The First Amendment to the United States Constitution prohibits the making of any law regarding the establishment of a state religion, ensuring that there is no prohibition on the free exercise of religion, the abridgment of the freedom of speech, the infringement of the freedom of the press, the infringement of the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights. The Bill of Rights was originally proposed to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York, 268 US 652 (1925), the Supreme Court applied the First Amendment to states, a process known as incorporation, through the Due Process Clause of the Fourteenth Amendment.
In Everson v. Board of Education 330 US 1 (1947), the Court drew on Thomas Jefferson’s correspondence to call for “a wall of separation between church and State,” though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of twentieth and twenty-first century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.
The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota 283 US 697 (1931) and New York Times v. United States 403 US 713 (1971), the Supreme Court ruled that the First Amendment protected against prior restraint and pre-publication censorship, in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the Right of Peaceable Assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects Freedom of Association. The most recent adaptation to the First Amendment is Citizens United v. Federal Election Commission, 558 US 310 (2010), which increased the value of money in political campaigns.
Freedom of speech and expression are not absolute, and common limitations to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violations, trade secrets, non-disclosure agreements, the right to privacy, the right to be forgotten, public security, and perjury. Justifications for such include the harm principle, proposed by John Stuart Mill in, On Liberty, which suggests that, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
The idea of the Offense Principle is also used in the justification of speech limitations, describing the restriction on forms of expression deemed offensive to society, considering factors such as extent, duration, motives of the speaker, and ease with which it can be avoided. With the evolution of the digital age, application of the freedom of speech becomes more controversial as new means of communication and restrictions arise, for example the Golden Shield Project, an initiative by the Chinese government’s Ministry of Public Security that filters potentially unfavorable data from foreign countries.
Freedom of Speech is the right to articulate one’s opinions and ideas without fear of government retaliation or censorship, or societal sanction. The term, Freedom of Expression, is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that “everyone shall have the right to hold opinions without interference,” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Article 19 additionally states that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary ” for “respect of the rights or reputation of others” or for “the protection of national security or of public order, or of public health or morals.”
The Flag Desecration Amendment, often referred to as the Flag Burning Amendment, is an American proposed law, in the form of a constitutional amendment to the Bill of Rights, that would allow the U.S. Congress to prohibit by statute and provide punishment for the physical desecration of the flag of the United States. The concept of flag desecration continues to provoke a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty said to be represented by that national symbol. While the proposed amendment is frequently referred to colloquially in terms of expression of political views through flag burning, the language would permit the prohibition of all forms of flag desecration, which may take forms other than burning, such as using the flag for clothing or napkins. The most recent attempt to adopt a flag desecration amendment failed in the United States Senate by one vote on June 27, 2006.
Now, having explored, in a brief manner, the concept of the Freedom of Speech, and the idea of a proposed flag burning amendment to the Constitution of the United States, what does a veteran have to say on the subject? First, as is noted in the Constitution, and is noted in the international documents cited, the Freedom of Speech is a protected and natural freedom that all humans possess by right of birth. Further, that freedom should not be infringed upon, unless in very serious situations, whereas, the practice of that right shall have infringed upon the rights of other’s ability to exercise that right. Citizens United is not free speech because it gives corporations the ability to drown out the free speech of average citizens with the use of absolutely ridiculous amounts of money. However, the burning of a flag, minus a few people who cannot get past the symbol, only offends those few people, and it certainly does not infringe upon those people’s ability to openly criticize the people who wish to burn the flag as a part of their freedoms of speech and expression. It is, therefore, the opinion of this former soldier that the burning of the American flag is a protected right under the United States Constitution.
Just to step aside for a brief moment. One should take a moment to understand the history of flag burning. Flag burning is actually a military tradition when an old flag is retired. If it is not kept as a memento, it is burned in respect to the people that fought and died while in service under it. To finalize this piece, I and my many brothers and sister have put our lives on the line to defend the First Amendment’s guarantee to the right to the freedom of speech. If people can’t see that the flag is just a symbol, while the freedom of speech is the real concept at large, then they need to check their belief system. A symbol can change or fall away, but a natural human right will live on forever. One can change a cultural axiom with the whims of a given society, while a natural right is something that will never die, no matter the society that exists around it.
What do you think? Do you like what is being said here? To check out more of Kent Allen Halliburton’s work, visit his politics and history blog. You will find yourself entranced at www.refusetocooperate3.blogspot.com.
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