Poll on Free Speech limitations

[Enforcer]

A poll prompted by the discussion about gun ownership laws. Another Constitutional right that draws controversy from time to time, like the issue of gun controls. Interestingly, it's often the people who adamantly defend one who challenge the other.

[Gary Sisco]

And on what basis would make such a claim, Larry?

The only people I know who champion the 1st Amendment but not the 2nd is the ACLU and allied likeminds in liberlaland. I've always said that if the ACLU championed or even paid attention to any other but the 1st, 4th, 5th and 14th Amendments, I'd pay my dues. But they haven't. And won't.

[Enforcer]

Gary,

My point was that those who advocate more controls on guns to protect our society from their dangers often are not in favor of adding restrictions to free speech to keep us safe from that other kind of danger.

[Gary Sisco]

True dat, many times. I agree.

There's a very interesting free speech situation in the Netherlands today, re Islam and "Western" values. (What's "West" on a globe?) I can't say that I have an answer for them.

[Uli]

Originally Posted by Gary Sisco

The only people I know who champion the 1st Amendment but not the 2nd is the ACLU and allied likeminds in liberlaland.

Maybe the ACLU does not consider the bearing of arms a civil right. It's been a long time since I did a bit more indepth reading on the 2nd amendment. Yesterday I did a quick google search to see what has substantially changed in the debate since. The only thing I could find is that Ashcroft's Justice department in a brief changed the long term neutrality of the executive branch on the issue and defined bearing arms as an individual right. Interesting that the paranoid gun nuts are more in agreement than ever with the far right wing.

[Gary Sisco]

Whether they do or don't, it's a constitutional as well as a civil right in this country, Uli, and if they can defend Nazis, KKK, and etc, it's rather a glaring lack of principle. Perhaps they should change their name.

[Uli]

Originally Posted by Gary Sisco

Whether they do or don't, it's a constitutional as well as a civil right in this country, Uli, and if they can defend Nazis, KKK, and etc, it's rather a glaring lack of principle. Perhaps they should change their name.

They defend all individuals' rights to free speech. Whether the right to bear arms is an individual civil right or not in this country, Gary, is actually the disputed issue for the 2nd amendment among constitutional experts. afaik the ACLU does not defend States' rights.

Originally Posted by Gary Sisco

......and if they can defend Nazis, KKK, and etc,....

NAMBLA

Although, I'm very happy to see so many folks coming out against hate crime laws.


This site is finally starting its move to the right.

[Dr Dave]

I picked b) as an answer because I believe the current spate of ever more graphic sexuality on the tube is the death rattle of the TV business. As I have said elsewhere, and repeatedly, when you don't know how to tell a story, you use shock. (No-talents like Howard Stern aren't called "shock jocks" for nothing.) Either people will tire of it and turn it off, or perhaps we'll become a Nation Of Masturbators. Wait, we already ARE a Nation of Masturbators.

[bostontricky]

I didn't see a "More Sex, Less Violence" option, so I'm abstaining.

[jeff54]

Originally Posted by Larry Nagel

A poll prompted by the discussion about gun ownership laws. Another Constitutional right that draws controversy from time to time, like the issue of gun controls. Interestingly, it's often the people who adamantly defend one who challenge the other.

Maybe it's because sticks and stones (and bullets) can break my bones but names can never hurt me.

[moneyp]

I voted for the third option (even though I think the wording is leading) because I'm in favor of government being left out of the regulation. If the networks (and radio stations) want to regulate themselves, that's fine, and if the citizenry wants to force the networks to some standards of good taste through activism, I wholeheartedly support them. But throw the FCC into the junk pile where it belongs.

[Enforcer]

Originally Posted by jeff54

Maybe it's because sticks and stones (and bullets) can break my bones but names can never hurt me.

Hey, the guy who said "The pen is mightier than the sword" has more clout!

[moneyp]

Originally Posted by Gary Sisco

it's a constitutional as well as a civil right in this country

Extremely debatable. In fact, I've brought up the debatability of this once and never received a response from you, Gary. Once more, if you feel like responding this time:

"There is an unbroken chain of federal decisions, spanning 60 years, ruling that the Second Amendment does not confer an individual right to possess firearms. Courts have consistently held that the amendment's language--"A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed"--only gives the states the right to maintain well-regulated militias, which since 1903 have taken the form of the National Guard.

