And here comes Consi to pee in the punch bowl…

I’d recommend serving up something other than Kool-Aid then. 

Nope, no retraction. I stand by that…

I’m sorry to read that.  I’m too tired to do the uberpost tonight, but will do so tomorrow.

As I look at the prospects of the coming 2008 election, I don’t even see a hint of cure in any of the candidates. We are once again placed in the position of selecting the lesser of evils.

This thinking is part of the problem. I have been voting Libertarian since I turned 18. Now, I know we are a long way off for putting someone in the white house, but that’s not the point. The point is to get those in power to realize that a enough voters out there feel this way. It doesn’t matter if you have the same beliefs as me, or you’re a hippie green party member. If you show a large enough presence politicians will have to start working with us (those not on the left or right).

Theocrat: I’d recommend defining freedom.  Certainly there are several actions one could commit in the “wild west” that no one could get away with now.

Sadie: Agreed, which could potentially render this debate particularly thorny. One hundred years ago women had no suffrage rights, no reproductive freedom, and public displays of homosexual affection would not have been tolerated. Then again, there was no Patriot Act, and many substances that are now illicit were widely available.

It just so happens that the folks at Freedom House actually do attempt to define what freedom is using a number of indicators and then ranks various countries based on how well they manage to meet up with those indicators. Every year since 1972 they’ve published a book detailing freedom in the world and they’ve just released excerpts from the 2007 scores. Here’s their definition for the word Freedom:

What is Freedom House’s definition of “freedom”?

Freedom is the opportunity to act spontaneously in a variety of fields outside the control of the government and/or other centers of potential domination. Freedom House measures freedom according to two broad categories: political rights and civil liberties. Political rights enable people to participate freely in the political process through the right to vote, compete for public office and elect representatives who have a decisive impact on public policies and are accountable to the electorate. Civil liberties allow for the freedoms of expression and belief, associational and organizational rights, rule of law, and personal autonomy without interference from the state.

The organization’s definition of freedom is derived in large measure from the Universal Declaration of Human Rights that was adopted by the United Nations General Assembly in 1948. The rights enumerated in the Universal Declaration include freedom of religion, expression, and assembly; freedom from torture; and the right to take part in the government of his or her country. These standards apply to all countries and territories, irrespective of geographical location, ethnic or religious composition, or level of economic development.

Sounds pretty good to me.

I’m with Benior in his perception that, all the negative things correctly cited by KPG aside, its not ALL downhill. These things often oscillate, if you will alow me the technical term. And certainly for many groups (women, gays, blacks etc...) much has improved in terms of legal and human rights in the last 100 years. So don’t assume its a long slide from some plateau of perfection.

Okay, here’s me being the reasonable, moderate voice. Rant on, KPG, for without outrage, nothing gets changed!

I have to say the only reason we lose our rights Is because we give them up. When people stop thinking that the small things matter; they soon lose sight of what is small.
If only people would realize that there is no society with out the person, but there is a person with out society. To paraphrase Locke we lend the right to govern to those we so chose. We don’t derive governace from any divine right, or truth.

KPG,

For starters, let me say that I’m usually on your side.  So, I mean no disrespect, personally, in the following posts.  That said, it seems to me that your post is based on an ignorance of the law.  (Ignorance being a lack of knowledge and is not being used by me to imply any lack of intellectual capabilities).

My understanding of your point is as you articulated it--Rights that you had 100 years ago are gone today, by government intervention. That’s the whole point here.  My understanding is that you believe your rights, meaning those enshrined in the Constitution, have been diminished by government intervention.

My response is not going to focus on any definition of freedom.  Define it if you like, let the other readers define it.  It is immaterial to my point.  My point is that we have seen a dramatic expansion of the rights that you mention rather than a loss of those rights, with one exception.  The applicable time period you have set is the last 100 years. 

The most illustrative examples that I know of to make my point are court cases.  So, I will be reviewing with the readers and you cases that discuss and expound upon the rights that you mention and discuss above.  It is my hope that with the additional history that: 1) It will be clear there has been an expansion rather than contraction of our the rights that you mention; 2) The “good ol’ days” might not seem so good; and 3) The obvious corollary causes you to question other aspects of your post.

