Monday, July 02, 2007

right to free speech

some passersby at the forum mentioned that speech calling for the overthrow of the government is not protected by the first amendment, is this true? didn't jefferson say that it is the people's responsibility to create a new government if the present one isn't working on their behalf?

5 comments:

popi.and.tom said...

Please see this article in today's local paper:
Nevin, K.S., OSU's "Nuke" a Local Cause for Concern, Corvallis Gazette-Times, 7'3'07.
http://www.gazettetimes.com/articles/2007/07/03/news/opinion/6edi02_nevin0703.prt

nina said...

here's what came up when looking this up on Wikipedia:

Freedom of speech was influenced by anti-Communism during the Cold War. In 1940, Congress enacted the Smith Act to replace the Sedition Act of 1918, which had expired in 1921. The Smith Act made punishable the advocacy of "the propriety of overthrowing or destroying any government in the United States by force and violence." The law was mainly used as a weapon against Communist leaders. The constitutionality of the Act was questioned in the case Dennis v. United States 341 U.S. 494 (1951). The Court upheld the law in 1951 by a six-two vote (Justice Tom C. Clark did not participate because he had previously ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes' "clear and present danger" test when he wrote for the majority. Vinson suggested that the doctrine did not require the government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited", thereby broadly defining the words "clear and present danger". Thus, even though there was no immediate danger posed by the Communist Party's ideas, their speech was restricted by the Court.

Dennis has never been explicitly overruled by the Court, but subsequent decisions have in practice reversed the case. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States, 354 U.S. 298 (1957). The Supreme Court ruled that the Act was aimed at "the advocacy of action, not ideas". Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act.

***
kind of surprising to read. free speech really isn't all that free, is it?

my question is, since we can't talk about it, is there any law that says we cannot simply do it?

i like to follow the mantra that says know what the laws are for if the time comes you must bend or break them, you know what you're in for.

tkn said...

so the law says that we can't talk about overthrowing the government by force or violence. so the only way is through non-violence. the recent convictions of people for so called eco-terrorism is proof of that. i agree. the onus is on We the people to take back our government through non-violent social change. how do we do this? for starters we communicate with each other.

we figure out what our collective vision is for our time that we're here.

iow, unlike our revolutionary forefathers, we must continue the legacy of Martin Luther King, Jr. and march on washington, non-violently. i'm talking about all of us too busy working to make a trip to the nation's capital folks. i'm absolutely one of them. we need to get off our ass and march on washington to demand our government back. many activists have gone to the capitol over the years for various reasons, but not all of us. we need to make it happen.

blamin said...

Nina,

It does seem that the law is somewhat ambiguous, at first, but a closer read leads me to believe, that advocating violence is the caveat.

No matter how "sure one may believe he or she is, you can't incite others to illegal activity to force your view. We are a nation of laws (except for the privilaged) afterall.

But as Tim blogged, and Jefferson seemed to (and in practice, did!) suggest, there are have been times that history has been kind to the "righteous" for "taking the law into their own hands". (By "history" I mean the consensus after the fact, i.e. Americans believe the rebellion against the British was justified).

The various political philosophies of everything we hear or see is presented with "spin" and is scripted to solicit a certain response. We being the emotional creatures that we are, tend to believe that which we agree with is not "spun", while that which we disagree with is spun. This leads to a whole nation of people, where every citizen that "pays attention" believes, "we are right!!!" and the other side has been tricked.

So it comes full circle to what Tim suggested. Wether you do it legally or illegaly, you have to have a consensus of people's opinion on your side before anything will change. I would prefer to see a changing of peoples minds through debate.

And real debate would have people of both sides admitting that the other side may have a few decent points that haven't been fully considered.

tkn said...

from what i can tell, We the people have a consensus that the USA has increasingly become a nation ruled by elites under a guise of democracy and its time to take big money out of our government and close all loopholes that allow for "legal corruption".

Bill Moyers interviewed an old school conservative from the Goldwater campaign who, like Blamin suggests, had some excellent points. it made me think that a lot of my own ideas have a conservative angle to them. but not in the holy-roller/neo-con theocratic/plutocratic way of the administration.

blamin, do you have any ideas about which we can find common ground?