Despite this clear legal history, the National Rifle Association for years has advanced the view that the amendment provides a fundamental right to private gun ownership that cannot be abridged by the passage of gun control laws. Despite its efforts, the NRA's interpretation of the Second Amendment has never passed constitutional muster in the courts; the group has litigated and funded several Second Amendment cases in federal courts, but has never won any."

I urge everyone who feels their second amendment rights are being violated to let us know precisely which "well-regulated militia" they purport to belong to.

[cookie]

I grudgingly chose #2. Hey, I really think it *should* be #3. But as with all pornographyand offensive material, it's a "community standards" thing. Porn may be cool in your hotel room, but nudity on say, a billboard would probably make most communities uncomfortable. I'm not necessarily for limiting offensive and pornographic material, but rather, for keeping it in its place.

Agreed.


100%

[walto]

Originally Posted by Mone

I voted for the third option (even though I think the wording is leading) because I'm in favor of government being left out of the regulation. If the networks (and radio stations) want to regulate themselves, that's fine, and if the citizenry wants to force the networks to some standards of good taste through activism, I wholeheartedly support them. But throw the FCC into the junk pile where it belongs.

I really don't get this "citizens good, government bad" thing. Citizens on their own are like vigilante squads--who's gonna control them? Governments ARE citizens who (ideally of course) are told what to do by votes (rather than, say, money or guns). Go down to your town hall some day and see who's doing stuff there. You'll find that it's your neighbors, not Soviet politburo members.

Anyhow, IMHO, Reagan's gutting of the FCC (or putting most of it into the junk pile) was among the worst things that ever happened to TV. It's now basically commercials 20 minutes of each half-hour. If you're lucky, Bush will junk the rest of it and you'll be able to pay twice what you're now paying for cable and watch nothing but infomercials.

[Gary Sisco]

Apparently not debatable in any court that matters. And why would "the people" in one amendment not be "the people" in another?

In any case, it matters not, because the 2nd Amendment is in the Constitution, so get used to it. The Constitution is amendable by those who can get off their ass and do some political work instead of running their mouths and hoping some statist geek will violate in for them, someday. But the antifirearms nuts won't even try, because they know that they don't have the politidal pull to do it and that they are absolutely and forever outnumbered. Thank goodness. And thank it even more that most of them associate themselves with a party that is deservedly on its way to the famous dustbin.

[Uli]

It's you who is runninng your mouth, Gary. Your obviously brainwashed by NRA propaganda. Here a short synopsis from the findlaw website. Check it out, do your homework and come back when you know what you're talking about:

U.S. Constitution: Second Amendment

Second Amendment - Bearing Arms

Amendment Text | Annotations

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


Annotations

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ''individual rights'' thesis whereby individuals are protected in ownership, possession, and transportation, and a ''states' rights'' thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.1 Whatever the Amendment may mean, it is a bar only to federal action, not extending to state2 or private3 restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.

In United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ''[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.''5 The significance of the militia, the Court continued, was that it was composed of ''civilians primarily, soldiers on occasion.'' It was upon this force that the States could rely for defense and securing of the laws, on a force that ''comprised all males physically capable of acting in concert for the common defense,'' who, ''when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.''6 Therefore, ''[i]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well- regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''7

Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms,8 and proposals for national registration or prohibition of firearms altogether have been made.9 At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer.

[Gary Sisco]

Possession is 9/10ths of the law, Uli. So is use. 200+ firearms in private hands in the US. Nuff said.

If you don't like it, I've said continuously that the Constitution is amendable. So do some political work.

What amazing laziness of body and mind.

[Uli]

Originally Posted by Gary Sisco

If you don't like it, I've said continuously that the Constitution is amendable. So do some political work.

What amazing laziness of body and mind.

This is my last post on the subject. That facts are: It's not clear what the Constitution means. It is very disputed among experts on the Constitution. It has not been clarified enough by the Supremes.

I don't have an opinion either way but it could as well be you who has to do the political work to amend the Constitution.

What amazing stubberness.