I will be going through each Amendment to the Constitution for the first eight.  I will then discuss the impact of the 13th and 14th Amendment.  Following that, I will finish with a closing post.  I don’t intend to address comments until the closing post.  So, please don’t consider it an affront if I don’t respond until I’ve completed the series of posts.

It’s only right that our country should do away with discrimination.  It lets us crow about our freedoms, while ensuring that blacks, women, and perhaps soon gays, can be fleeced along with the patriarchal minority of white men.

Before Consi gets out his magnifying glass and buries the whole discussion in legal minutiae, I would like to say that it does seem there is a powerful element in society that is eroding some very basic freedoms while amplifying others out of all recognition.

By using fear as a core principle, they’ve been increasing government secrecy and creating a class of poorly-defined crimes for which one does not seem entitled to any defense.  By appointing judges who back their schema, they are reducing any possibility of address of grievance against the government without formally changing the law. By appointing government agency heads based on loyalty instead of competence, they’re undermining the effective outcome citizens expect from their tax dollars.  This is visible in the warping of scientific decision-making around ideological ends.  It affects policy, education, and of course Fox News, the government’s new agency.

And I can’t figure out what they hell they hope to accomplish with constant deficit spending. Surely these men must know that is not a good strategy in the long run?

But hey, guns, more guns, guns everywhere!  Guns are the answer to everything!  Would you like guns with that?  Perhaps because they know that gun ownership, long thought to be a hedge against tyranny, is pretty much irrelevant to the power of a modern state.  It gives citizens a false sense of power and they certainly don’t care if people shoot each other.

Above all the corporation, the military-industrial complex that Eisenhower warned us about, is being elevated to the status of unquestioned good.  The government is the plaything of corporations, with tort law and financial law (to say nothing of regulatory structure) a whitewash.  Flesh-and-blood humans have far less influence with government than bloodless corporations.  All this without changing the appearance of freedom on the surface.

An easily accessible copy of the Constitution may be found http://www.usconstitution.net/const.html

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

KPG has addressed the establishment clause, the right to free speech, and the right to assembly.  It is his contention that the existence of the FCC, the laws on the books regarding religion, the permit process for assembly, and for some heretofore unknown reason, George Carlin, collectively establish that our rights have been diminished. 

To address the establishment clause issue and the free exercise clause issue it is necessary to understand a few things about the Constitution. Prior to Cantwell v. Connecticut http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=310&invol=296
a citizen of the United States could not bring suit against a state, as opposed to the federal government, for a violation of his First Amendment right to the Free Exercise of religion.  The Bill of Rights were, up to that point, held as rights that the federal government could not infringe upon.  Your local state government, well, that was another story altogether. In short, if a state government infringed upon your right to the free exercise of your religion or lack thereof, you had no recourse.  Good ol’ days at their best.

Cantwellchanged that.  The ruling held that the 14th Amendments protection against state action fully incorporated the Free Exercise Clause.  This allowed a citizen to charge that a state’s action violated her rights with respect to the First Amendment.  In doing so, it allowed the Supreme Court review of state laws.  The Court and by extension federal courts, had no jurisdiction prior to Cantwell. 

That holding of Cantwellalone is a tremendous expansion of the free exercise clause.  Without it, there is no recourse in federal courts for a violation of the right.  A right without a remedy for the violation thereof is no right at all.

Going further, for KPG’s point to have resonance, the law he cites about being barred from public office must be constitutional.  However, it is not.  The Supreme Court addressed this issue in 1961 in Torcaso v. Watkins, 367 U.S. 488 (See http://atheism.about.com/library/decisions/religion/bl_l_TorcasoWatkins.htm for a brief summary).  So, what KPG has done is raise a huge fuss about an unconstitutional law that can’t be enforced.  Yet, that same law could have been enforced by the state prior to the Cantwelldecision because there was no incorporation of the First Amendment.

It can’t be argued with a straight face, assuming one has full knowledge of the laws that were in effect 100 years ago and the laws that are permissible in today’s world, to say that the free exercise clause has been diminished at all.  To the contrary, it has been expanded and greatly.  Furthermore, atheists are in much better position than they ever were to exercise their freedom to no religious beliefs. 

Next, freedom of speech and the FCC.

What about free speech 100 years ago?  Let’s examine some cases to see what type of speech one could make and what type of speech one could not make.

