"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety" - Benjamin Franklin.
Liberty comes from the Latin root ‘liber’. Definition of liberty is the quality or state of being free.
Liberty has meant widely different things to different people at different times.
At the declaration of Independence, liberty meant self governance.
For slaves, liberty meant termination of the legal status of involuntary servitude.
In 1936, for the Liberty Leaguers, liberty meant repeal of the new deal.
For the American Civil Liberties Union, Liberty meant the freedom to form organizations, picket and speak freely and hold unpopular views.
Hence, we understand that liberty is a constant rebellion against authority. Yet, it is the great paradox of liberty that it cannot exist except within the framework of authority because unlimited liberty will lead to anarchy.
Tussle between liberty and authority:
The new government of the independent US had more authority to tax and regulate commerce than the English king.
The Blacks were fighting for liberty (against slavery). For a long time they did not get the support of the government.
The New deal included the National Labour Relations Act and the National recovery act. This was a pro labour class. However it went against the capitalist beliefs and so the Liberty Leaguers opposed it. They wanted the Old deal to be back in which the Federal authority was used to levy taxes and enjoin labour unions from striking and picketing.
The American Civil Liberties Union does not want cities to censor motion pictures but two protect the street meetings of unpopular groups.
The tension between liberty and authority is absolutely necessary. The question is never one or the other but how much of each other.
Constitutional Background:
The founders had great concern for liberty but the original constitution showed few indications of interest.
Theory of constitutional convention was that there was no need for specific protection of liberties. They had a limited government which should frustrate any drive towards the abuse of power.
They also thought that individual liberty would also come automatically as a byproduct of a system of equal economic opportunity, social mobility and political responsibility.
However, in many states, ratification was secured only on the understanding that amendments protecting the individual rights would be immediately added to impose certain limitations on the new government. Thus, the Bill of Rights was added.
Freedom of expression:
“If freedom of speech is taken away, then dumb and silent we may be led, like sheep into the slaughter”. – George Wasghintion. (Ebenstein , William; American Democracy in World Perspective)
Rights protected directly under the 14th Amendment include exercise of religion , no establishment of religion , freedom of press , right to demonstrate , to petition and to assemble peacefully. Derived from directly protected rights are the right to form associations and demonstrations.
The extent of one’s right of self expression is directly proportional to what other rights may be competing for consideration.
Methods of restraint on Freedom of speech and expression:
Prior restraint or censorship – These are legal limitations imposed in advance. They are more dangerous because they are easy to impose. However, they are justified only by hypothetical possibilities.
Subsequent punishment – There is criminal prosecution according to the due process of law . The court will be dealing with what actually happened.
For whatever it may be worth, people have been able to get their message to the public .
Freedom of the Press:
Freedom of press has the greatest claim to freedom because social setting makes the least likelihood of conflict with other rights.
Censorship of print:
It is unconstitutional to censor the press. No special taxes can be levied in a discriminatory fashion. No licenses can be issued. In the Mills vs. Alabama case an editor who published an editorial on election day had been convicted under a law prohibiting electioneering on election day . The Supreme Court held the law unconstitutional.
Libel:
Libel means defamation of character by print or other visual representation.
In the New York Times vs. Sullivan case of 1964:
New York Times had published a paid advertisement criticizing the treatment of Negros in Montgomery, Alabama. This article had factual errors. The police Commissioner of Montgomery contended that such criticism of Montgomery ‘police’ meant libel. Alabama jury awarded him damages of $ 500,000. Another commissioner was awarded $ 500,000 for the same advertisement. 11 additional libel suits were filed against Times. Total was $5, 600, 000. 5 suits asking $1,700,000 were filed at the same time against Columbia Broadcasting System based on its coverage of the Alabama Civil Rights Controversy. The Supreme Court, then, made it clear that erroneous statements honestly made cannot be punished as libel.
Obscenity:
Anything having social importance cannot be obscene. There is a federal obscenity statute applying to the mails. Its indecency should be self demonstrating. There should be a compulsory labeling system for movies.
Freedom of speech:
“Written words are less apt to incite …” unlike spoken words said Justice Jackson.
Prior restraint on speech and assembly:
To demonstrate in a public place a permission and notifications are required.
Sound amplification has to be in accordance with rules.
Local ordinances may protect privacy by forbidding commercial salesmen to sell from door to door.
Speech and Breach of peace:
Fighting words and insults are unconstitutional.
Once when a boy was making a speech, the crowd started getting agitated. Nearby two police men were standing. One of the persons in the audience told the policeman, if he did not remove the orator from the box, he himself would do so. It was a clear and present threat of danger and so the policeman arrested the speaker. The Supreme Court agreed with the decision.
Freedom to Demonstrate:
The Supreme Court calls it ‘speech plus’ because it includes action.
In the 19th century labour picketing was unlawful but judicial attitudes gradually changed.
In 1949 there were unpleasant incidents when people used to picker outside courts to influence the judgment. So, Congress made it illegal to picket outside courts.
Freedom of association:
There are many associations holding unpopular views. e.g. -the Ku Klux Clan.
The Virginia government was making it difficult for the National Association for the Advancement of colored people to use law for fighting for equality. However, the Supreme Court upheld the litigation procedures.
Religious Liberty:
The first amendment guarantees freedom of religion and no establishment of religion.
America had seen the results of religious discrimination in Europe. The principle of separation of the church and the state was an American invention.
Freedom of religion:
The children of Jehovah who believe that saluting a flag is like bowing down to a graven image. Hence, they cannot be compelled to join in the flag Salute ceremony in public schools.
Criminal actions motivated by religion are not immune from punishment.
People who oppose war based on their religious teaching are exempt from military service.
Sunday holiday does not violate the religious freedoms of Jews who require their shops to be closed on some other day.
Right to privacy:
The constitution comes closest to the right to privacy in the fourth amendment in which it prevents unreasonable searches and seizures by the police.
Now as technology has improved, wiretapping, lie detector tests and truth drugs have come up. What will remain of right to privacy is unclear.
Individual freedom and national security:
The severest test of constitution freedom occurs in periods of war and civil emergency. Justice Holmes developed the clear and present test to measure the extent of government power to punish.
The status of the communist party
It is not a legitimate party with no protection of speech and association. Government policy is not to outlaw the party completely. It has continued to exist well infiltrated with FBI agents.
Loyalty programmes
Due to the cold war, the government conducts loyalty checks and loyalty review programmes to check the loyalty of public officials.
Economic liberty and human rights
The crudest confrontation was the slavery issue. If slavery had to be abolished, right to property also had to be abolished because a slave was a property.
Steel companies could not operate profitably unless employees worked 12 hours/ day.
Minimum wages for women was immoral to them because it forced an employer to pay more for what was not worth to him. These were the problems faced by the governor. The congress has the power to regulate commerce, levy taxes and spend money for general welfare.
“Government cannot make us equal: it can only recognize respect and protect us as equal before the law”- Clarence Thomas
Bibliography:
http://www.breedshill.org/meaning_of_liberty.htm
American Democracy in World Perspective by William Ebenstein.
No comments:
Post a Comment