It may be my age, but I don't entirely get Lettermen, with humor that is more sophomoric and ironic than knee-slapping and funny. And Lettermen, unlike Leno and O'Brian and in an earlier era Carson, would not be the kind of person I would want at my BBQ. Nor would I want the right-wing, swarmy Dennis Miller either, who reminds me of the kind of creep who hangs out at adult stores or children's playgrounds. That said, I don't understand the sudden conversion to political correctness from the right with talk of boycotts and firings. So long as the advertisers get their numbers, neither Miller nor Lettermen are going anywhere. I've never seen such touching sensitivity from FoxNation on feminist or class issues. So here is my small suggestion to all those folks who are in a lather about either Lettermen or Imus, either Miller or O'Brian exercising their First Amendment rights:
TURN THE CHANNEL!
Says a reader:
As with most people who are foolish enough to support liberal ideas, you fail to understand that the First Amendment (as well as the rest of the Bill of Rights) ONLY restricts the actions of the United States government.
Ah, yes. A a cafeteria conservative, ever appealing to the freedom of speech clause of the constitution only when it suit you.
Since you clearly don't know anything about the First Amendment, let me help you and the other home schoolers out.
Private citizens are permitted-- not restrained-- by the first amendment to say what they want, within the bounds of what is otherwise lawful, i.e. as regards to sedition or obscenity. The First Amendment applies to individuals, corporations, states, and the government. It doesn't only restrict the federal government. Here is the wording:
"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. "
Right after the clause "freedom of speech" is "or of the press"-- which is scarcely a government function. The First Amendment doesn't innoculate individuals from tort liability for libel or slander, but the Supreme Court has set a low standard in regards to public officials such as Mrs. Palin. Generally, Palin is fair game for any kind of abusive or unfair speech because she is a public official. It is a gray area whether or not her children are fair game. As a matter of law, that can be addressed under libel or slander laws. As a matter of tactical politics as well as basic ethics, any kind of attacks on politican's children should be off limits.
Here is Wikipedia analysis:
"The nature of American defamation law was vitally changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan 376 U.S. 254 (1964). The New York Times had published an advertisement indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the Civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice William J. Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice."
"The actual malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private individuals normally need only to prove negligence on the part of the defendant.
"In Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970), the Supreme Court ruled that a Greenbelt News Review article, which quoted a visitor to a city council meeting who characterized Bresler's aggressive stance in negotiating with the city as "blackmail", was not libelous since nobody could believe anyone was claiming that Bresler had committed the crime of blackmail and that the statement was essentially hyperbole (i.e., obviously an opinion).
"The Supreme Court ruled in Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974), opinions could not be considered defamatory. It is thus permissible to suggest, for instance, that someone is a bad lawyer, but not permissible to falsely declare that the lawyer is ignorant of the law: the former constitutes a statement of values, but the latter is a statement alleging a fact."
I'm not sure why the word "liberal" is used as a prejorative as it was foolish liberals that wrote the constitution in the first place, and it is conservatives such as the mullahs of Iran who do not want such foolish, new-fangled liberal ideas as free speech to prevail.
The fact is that right-wing talk radio, the forums (such as this one) and Fox cable have this kind of stuff on daily abd 24-7. I think it does debase the dialogue and tactically the low road isn't the place where you want to be. But that is a fact of today's politics. What does the Bible say about taking the log out of your eye? Lettermen is a mere speck compared to Limburgh, Rush, Hannity, Beck, Palin, Fox, and any number of forums, all spewing their hate, with some of it crossing the line into inference about assasinations of liberal politicans.
"In a harried, fragmented, media-addled time, there is an invigorating simplicity to this political fundamentalism. It is comforting to hold fast to hallowed values, to defend tradition against the slackness of relativism and hedonism. But when the tone darkens toward a rhetoric of purgation and annihilation, there is reason for alarm. Two days after watching "Seven Days in May," I was utterly horrified to hear Dallas-based talk show host Mark Davis, subbing for Rush Limbaugh, laughingly and approvingly read a passage from a Dallas magazine article by CBS sportscaster David Feherty claiming that "any U.S. soldier," given a gun with two bullets and stuck in an elevator with Nancy Pelosi, Harry Reid and Osama bin Laden, would use both bullets on Pelosi and strangle the other two."