[shrugs]

I always thought it's the way that the 2nd is worded as well as the others written in the same time period that confuses people.
It's black and white. It's the right of the people to bear arms but that comma before the statement makes it a little confusing for people because it makes it seem like this right is connected to the militia aspect of the amendment.

[shrugs]

Originally Posted by Uli

This is my last post on the subject. That facts are: It's not clear what the Constitution means. It is very disputed among experts on the Constitution. It has not been clarified enough by the Supremes.

I don't have an opinion either way but it could as well be you who has to do the political work to amend the Constitution.

What amazing stubberness.

These experts will always need an issue to argue for the sole reason of justifying their jobs, grants or whatever they get bvecause you know they ain't doing it for free.

[Gary Sisco]

I don't have to do the work, Uli. It was done for me already in the 18th Century. I don't have any problem with the way the amendment is written, apart from it not being radical enough, by comparison to the state constitutions of the time, or to the Republic of Vermont's, which still exists as the state's constitution, and which declares flatly that the people have an absolute right to keep and bear arms because a standing army is a threat to liberty.

In any case, if I were going to amend anything in the Constitution, it wouldn't be any of the amendments, it would be many parts of the body of the document itself.

Never in American history has the Constitution ever been amended in such a way as to restrict existing freedoms and rights. Now, the radical right wants to amend it to restrict the rights of homersekkshals (including radical right homersekkshals) and the liberlas want to take away my means of defending myself from the radical right AND the liberlas.

Thankfully, many millions of Americans take issue with both, and I am one.

And since you are not, that's the way it is, baby. Get used to it.

[Gary Sisco]

It is clear what the Constitution means, because one can read the arguments about it of the day, as they transpired, word for word, and there is also the congressional record to read, and so forth. And in any case, it was clearly intended to be an evolving document as society changes, or they would not have included an amendment process to begin with.

Shrugs -- At the time in question, neither spelling nor punctuation had been standardized in English. It was printers who eventually instituted the standardizations, to make their and readers' lives easier. But otherwise you are correct.

No one has ever replied to why the people in one amendment are not the people in another. Never mind why that would be so for only one out of ten amendments.

I happen also to live in a town that was named after Thomas Jefferson, for Jeffersonian reasons, obviously, and in that town still today is the land that had been set aside by the town for militia drills. They never had any question as to who or what the militia was, centuries before anyone had ever dreamed of a "National Guard" (which would have been violently resisted in any case, at the time). It was the men of the town. Period. When the militia was "called out," it was the adult men who came out, with their own, privately owned arms. Period.

[Tom Storer]

I personally find Mone's and shrug's posts convincing. The liberlas don't need to try to amend the Constitution because the courts have consistently agreed with them for quite some time. You'd amend the Constitution if you wanted to change its meaning; if the courts agree that your interpretation of the meaning is already correct, there's nothing to change. I suspect the Supreme Court justices read "the arguments about it of the day, as they transpired" just as carefully as you did, Gary.

As for the wording, the commas make it a little odd to read nowadays but the meaning seems clear to me. Punctuated as we would nowadays, it says:

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

In other words, why are the people granted the right to keep and bear arms? To be able to form the well regulated militia that is necessary to the security of a free State.

Originally Posted by Gary Sisco

I happen also to live in a town that was named after Thomas Jefferson, for Jeffersonian reasons, obviously, and in that town still today is the land that had been set aside by the town for militia drills. They never had any question as to who or what the militia was, centuries before anyone had ever dreamed of a "National Guard" (which would have been violently resisted in any case, at the time). It was the men of the town. Period. When the militia was "called out," it was the adult men who came out, with their own, privately owned arms. Period.

Are Vermont men still regularly called out for militia drill? Or is that a custom that has not been practiced for generations?

In any case, people do still have the right to keep and bear arms, obviously. Regulating that ownership doesn't seem unreasonable to me, any more than requiring a driver's license to drive seems an unreasonable infringement on anyone's rights.

[clinthopson]

Here's another example of the administration's assault on the First Amendment:

Will voices of dissent still be heard?
U.S. firms now need OK to publish authors from nations under sanction.



