Re: Freedom Forum report on the State of the First Amendment

>The first amendment is about what government can't do to you, not what your
>neighbor can or can't do.
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And whether the constitution so narrowly construed limits the action of
local councils. It would be extremely convenient if each fo the 50 states
adopted by custom each of the federal amendements mutatis mutandis.


However, freedom of expression in the US and elsewhere is mostly a limited,
but useful fiction.

While many have doubts about where strict freedom of speach should exist,
evidence is that is exists so long as the EFFECT of abberrent speech isn't
too disruptive to the established economic order.  So, for instance, using
the first amendment to tolerate pornographic works and such is against the
putative moral code of most Americans ca. 1950, but tolerating it didn't
really threaten any of the power elite.

Similarly, when the Civil Rights Act gave aggressive enforcement powers for
rights already guaranteed by the consitution, this meant that the power
elite was finally moved to act by massive pressure. Although social
conditioning may have taught southern white businessmen to look down on
negros, they knew that the negro economic power even at the time was very
significant.

America (and Canada, where this is been written from) are physically large
enough to have physically separated and opposed elite from different regions
who duke it out in Congress/Parliament.

So if you want the right to use strong encryption, or don't want CDA II to
ruin your life, appealing to the Constitution is not what I recommend.  If
people dislike porn enough, they'll **amend the constitution** if that's
what it takes.

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>      David Honig                   Orbit Technology
>     honig@otc.net                  Intaanetto Jigyoubu
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> M-16 : Don Quixote :: PGP : Louis Freeh
>         Let freedom ring (or screech at 28.8)
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At 12:20 PM -0700 12/19/97, Bruce Balden wrote:
>>The first amendment is about what government can't do to you, not what your
>>neighbor can or can't do.
>>
>>
>And whether the constitution so narrowly construed limits the action of
>local councils. It would be extremely convenient if each fo the 50 states
>adopted by custom each of the federal amendements mutatis mutandis.

This is an interesting debate. But for those who claim, as we often see,
that the Constitution talks about what _Congress_ may do, and not about
what Virginia may do, or what Skokie may do, or what the Albemarle Country
Board of Supervisors may do, this is simply not true.

For example, "Maybe Congress shall make no law about speech, but Vermont
can tell you to shut up if they want to. And Idaho can force you to speak
in German. And the City of Baltimore can ban the Koran if they want to."

Nope.

I know of several ways of looking at this issue:

* States admitted to the Union have historically had to accept the U.S.
Constitution. In many cases, their own constitutions are nearly identical
to the U.S.C., or even predated the U.S.C. This binds the states to enforce
the Constitution and apply it to their own states.

* As a "guiding document," the spirit of the U.S.C. is what guides even
local laws. So even if the specific language only talks about Congress, the
intent is taken to me any and all government actions, Executive, Judicial,
state, local, etc.

* Some say that the 14th Amendment clarified the issue of whether the
States could have laws which were at odds with the Constitution. (Ownership
of slaves being the relevant case then.)

There's much scholarship on this issue, of course. I don't claim to follow
it all closely, but I'm highly dubious of the simplistic claims that
"Congress shall make no law" only applies to the U.S. Congress.

(With speech, my view is the common one, even for lawyers. Why the Second
Amendment is not treated the same way is a mystery to me. And Justice
Clarence Thomas has hinted that a Supreme Court review of a relevant Second
Amendment case may well result in exactly this ruling, that states and
localities may not infringe on basic Second Amendment rights.)


--Tim May

The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."