In Debs v. U.S. 249 U.S. 211 (See http://tourolaw.edu/patch/DebsII/ )the Supreme Court in 1919 recounted the following:

He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States.

After considerable discourse that it is unnecessary to follow, he took up the case of Kate Richards O’Hare, convicted of obstructing [***569] the enlistment service, praised her for her loyalty to socialism and otherwise, and said that she was convicted on false testimony, under a ruling that would seem incredible to him if he had not had some experience with a Federal Court. We mention this passage simply for its connection with evidence put in at the trial. The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles—that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and have never yet had a voice in declaring [*214] peace. “You have your lives to lose; you certainly ought to have the right to declare war if you consider a war necessary.”

After doing so, the Court affirmed his conviction for violation of the Espionage Act for what he said in that speech.  Contrast all that freedom of speech in 1919 with what Les or Elwed has said here or with what was said in opposition to Vietnam.  It is clear beyond a doubt that the right to speak in opposition to a war has been greatly enhanced, not diminished.

What about other forms of speech, say comedy?  Well, as recently as the 50s and 60s comedians were severely restricted.  For a tragic tale that breaks my heart, because it broke his soul you can read about Lenny Bruce.  (See http://www.law.umkc.edu/faculty/projects/ftrials/bruce/bruceaccount.html ) Today, you KPG may write a post that is available for all to read at any time on Les’s blog that is entitled “Fuck the Flag.” Less free speech rights than 100 years ago?  Hardly the case. More?  Most definitely.

Next, the FCC.

The Federal Communications Commission a/k/a as the FCC, is the successor organization to the Federal Radio Commission a/k/a the FRC.  The FRC was created in 1927 to implement the Federal Radio Act.  Later, in 1934, Congress enacted the Federal Communications Act, merging the responsibilities for various agencies into one that was responsible for regulating broadcast and wired communications.  (See http://www.museum.tv/archives/etv/F/htmlF/federalcommu/federalcommu.htm )

The Supreme Court addressed the Federal Communications Act authroizing the FCC in National Broadcasting Co. v. U.S., 319 U.S. 190 (See http://www.bc.edu/bc_org/avp/cas/comm/free_speech/nbcvus.html ) In that case, NBC challenged the ability of the FCC to regulate it.  The Court found that Congress granted the FCC the right to do so and its reasoning was based in a large part on the fact that NBC and CBS were locking up large portions of the broadcast market.  In essence, the Court thought that the FCC’s regulation would allow more rather than less diversity in broadcasting.

A portion of the opinion:

The avowed aim of the Communications Act of 1934 was to secure the maximum benefits of radio to all the people of the United States. To that end Congress endowed the Communications Commission with comprehensive powers to promote and realize the vast potentialities of radio. Section 303(g) provides that the Commission shall ‘generally encourage the larger and more effective use of radio in the public interest’; subsection (i) gives the Commission specific ‘authority to make special regulations applicable to radio stations engaged in chain broadcasting’; and subsection (r) empowers it to adopt ‘such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act’.

These provisions, individually and in the aggregate, preclude the notion that the Commission is empowered to deal only with technical and engineering impediments to the ‘larger and more effective use of radio in the public interest’. We cannot find in the Act any such restriction of the Commission’s authority. Suppose, for example, that a community can, because of physical limitations, be assigned only two stations. That community might be deprived of effective service in any one of several ways. More powerful stations in nearby cities might blanket out the signals of the local stations so that they could not be heard at all. The stations might interfere with each other so that neither could be clearly heard. One station might dominate the other with the power of its signal. But [218] the community could be deprived of good radio service in ways less crude. One man, financially and technically qualified, might apply for and obtain the licenses of both stations and present a single service over the two stations, thus wasting a frequency otherwise available to the area. The language of the Act does not withdraw such a situation from the licensing and regulatory powers of the Commission, and there is no evidence that Congress did not mean its broad language to carry the authority it expresses.