There is the saying that you don't wrestle with pigs because you get dirty and the pigs likes it. It seems to me that lip-stick covered pigs like nothing better than this kind of rhetoric. Kerry and some of the previous presidential candidates made a critical error of judgment in not answering these kind of attacks in kind and at once. And, since the Republicans are now a minority party lacking any kind of leadership at all, I expect that this kind of snarking will continue from them for as long as I can see, making it blue skies for the Democratic Party.
So, yes, there is indeed hypocrisy. But most of it comes from the right.
"Corder had not included those remarks during rehearsals.
"The lawsuit said Brewer would not give Corder her diploma until she included a sentence saying, "I realize that, had I asked ahead of time, I would not have been allowed to say what I did." Corder received her diploma after complying.
"Then, deviating from the 30-second speech that had been approved by the principal, she began speaking about "someone who loves you more than you could ever imagine."
"The district has a written policy titled "Student Expression Rights," according to the lawsuit. It prohibits expression that, among other things, is disruptive, obscene, vulgar, slanderous or threatens violence. It does not specifically prohibit religious speech, the lawsuit states. "
This has nothing to do with "honesty" unless Corder made an explicit promise not to state those words. The articles aren't clear on that point. Regardless, Corder felt that she was being honest to her beliefs and her obligation to perform according to a script seems contrary both to her own sense of integrity and to what education is-- where the articulation of independent thought needs the benediction of authority. Even her acknowledgent that she should not have said such things is irrelevant in the light of more important issues, such as censorship, the First Amendment, and the free speach rights of the students versus the right of the administration to control thsoe students.
Earlier this year, the Supreme Court restricted student expression in the "Bong Hits 4 Jesus" case, but that was because it was assumed that the 14 foot banner referenced drug use-- a permissible restriction in the court's view. However, in the case above, Corder's speech didn't violate written policy. She only pricked the sensibilities of the principle and some of her listeners, which is what any good speech should do.
On First Amendment grounds, I think Corder is going to win. Also, as a matter of contract law, I think she will win, a contract consisting of offer ("you are entitled to give a speech under these conditions"), accceptance ("I will speak under these conditions"), and consideration ("I spoke under these conditions"), the absence of any leg of the triad voiding the contract. From Corder's view point, the pre-conditions were the written policy, with which she was in compliance, not the philosophical views of her listeners or even the approval of the principle of the speech. The school breached her contract to speak by imposing requirements extraneous to stated school policy. Given the breach of contract by the administration, I would say Corder was entitled to present her religious opinion.
As a First Amendment absolutist, I hope she does win, and this would also be true if a valedictorian someday intoned that "atheism was the hope of the world."
IMO, the school was wrong and Corder was right.
Are you an absolutist about all of the First Amendment, or just the free speech part of it?
Then you should have no problems with the school principal curtailing the rights of the speaker, given that the "federal legislature" was not involved.
I have long wondered what a "free speech absolutist" might be. Certainly the founders did not intend that the Congress could never curtail speech. Madison, who wrote the Amendments, didn't. Never in our history has such an argument seriously been made, or recognized.
I was giving a summary statement of my view, which, more accurately is that the presumption must be given on the unfettered expression of speech in the absence of stronger countervailing presumptions. However, we are all aware that there is no absolute to free speach or anything else for that matter when weighed against issues of public safety, common sense and ethics, general decorum, and other concerns. We cannot yell "fire" in a theatre, for example, or slander with impunity.
Okay. So you don't recognize the First Amendment as imposing literal limits on government, nor "granting" literally the right to individual free speech. You are not a First Amendment "absolutist."
