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20171006 Abrams, Floyd – The Soul of the First Amendment

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MAIN IDEA:

The main idea of this book is to review realities of history and contemporary application of the First Amendment that guaranties freedom of speech. It also includes extensive comparison of free speech in America with other democracies and demonstrates the exceptional character of American approach.

DETAILS:

Introduction

It starts with the anecdote about author’s son not being admitted to the movie in Europe because of age and then claiming his First Amendment right to see it. The anecdote is provided to demonstrate how deeply this amendment ingrained in American minds. After that author compares it with typical European attitude to the freedom of speech and demonstrates the deep difference between these two approaches. The introduction also describes the structure of the book.

I

This is historical part tracing debates about the First Amendment at the time of Constitutional convention and its ratification process. The main dispute was between those who believed that it is not necessary enumerate rights since constitution already put restriction on government power and those we demanded clear articulation of key rights such as free speech. After this author discusses somewhat surprising fact that the First amendment was dormant for a long time and really become very active only in the second half of XX century and remains in the focus of public discussion and Supreme Court decisions ever since.

II

This chapter compares levels of free speech protection in USA and other countries. Author refers to hate speech laws in Canada, label laws in UK, and privacy protection laws in Finland that limit free expression to the extent inconceivable for Americans. Overall it is a good piece of information for anybody who has doubt about exceptional character of USA.

III

This chapter reviews legal case of 1941 Bridges vs. California that established exceptionally American understanding of the freedom of speech. It initially discusses obscenity laws that were used widely, but then concentrate on Patterson and Supreme Court decision affirming the First Amendment right to criticize judiciary.

IV

This chapter discusses American deviation from Europe in understanding of relationship between privacy and free speech. Specifically it discusses European “right to be forgotten”, which is drastically limit speech on Internet.

V

This chapter discusses American deviation from Europe in understanding of relationship between money and free speech. In short in Europe a government limits spending and consequently ability of people and organizations to distribute their views. In America right to use resource for support of one’s speech was consistently supported by the Court.

VI

Here author goes beyond legal approach to the First Amendment and looks at controversies related to its use in responsible way, especially when it relates to classified materials and other forms of information that if made public could cause serious negative consequences. In short, in America the freedom of speech takes precedence over national security at least as it was decided in cases of Pentagon papers and many others.

MY TAKE ON IT:

I think that the First Amendment and freedom of speech that it supports is one of the most important factors that led to American prosperity. It keep in check, at least to some extent, people in power and allows powerful tools for organizing and creating political pressure for people out of power. However I think that some serious problems presented in this book are not dealt with properly and I would suggest this for each if key problem:

 

Libel and Privacy: I would not limit it by any means, but rather expand access to refutation of label and other untruthful information to such extant that court could upon deciding that information provided was maliciously distorted force allocating of the same amount of space and place in whatever printing or electronic form it was produced. For example if New York Time or Breitbart News published some clearly libelous piece against Trump or Obama correspondingly, they would have to publish rebuttal on the same page with the same amount of space and, in case of electronic format, keep it for the same amount of time as original piece. It would allow consumer of information to obtain rebuttal information and in some murky case make decision for self.

 

Hate Speech: Again I would not limit it by any means, but would punish producer in case somebody actually acted on this speech. For example, if some preacher calls to kill infidels he should be punished as accomplice when and only when somebody acts on this call, even if there is no direct connection between talker and actor. I think it would go long way to preventing incitement of violence.

 

National Security: I believe that it requires legislative action that would clearly define what type of information could be classified, whether it is technological specification, or political discussion, or diplomatic mail. With contemporary technology it is possible to assign clearance on person/document basis and keep track of who accesses what, when, and why. The security will never be provided if some generic classification of Top Secret allows some clerk with clearance such as Manning or technician as Snowden to access millions of classified documents that they not only have no business to access, but would not be even able to look through even if they spend every second of their lifetime doing it.


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