In essence, the Chain Broadcasting Regulations represent a particularization of the Commission’s conception of the ‘public interest’ sought to be safeguarded by Congress in enacting the Communications Act of 1934. The basic consideration of policy underlying the Regulations is succinctly stated in its Report: ‘With the number of radio channels limited by natural factors, the public interest demands that those who are entrusted with the available channels shall make the fullest and most effective use of them. If a licensee enters into a contract with a network organization which limits his ability to make the best use of the radio facility assigned him, he is not serving the public interest. . . . The net effect (of the practices disclosed by the investigation) has been that broadcasting service has been maintained at a level below that possible under a system of free competition. Having so found, we would be remiss in our statutory duty of encouraging ‘the larger and more effective use of radio in the public interest’ if we were to grant licenses to persons who persist in these practices.’

It should also be noted that when KPG makes statements about free speech and the FCC, those statements are somewhat fuzzy.  It tends to lead one to the belief that individual private speech is somehow being regulated.  That is simply not the case.  The FCC is regulating commercial speech in the form of entertainment or commercials or whatever that is being marketed to the public.  There is a distinct difference, and always has been, between commercial speech and other forms of speech.  The FCC does not in any form or fashion regulate private speech.

There are distinct advantages to such an allowance as well.  The ability to regulate commercial speech is the reason that there are laws on the books with respect to Consumer Protection Acts in almost all states.  Those acts govern the speech of corporations and companies.  Normally, under the law, a misrepresentation made by a company about a product would result in simply a fraudulent inducement claim.  The damages aspect is minimal, there is no attorney’s fees granted to a plaintiff, and there is no penalty.  So, absent the Consumer Protection Acts, it may make good financial sense to misrepresent the product, sell lots of it, settle out those who bring claims, and whistle on the way to the bank.  That is what did happen and would again, absent minor oversight of commercial speech.

That being said, those big corporations that engage in commercial speech via the airwaves have less oversight than they have ever had before.  There are still words that one is unable to say on the air during certain hours, but that has been tempered in the last 20 years.  Certainly, 100 years ago, had such technology even existed the mores of the time would have prohibited brief nude scenes or the vocabulary in use during prime time programming.

Furthermore, if one wants to watch porn, all you have to do is click and select.  The cable providers will pump it right into your living room.  If one wants raunchy comedy, there is late night comedy programming.  If one wants to watch uncut movies, turn to HBO.  It’s all there over the airwaves, uncut, uncensored and ready for consumption.  It is hard to believe that anybody would think that such products would be readily accessible in any form 100 years ago.

More freedom to view what I want when I want to and where I want to today?  Without a doubt.

With respect to the 2nd Amendment, I’m not sure how broad KPG believes this right is.  So, without knowing that, I can’t really address the issue with any real thoroughness.

What I can say is this:  As of today, I can go to a gun show and purchase any rifle that my heart desires and my pocketbook can afford.  I can do the same with a handgun with minimal restrictions. 

The restrictions:  No silencers, no fully automatic weapons (though I can easily modify certain rifles to make them fully automatic and as long as I shoot them for entertainment value in the middle of nowhere, nobody cares) and no sawed off shotguns. 

It is hard to see how my rights have been diminished unless I wanted a silencer or sawed off shotgun.  It’s even harder for me to see what legitimate purpose might precipitate a need for such equipment, which is likely why they are reasonable restrictions.

That said, let’s look back to the good ol’ days.  I note that On May 21, 1856, the “Sack of Lawrence” took place, in which the Kansas territorial militia, bearing arms supplied by the United States government and under the command of a deputy federal marshal, confiscated the guns of a group of free-soilers. (See http://en.wikipedia.org/wiki/Sacking_of_Lawrence for more details)

My simply commentary is that I doubt anybody today would suggest that a federal marshal has the power to confiscate the citizenry’s firearms.

The 3rd Amendment provides:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

I don’t see any reference by KPG, so I shall presume that he is not maintaining that his rights enumerated herein are any less than they were at any time previously.

What is Freedom House’s definition of “freedom”?

Freedom is the opportunity to act spontaneously in a variety of fields outside the control of the government and/or other centers of potential domination. Freedom House measures freedom according to two broad categories: political rights and civil liberties. Political rights enable people to participate freely in the political process through the right to vote, compete for public office and elect representatives who have a decisive impact on public policies and are accountable to the electorate. Civil liberties allow for the freedoms of expression and belief, associational and organizational rights, rule of law, and personal autonomy without interference from the state.

