Hey Platt,
PLATT
> Right now American's right to free speech is threatened by a
> misnamed Campaign Reform Act whereby no so-called special
> interest group funded by "soft money" will be able to criticize an
> incumbent President, Senator or Representative 60 days prior to
> election day . . . this in spite of a clause in the Constitution stating
> "Congress shall make no law abridging the freedom of speech."
RICK
Well Platt, your right that the Campaign finance bill does contain a
provision much like the one you describe above. I don't know how closely
you follow the legislative history of congressional actions (being in law
school I have to), but if you're really interested...
The provision was inserted into early drafts of the McCain/Feingold bill
by opponents (who come from both parties) in hopes that the clearly
unconstitutional passage would eventually make its way before the Supreme
Court, who presumably would strike it down. The same group hoped to include
a 'non-severability clause' which would mean that if the court found the one
part of the bill constitutionally offensive, it would have to strike the
whole bill down. The plan failed though. While this faction did get the
section you refer to into the bill, both Houses of Congress voted down the
non-severability clause.
In practical terms this means that the section your referring to will
either die in committee (when the two Houses reconcile their differing
versions of the bill) or will be quietly struck down by a federal court once
challenged without any consequences for the rest of the legislation.
PLATT
Oh, I forgot. The founders of the Constitution didn't really mean it. As we
have all learned by now, absolutes don't exist. (-:
RICK
Actually Platt, according to over 200 years of United States Supreme
Court Jurisprudence... the founders didn't intend an 'absolutist'
interpretation of the 1st amendment. What little historical evidence there
is about what went through the heads of our founding fathers when they
ratified the bill of rights suggests that in actuality, they were concerned
mainly with a free PRESS... Free speech seems to have been one of Madison's
last minute contributions; An afterthought really.
You have plunked yourself down into a centuries old argument about what
exactly was intended by the 1st amendment. There are very few scholars who
contend that the 1st amendment was meant to be absolute. Classic (and
relatively obvious) examples of exceptions include...
(1) the 'clear and present danger doctrine' - which essentially states that
the 1st amendment won't protect you from the consequences of falsely
shouting fire in a crowded theater.
(2) 'obsenity' - few people would argue that the 1st amendment prevents
government from making it illegal for porno-theaters to allow minors in.
(3) 'national security' - the 1st amendment doesn't prevent the president
from making battle plans 'classified' or our nuclear secrets 'top secret'
(although the extent of this power has often been questioned, nobody has
ever seriously suggested that it shouldn't exist).
(4) 'libel/slander' - the 1st amendment won't protect you against these sort
of charges
(5) 'copyright' - you're freedom of speech won't let you legally publish
Pirsig's first book as "Zen and the Art of Motorcycle Maintenance by Platt
Holden"
There are dozens of acknowledged exceptions and many (if not most) of
them are quite reasonable.
The most well-accepted interpretation of the history is that the
founders weren't worried about 'censorship' so much as they were worried
about 'censorship by a powerful, central government'. Notice the text of
the 1st amendment only prevents CONGRESS from making laws that abridge the
freedoms of speech, press, etc. The founders never intended to bind the
STATE governments.
In fact, the 1st amendment didn't even apply to the state governments
until after the ratification of the Due Process Clause of the 14th amendment
after the Civil War (even after the ratification of the 14th, it took years
before anyone thought to suggest that Due Process rights meant applying the
Bill of Rights to the States--- currently, most of the Bill of Rights,
though not all, applies to the states).
I can assure you Mr. Holden that if your searching for absolutes,
The law is definitely the wrong place to look,
rick
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