By Scott Martelle, Times Staff Writer


In the summer of 1956, Russian poet Boris Pasternak — a favorite of the recently deceased Joseph Stalin — delivered his epic "Doctor Zhivago" manuscript to a Soviet publishing house, hoping for a warm reception and a fast track to readers who had shared Russia's torturous half-century of revolution and war, oppression and terror.

Instead, Pasternak received one of the all-time classic rejection letters: A 10,000-word missive that stopped just short of accusing him of treason. It was left to foreign publishers to give his smuggled manuscript life, offering the West a peek into the soul of the Cold War enemy, winning Pasternak the 1958 Nobel in literature and providing Hollywood with an epic film.







These days, Pasternak might not fare so well.

In an apparent reversal of decades of U.S. practice, recent federal Office of Foreign Assets Control regulations bar American firms from publishing works by dissident writers in countries under sanction unless they first get U.S. government approval.

The restriction, condemned by critics as a violation of the 1st Amendment, means that books and other works banned by some totalitarian regimes cannot be published freely in the United States, a country that prides itself as the international beacon of free expression.

"It strikes me as very odd," said Douglas Kmiec, a constitutional law professor at Pepperdine University and former constitutional legal counsel to Presidents Ronald Reagan and George H.W. Bush. "I think the government has an uphill struggle to justify this constitutionally."

Several groups, led by the PEN American Center and including Arcade Publishing, have filed suit in U.S. District Court in New York seeking to overturn the regulations, which cover writers in Iran, Sudan, Cuba, North Korea and, until recently, Iraq.

Violations carry severe reprisals — publishing houses can be fined $1 million and individual violators face up to 10 years in prison and a $250,000 fine.

"Historically, the United States has served as a megaphone for dissidents from other countries," said Ed Davis of New York, a lawyer leading the PEN legal challenge. "Now we're not able to hear from dissidents."

Yet more than dissident voices are affected.

The regulations already have led publishers to scrap plans for volumes on Cuban architecture and birds, and publishers complain that the rules threaten the intellectual breadth and independence of academic journals.

Shirin Ebadi, the 2003 Nobel Peace Prize winner, has joined the lawsuit, arguing that the rules preclude American publishers from helping craft her memoirs of surviving Iran's Islamic revolution and her efforts to defend human rights in Iranian courts.

In a further wrinkle, even if publishers obtain a license for a book — something they are loathe to do — they believe the regulations bar them from advertising it, forcing readers to find the dissident works on their own.

"It's absolutely against the 1st Amendment," fumed Arcade editor Richard Seaver, who hopes to publish an anthology of Iranian short stories. "We're not going to ask permission [to publish]. That reeks of censorship. And 'censorship' is a word that gets my hackles up very quickly."

Officials from the U.S. Treasury Department, which oversees OFAC, declined comment on the lawsuit, but spokeswoman Molly Millerwise described the sanctions as "a very important part of our overall national security."

"These are countries that pose serious threats to the United States, to our economy and security and our well being around the globe," Millerwise said, adding that publishers can still bring dissident writers to American readers as long as they first apply for a license.

"The licensing is a very important part of the sanctions policy because it allows people to engage with these countries," Millerwise said. "Anyone is free to apply to OFAC for a license."

Critics say they shouldn't have to.

"We have a long tradition of not accepting prior restraint," said Wendy Strothman of Boston, who hopes to serve as Ebadi's literary agent should the regulations be struck down. "The notion of getting a license seems to me to be completely counter to the spirit of the 1st Amendment…. It's really, for me, mostly about the notion of freedom of expression."

Strothman found the logic behind the restrictions perplexing.

"It strikes me as incredible irony that we worry about the value of our intelligence system while cutting off the voices of people we should be hearing from," she said. "We need to be hearing what people on the street are thinking around the world."

The literature that might be lost to American readers is impossible to measure, but in recent months the bestseller lists have been dominated by Azar Nafisi's "Reading Lolita in Tehran," a memoir she wrote in exile. And Marjane Satrapi's graphic novel, "Persepolis: The Story of a Childhood," written and published after her family left Iran for France, has found an international audience.

Tom Miller, author of "Trading With the Enemy: A Yankee Travels Through Castro's Cuba," said the regulations not only "nullify the 1st Amendment" but would dampen the hopes of censored Cuban writers.