The organization’s definition of freedom is derived in large measure from the Universal Declaration of Human Rights that was adopted by the United Nations General Assembly in 1948. The rights enumerated in the Universal Declaration include freedom of religion, expression, and assembly; freedom from torture; and the right to take part in the government of his or her country. These standards apply to all countries and territories, irrespective of geographical location, ethnic or religious composition, or level of economic development.

In that case, it would seem that the United States has always been far from exemplary.

The 4th Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

KPG maintains that this was eviscerated by the Patriot ACt.  He does not set forth how.  It is part of his claim that he has lost rights in regards to 100 years ago.

Yet, when we examine the history of the 4th Amendment, we find that evidence obtained in violation of the 4th Amendment was regularly allowed in at a trial.

“The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of [*396] the manner in which witnesses have possessed themselves of papers, or other articles of personal property, which are material and properly offered in evidence.”

Weeks v. United States, 232 U.S. 383, 395-396 (U.S. 1914)(Quoting the trial court which was discussing the common law rule that was in effect in NY)

It wasn’t until the Weeks case comes along that evidence obtained in violation of the 4th Amendment was excluded at your trial.  Note that this was less than 100 years ago.  Furthermore, the Weeks court made a distinction about who obtained the evidence.  It excluded evidence obtained by those acting on behalf of federal authority, but did not apply the rule to the local policeman.

The reason the court did not apply the rule to the local policeman was because the courts had not yet recognized that the 4th Amendment applied to state actors such as the local policeman.  So, even after the introduction of the exclusionary rule in Weeks, your local policeman could seize items and use them at trial against you whether they had properly obtained a warrant or not. 

It is not until Wolf and more directly in Questioned- validity questioned by citing refs.  Elkins v. United States, 364 U.S. 206 http://supreme.justia.com/us/364/206/ that we find the Supreme Court stating that indeed there are 4th Amendment protections for a citizen via the 14th Amendment.  Note that the date of the decision is less than 50 years ago.

Such protection against unreasonable search and seizures as the exclusionary rule were unheard of only 100 years ago.  It is a monumental leap in the enlargement of an individual’s right to be free from unreasonable search and seizures by providing that the evidence obtained is inadmissible. 

Diminution of rights from 100 years ago with regards to the 4th Amendment?  No.  Enlargement of rights/remedies? Yes.

It is not until Wolf and more directly in Questioned- validity questioned by citing refs.  Elkins v. United States, 364 U.S. 206 http://supreme.justia.com/us/364/206/ that we find the Supreme Court stating that indeed there are 4th Amendment protections for a citizen via the 14th Amendment.

Should read:

It is not until Wolf and more directly in Elkins v. United States, 364 U.S. 206 http://supreme.justia.com/us/364/206/ that we find the Supreme Court stating that indeed there are 4th Amendment protections for a citizen via the 14th Amendment.

I’m utilizing Lexis for my reading and attempting to find free sources for the reader.  I copied and pasted from Lexis which included some additional commentary the citation.

I’m going to catch some rays and hit the gym.  I’ll finish later this afternoon.  It should be abundantly clear with what has been posted thus far, that what I’m addressing are not legal minutia, but rather broad and sweeping enhancements of the rights of citizens of the United States.

Consi: For starters, let me say that I’m usually on your side.  So, I mean no disrespect, personally, in the following posts.

None will be taken, this looks like fun.

So, please don’t consider it an affront if I don’t respond until I’ve completed the series of posts.

No worries, I just got up and have to go to work, so I won’t get to this until later this evening anyway…

Strangely enough I’m with Consi on this one. Who would have thought? Even if I agree in part with the sentiment expressed, it doesn’t mean that I don’t think that the specific examples used don’t make an awful lot of muddle instead of sense.

That being said, the fact that certain freedoms and rights have been greatly expanded since the nation’s conception doesn’t mean that conservative portions of society aren’t always trying (and sometimes succeeding) to retract our rights and freedoms for various reasons.

Part of the problem is that total freedom doesn’t exactly guarantee an egalitarian society, in which case you don’t have total freedom at all but the oppression of the majority. To have an egalitarian society then, it seems that you must restrict freedom. It becomes a question on whether or not you desire freedom more than fairness, and how to secure either from nuances that would diminish both to turn into tyranny.