I concede the point. However, it seems like you were invoking an orginalist understanding of that clause. I'm not sure that what Madison had to say about the topic is especially relevant, although I think he did view the press and public sentiment as a chck on the other three branches-- a quasi branch of government. Nor do I think the state grants any such rights as such, although they can establish bounds, for example, in not inciting riots or spilling state secrets. The law is dynamic and fluid, subject to interpretation and application. However, as a matter of principle, the presumption as I've said before is to the absence of restrictions unless there is a compelling state interest. Stating a religous or a political opinion doesn't rise to that level, as the courts have ruled in the past.
The question I posed (and not just academic trivia, given the new composition of the SCOTUS, IMO) was whether the "rights" found in the First Amendment limit the states in their exercise of sovereignty? That is, where the fed legislature can't prohibit speech because of the First Amendment, can the state or local government? Can the local school principle? Or, for that matter, can the Executive Branch in the exercise of its powers, both enumerated or implied? These are serious questions, about to become even more on the "front burner", IMO. You've stated some magic words, as they apply to the Congress. Again, I ask: Why does the local school authority need show "compelling state interest" before it restricts speech?
I agree that this is going to become an increasingly significant issue. The answer lies in Amendment Ten, the so-called States' Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Constitution grants power and also prevents certain powers as well. It makes no claim to enumerate all powers delegrated or prohibited, as in Amendment Nine: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Thus, Congress may be silent on what kinds of speach are permissible and may also delegate to the states other kinds of restrictions on, say, libel law. However, it doesn't follow that the Misssissippi, for example, can invoke posse comitatus to close down all the broadcast stations and newspapers and require that everyone attends their Southern Baptist church of choice, as that would fall under a violation of the First Amendment. At the end of the day, the compelling state interest is the legitimacy of the constitution itself. This becomes especially true in today where the temptation to make the First Amendment a dead letter law may become compelling given our so-called war on terror where security trumps freedom.
Freedom is a fragile flower indeed.
Part of the role of the SCOTUS, IMOHO, is to protect the minority from the tyranny of the majority. The government should not be in the game of endorsing religion and for many of us, people proselytizing in government sponsored events is exactly that.
We need to achieve both goals-- protect minority rights while expanding the freedoms expressed in the First Amendment. John Stevens, in his dissent in the Morse v. Frederick case, states that "Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of counterveiling views." The problem here is a matter of interpretation. What you may see as proselytizing, I may see as a benign expression of an ideosyncratic point of view-- something that happens every day both inside the school and outside. If instead of a speech, a student had stated the same thing in a letter to the school newspaper, should it be censored on the same grounds? What if that student wore an armband protesting the war in Iraq or a button that said "Bush Rocks", could that student be suspended? I do agree that the government should not endorse religion, but I disagree that perceived efforts to proselytize in a government setting is a manifestation of the government's endorsement of religion. And I fear the imposition of a rule that prohibits such religious expression would lead to the government's supression of literary and political expressions.
But, if people being ushered (quite literally) unto adulthood cannot handle hearing a peer speak of her religious delusions, then they are in serious trouble. I agree. The school recognizes those who are the first in their class and gives them a forum to mouth their platitudes or delusions. However, the school administrators must think the audience is hopelessly mentally weak to succumb to those few minutes of platitudes or delusions. If the teachers are doing their jobs, these are all battles that should have been fought well before graduation day. I hope we never reach that point of political correctness where we cannot have these intellectual battles in secular classrooms. I think it goes back to pedagogical assumptions. If you believe the best way to educate is to indoctrinate, then by all means teach them what to think -- only that which is good and true-- and quarantine them from folly, perhaps through home schooling. Alternatively, if you want to teach your children how to think, how to develop tough minds and confidence in reasoning and rationality, then give them opportunities to reason and to think for themselves.
(Channelling Professor Charles W. Kingsfield.) Speak louder, Hart. Fill the room with your intelligence. What? Nothing? OK, here's a dime to call your mommy. Tell her you'll never make it as a 1L. Who makes these determinations? Who establishes these societal rules? The answer, class, is simply: the courts. Class dismissed.
