTUS.

Where people above explain speech restrictions, that isn't necessarily an argument that those restrictions are optimal or faithful to specific COTUS text. The difference between what is and what should be, or between historical development and text can be large. Moreover, that distance isn't something new. The Sedition Act was a speech restriction arising at the end of the 18th century; tough to square that with "shall make no law".

 

[jdc1244]

…why isn't the Second Amendment on equal footing?

Level of judicial review.

Most, if not all, measures seeking to preempt or limit speech and religious expression are subject to strict scrutiny; as we know that’s not the case with firearm regulatory measures.

 

[44 AMP]

You might have a good argument for a food vendor being forced to say something about the fat content of its food,...

I believe that when you talk about product claims, you are no longer under the 1st Amendment authority, but are under the "regulate interstate commerce" rules.

That makes a huge difference.

 

[zukiphile]

I believe that when you talk about product claims, you are no longer under the 1st Amendment authority, but are under the "regulate interstate commerce" rules.

That makes a huge difference.

I don't see that as a persuasive explanation of the difference.

As the power of the federal government was expanding under FDR, commercial speech was afforded less protection than other speech. A regulation on commercial speech would not be subjected to strict scrutiny, whereas other speech regs would. So, if the government seeks to prohibit publication of the Anarchists Cookbook, it needs to show that the prohibition is narrowly tailored to further a compelling government interest. On the other hand, if the government seeks to stop you from saying that Calgon is an ancient chinese laundry secret, it only has to show that the government interest is important and the prohibition is a means substantially related to that interest. Subsequently, the Sup Ct reduced even that level of scrutiny when examining commercial speech.

In summary, the Court decided that commercial speech is less protected by the Constitution than other speech. Clearly, nothing in the 1st Am. suggest that Congress "shall make no law" unless they have a reason to, but there it is. Similarly, nothing in the 1st Am. suggests that the right to keep and bear arms shall not be infringed unless it's a good idea to infringe the right.

The process is much like the interstate commerce clause jurispridence. The point of Wickard is that the Sup Ct during the New Deal decided that where the Constitution gives the Congress the power to regulate interstate commerce, that actually means that it also has the power to regulate much that is not in interstate commerce.

So, a person might rationally conclude that a cigarette vendor needs to include a health warning on the pack, that commercial speech that could deceive people should be prohibited, that a man who grows wheat for his own use should be prohibited by congress from doing it, but there is a lot of distance between the reality of those powers and the text of the constitution.

 

[LogicMan]

Level of judicial review.

Most, if not all, measures seeking to preempt or limit speech and religious expression are subject to strict scrutiny; as we know that’s not the case with firearm regulatory measures.

IMO, strict scrutiny should be used in almost all Second Amendment cases, same as with the First. Not using it, IMO, is a weasel way for judges to not have to strike down gun control laws.

 

[L2R]

I have read enough to know that common sense has little to do with law and law is complicated but I am going to ask anyway.

Why isn't it automatic that any law restricting an amendment isn't scrubbed with strict scrutiny?

As that isn't the case, has anyone brought that to the courts to change that?

Since non of this is the case, would it make sense to pursue that to protect all our rights?

The red flag laws are really bothering me. Anyone who knows you own a gun can have it taken from you. This is going to drive gun owners underground and further silence our voices. It is a VERY effective way to keep many from standing and being counted.

 

[Aguila Blanca]

We've seen that some of the judges deciding gun control cases in favor of the gun control laws we think are unconstitutional claim to be using strict (or at least intermediate) scrutiny, although a reading of their decisions clearly shows that they are actually using interest balancing and calling it something else.

What was it Abe Lincoln said about dogs, legs, and tails?