LS 305 Week 2 Assign APA Ronald Blair
LS 305 Week 2 Assign APA Ronald Blair
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Date Created: 11/09/15
Running head: WEEK TWO ASSIGNMENT 1 Week Two Assignment Ronald Blair Ls 305 November 20, 2012 Professor James Kent WEEK TWO ASSIGNMENT 2 Week Two Assignment Congress shall make no law…. abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievancesFirst Amendment. How and why did the framers of the First Amendment intend to protect freedom of speech? What kind of speech did they intend to protect? Did the framers envision any limitations on protected speech? If so, what are some of those limitations and their rationales? The following will analyze the intention of the framers of the First Amendment in regard to freedom of speech, free government, protected speech and limitations on protected speech. How and why the framers of the First Amendment intended to protect freedom of speech and how this relates to the term “free government.” How the framers of the Constitution intended to protect speech was through not allowing Congress to make a law abridging freedom of speech. This in turn is interpreted as no government, whether federal or state, can take away societies freedom of speech. Why the framers of the Constitution had the intention to protect speech was because of their experiences under the England's system. In England there was no freedom of religion, there was no freedom of speech, and there was censorship of books. The framers intended on an amendment that would curb the government control over the abovementioned issues. According to the textbook, the intent of the framers of the Constitution was that freedom of speech meant freedom from government control over the content of public disclosure.” Additionally, “The WEEK TWO ASSIGNMENT 3 framers concern was with protecting the free exchange of ideas the First Amendment embodies the belief that a free marketplace of ideas is essential to creating an informed citizenry capable of selfgovernment” (Kanovitz, 2010). This relates to free government in the following ways It allows citizens to participate in political decisionmaking, in which it allows citizens to make informed and wise choices in elections, and allows citizens to voice their opinions on different political positions (Linder, 2011). Also, it also promotes the discovery of truth, if citizens are allowed to speak the truth and challenge falsehoods; they will be able to make informed decisions (Linder, 2011). Additionally, free speech is a check and balance against abuse of government power freedom to demonstrate that freedom of the press ensures that society will learn about abuses of governmental power (Linder, 2011). What kinds of speech did they intend to protect? The intention of the framers was to protect speech that may criticize the government without fear of reprisal or punishment. It was also the framers intention to prohibit the government from censoring speech, or inhibiting the free exchange of ideas. Do you think that they envisioned any limitations on protected speech? “We must never forget it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs” Chief Justice John Marshall. Although Justice Marshall was not a framer of the First Amendment, I believe most recognize that the framers used broad principles that do not so much change over time, but the WEEK TWO ASSIGNMENT 4 application of the amendments change as society changes. The framers recognized that they could not define things to narrowly, and allowed the window of growth and interpretation. Limits on protected speech Protected speech is limited in that it cannot promote imminent lawless action. The first test was Schenck v. United States , 249 U.S. 47 (1919), which form the clear and present danger test, meaning that fighting words must be intended to result in a clear and present danger. The next test was Whitney v. California, 274 U.S. 357 (1927), in which the Supreme Court adopted the “bad tendency” test., This was a less restrictive test, in which Words were considered fighting words if they merely tended to be likely to provoke a lawless response. Finally, the last test is the Brandenburg test, in which speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is likely to incite or produce such action. The three distinct elements of this test (intent, imminence, and likelihood) requiring an actual empirical finding of imminent harm. It is important to note, that threats must be specific in nature, to constitute a true threat, the speaker must mean to communicate a serious expression of intent to commit an act of unlawful violence against a particular person or group of persons (James Kent, 2012). Additionally, the First Amendment does not protect fighting words. The case of set this precedent was Chaplinsky v. Few Hampshire, 315 U.S. 568 (1942). Fighting words are inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace (Legal Information Institute, 2012). Also, obscenity is not protected by the First Amendment, this is defined using the Miller test from Miller v. California, 413 U.S. 15 (1973). This states that obscenity includes the following WEEK TWO ASSIGNMENT 5 criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value (Legal Information Institute, 2012). Finally, commercial speech is afforded less protection under the First Amendment than noncommercial speech. In conclusion, Congress shall make no law…. abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievancesFirst Amendment. The framers of the First Amendment intended to protect freedom of speech. Their intention was to protect speech that may criticize the government without fear of reprisal or punishment. Additionally, there are limits on protected speech as well as unprotected speech, such as; fighting words, obscenity, commercial speech, and speech that will promote imminent lawless action. WEEK TWO ASSIGNMENT 6 References Kanovitz, J. (2010). Constitutional law. (Twelfth Edition ed.). New Providence: Matthew Bender & Company, Inc. (Kanovitz, 2010) Kent, James. (2012, November). Unit 2 power point presentation. Power Point First amendment, Online. Retrieved from https://kucampus.kaplan.edu/Seminar Legal Information Institute. (2012). Fighting words. Retrieved from http://www.law.cornell.edu/wex/fighting_words Linder, D. (2011). Umkc.edu. Retrieved from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/firstaminto.htm
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