"It would be all the more depressing," said Miller, who travels to Cuba several times a year under U.S. licenses for journalistic, academic or cultural purposes. "There are two places Cubans get published outside of Cuba — Spain and the States. To cut that short list in half is devastating. In the U.S., it means less artistic and literary infusion from overseas."

Curt Goering, deputy executive director for the Amnesty International human rights monitoring group, criticized the regulations as "a violation of some fundamental human rights."

Goering said international covenants recognize the right of people to receive and distribute information regardless of political boundaries. "It's yet another example of the hypocrisy of this administration on human rights," Goering said, adding that while the U.S. defends its role in Iraq as a defense of liberty at home it is "blocking" publication of dissident voices.

Kmiec, who is not part of the legal challenge, said the 1st Amendment — and subsequent court rulings — generally preclude the government from restricting publications before they are made.

"It does allow for limitations where there are clear and present dangers and compelling foreign policy or other interests that can be tangibly and authentically demonstrated," Kmiec said. "But short of that special application and very rare circumstance, government censorship is properly off-limits. These efforts to restrain in advance are almost sure to fail."

The dispute centers on a Treasury Department interpretation this year of regulations rooted in the 1917 "Trading With the Enemy Act," which allows the president to bar transactions with people or businesses in nations during times of war or national emergency. A 1988 amendment by Rep. Howard Berman (D-North Hollywood) relaxed the act to effectively give publishers an exemption while maintaining restrictions on general trade.

In April, OFAC regulators amended an earlier interpretation to advise academic publishers that they can make minor changes to works already published in sanctioned countries and reissue them.

But the regulators said editors cannot provide broader services considered basic to publishing, such as commissioning works, making "substantive" changes to texts, or adding illustrations.

The regulations seem shaded by Joseph Heller's classic novel "Catch-22."

American publishers are allowed to reissue, for example, Cuban communist propaganda or officially approved books but not original works by writers whom the Cuban government has stifled.

In a letter to Treasury officials this past spring, Berman described the regulations as "patently absurd" and said they form a "narrow and misguided interpretation of the law."

"It is in our national interest to support the dissemination of American ideas and values, especially in nations with oppressive regimes," Berman said. "At the same time, [the Berman amendment] is intended to ensure the right of American citizens to have access to a wide range of information and satisfy their curiosity about the world around them."

Had the current Treasury regulations been in place during the Cold War, such dissidents as Pasternak, Alexander Solzhenitsyn and Vaclav Havel could not have been published unlicensed in the U.S.

But they were published. And while those writers faced severe reprisals at home — including years of prison camps — knowing that the outside world was listening helped keep their hopes alive.

"It was like a constant life support," said Serguei Oushakine, a doctoral candidate in anthropology at New York's Columbia University and a former Russian culture professor at Altai State Technical University in Barnaul, Siberia.

Oushakine said the dissidents' Cold War-era writings in the samizdat — the underground Russian self-publishing network — and the tamizdat — works published abroad — infused the political culture of the 1970s and 1980s. Dissident voices helped inform eventual reformers such as Mikhail Gorbachev, who "took some of the dissidents' ideas for granted."

"These publications provided an immediate influx of literature and ideas when changes started happening," Oushakine said. "[They] formed a certain pool of people who could act as moral authorities of some kind in a situation when previous hierarchies collapsed."

Without them, he believes, perestroika would not have been possible and the collapse of the former Soviet regime would have unfolded much differently and much more slowly.

"If you take this long view, I think such a publishing was extremely important and necessary for the Soviet Union," Oushakine said. "And I think it could be useful for countries like Iran, Cuba or North Korea."

[Darryl G. Thomas]

I chose the 3rd option because frankly I want to see hard core porn on the broadcast networks. I shouldn't have to pay for cable of rent DVDs for my "entertainment".

Seriously, I feel if you don't like what's on the tube turn it off or better yet, don't buy a TV. Don't like a book? Don't buy it. Don't like a movie? Don't go see it. Don't want your kids exposed? Supervise them. Don't deny me my adult pleasures just because you're too lazy to parent.

[Douglas]

I've no strong opinions one way or the other, but I'd be interested in those who have a stong view what they think of the (I think reasonably common) limitation that the depiction of a woman being raped should not show her enjoying it.