It’s really not an issue of what freedoms you have though, or how egalitarian your society is, at all. Ultimately, the arbiter of success is the same as in any other organization: satisfaction. You can be satisfied and free, satisfied in fairness, and even satisfied (I suppose) in how hard the boot is crunching your cheekbones beneath its heel oppressing you. What this means is “Do you feel free? Does the world seem fair? Are you happy?” It sounds simplistic, but satisfaction is about what you expect, what you want, and what you’re used to.

I think the key problem with American society these days isn’t “freedom”, it’s that you’ve got powerful, contrary, sets of expectations and desires confronting each other for expression in government and no one is getting anywhere near the level of comfort that they think they deserve. That’s an issue all the time, but it’s not being smoothed over by politicians doing their job of making their constituencies happy these days. It’s being used by every camp as a rallying cry, as if the component parts of our society were separate societies. To me at least, that’s a little scary.

Timid men prefer the calm of despotism to the tempestuous sea of liberty.

Author:  Thomas Jefferson
Freedom and liberty are not absolutes, but are dynamic values determined by societies. Luckily, as Consi has so eloquently referenced, the U.S. currently offers an abundance of them. But, as Eleanor Roosevelt has said, the price of liberty is constant vigilance. Those in power need watchdogs, and the internet is proving a great service in this respect. LONG LIVE SEB!

Ladies and gentlemen of the jury, in his opening statement my esteemed colleague, Mr. Consigliere, took umbrage with my statement that we are less free than we were 100 years ago, that our rights have been systematically taken apart over the last hundred years. He intends to prove me wrong.

Now, we all know Mr. Consigliere. We know how this is going to unfold. He will sing. He will dance. He will spin. It’s his nature. He will cite case law, in great detail and with great passion. He will dazzle you with bullshit.

No matter how you spin it or how much it sparkles, bullshit is still bullshit. Keep your eye on the ball. After all, that figurative ball represents your freedom. I’ll walk with you through this clever maze of sophistry, brush aside the straw men and cob webs and help you see what lies beneath.

Then you can decide for yourself……

First up:

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Consi: KPG has addressed the establishment clause, the right to free speech, and the right to assembly.  It is his contention that the existence of the FCC, the laws on the books regarding religion, the permit process for assembly, and for some heretofore unknown reason, George Carlin, collectively establish that our rights have been diminished.

In the words of the EFF:

Supreme Court decision in the 1974 George Carlin “Seven Dirty Words” case, FCC v. Pacifica Foundation (the original Carlin monologue that was the subject of the case was actually called “Seven Words You Can Never Say on Television”.) This decision established indecency regulation in broadcasting, and for over two decades has established the FCC as the largest censorship body in the world. This case is essentially one of the forebears of the “Communications Decency Act”.

The complete text of the decision can be found here. We’ll get back to the FCC in a little while…..

Consi: Prior to Cantwell v. Connecticut a citizen of the United States could not bring suit against a state, as opposed to the federal government, for a violation of his First Amendment right to the Free Exercise of religion.  The Bill of Rights were, up to that point, held as rights that the federal government could not infringe upon.  Your local state government, well, that was another story altogether. In short, if a state government infringed upon your right to the free exercise of your religion or lack thereof, you had no recourse.  Good ol’ days at their best.

Let’s look at the 14th Amendment.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That’s pretty specific. Most of the Constitution is. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Those privileges and immunities include the 1st amendment. The state government was not allowed to make or enforce laws that infringed on the Bill of Rights.

Some states may have done so anyway. But that falls into the same category as a crooked cop infringing on a suspect’s rights. A law being broken is a very different thing from such an action being officially condoned by the Government. It may have taken Cantwell v. Connecticut to point out that the protection was there, but it didn’t create that protection. The 14th amendment did that, back in 1868.

Consi: Going further, for KPG’s point to have resonance, the law he cites about being barred from public office must be constitutional.  However, it is not.

That’s the point here, Consi. Unconstitutional laws. The books are full of them and many are enforced. That’s why we’ll be discussing the Patriot Act later on.

Consi: The Supreme Court addressed this issue in 1961 in Torcaso v. Watkins, 367 U.S. 488 (See http://atheism.about.com/library/decisions/religion/bl_l_TorcasoWatkins.htm for a brief summary).  So, what KPG has done is raise a huge fuss about an unconstitutional law that can’t be enforced.  Yet, that same law could have been enforced by the state prior to the Cantwelldecision because there was no incorporation of the First Amendment.

We’ve already blown the smoke away from the Cantwell decision. It’s irrelevant. And just because the Supreme Court has pointed out that the laws are unconstitutional, that doesn’t mean they can’t be enforced. The only way to do that is to take the laws off the books and that hasn’t happened here.

Consi: It can’t be argued with a straight face, assuming one has full knowledge of the laws that were in effect 100 years ago and the laws that are permissible in today’s world, to say that the free exercise clause has been diminished at all.

Tell that to Howard Stern. Oh, yeah, we have to wait till we get to the FCC for that one. Sorry.

After doing so, the Court affirmed his conviction for violation of the Espionage Act for what he said in that speech.  Contrast all that freedom of speech in 1919 with what Les or Elwed has said here or with what was said in opposition to Vietnam.  It is clear beyond a doubt that the right to speak in opposition to a war has been greatly enhanced, not diminished.

This I won’t contest. When it comes to the right to speak against war, we have much greater freedom. I might argue that such speeches lead to the inevitable bread and circuses that the government requires to keep us distracted, but that’s an argument for another time and place.

What about other forms of speech, say comedy?  Well, as recently as the 50s and 60s comedians were severely restricted.  For a tragic tale that breaks my heart, because it broke his soul you can read about Lenny Bruce.

Lenny Bruce was tried on obscenity charges. Surely you’re not suggesting that obscenity charges no longer exist? Admittedly, most of them are handled by the FCC now, but we still have an abundance of such cases outside the jurisdiction of that illegal body, most stemming from pornography of some sort. In fact, the number of those cases increased greatly over the last three years with the advent of the FBI’s Anti Porn Squad.

The Federal Communications Commission a/k/a as the FCC, is the successor organization to the Federal Radio Commission a/k/a the FRC.  The FRC was created in 1927 to implement the Federal Radio Act.  Later, in 1934, Congress enacted the Federal Communications Act, merging the responsibilities for various agencies into one that was responsible for regulating broadcast and wired communications.

Right from the beginning, the FCC has been an unconstitutional organization. The First amendment tells us that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”. There’s no except at the end of that sentence. It is clear and concise. Congress shall make no law.

It should also be noted that when KPG makes statements about free speech and the FCC, those statements are somewhat fuzzy.  It tends to lead one to the belief that individual private speech is somehow being regulated.  That is simply not the case.  The FCC is regulating commercial speech in the form of entertainment or commercials or whatever that is being marketed to the public.  There is a distinct difference, and always has been, between commercial speech and other forms of speech.  The FCC does not in any form or fashion regulate private speech.

I’m sorry, Consi, but that’s simply wrong. I mark no difference between commercial and private speech, because the Constitution marks no difference between commercial and private speech. It’s about speech. Period.

That being said, those big corporations that engage in commercial speech via the airwaves have less oversight than they have ever had before. 

Unless you’re putting on a Super Bowl Halftime show. Or your name is Howard Stern.

Furthermore, if one wants to watch porn, all you have to do is click and select.  The cable providers will pump it right into your living room.  If one wants raunchy comedy, there is late night comedy programming.  If one wants to watch uncut movies, turn to HBO.  It’s all there over the airwaves, uncut, uncensored and ready for consumption. 

Utter crap. Freedom is freedom. If you’re setting up rules about where I can say certain things, I’m not free, I’m restricted. And by the way, HBO can air what they like because they’re not under the jurisdiction of the FCC. Only broadcast networks and broadcast radio fall under their mandate.

The FCC continues to monitor all over the air broadcasts and the continue to levy steep fines against those who they deem to be obscene or indecent, despite the 1st amendment. In recent years, under urgings from the current administration, those fines have become steeper and the enforcement has become stricter.

In closing: shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.

And in a moment we’ll have the results of that trial…

...and KPG wins. Our friend Consi has put forward a good, solid case, but juror Sadie J. Morrison has cast her ballot for KPatrickGlover’s side.

Thatks for the vote of confidence, Sexy, but unless you want to vote one amendment at a time, we still have a long way to go......