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Unformatted text preview: 2. Justice Black’s absolutist reading of the first amendment holds that the amendment means exactly what it says: that Congress shall make no law abridging the freedom of speech or of the press. Under this approach, the only question is whether the action is truly “speech” (and therefore protected) or “conduct” (and therefore subject to reasonable government regulation). Even absolutists recognize that words might be so closely connected with producing a specific action (such as entering into a contract with a hitman or yelling “Fire!” in a crowded theater) as to be unprotected. The main strength of this reading is that it is relatively rigid. The absolutist reading of the first amendment clearly states that the enumerated rights of the First Amendment are absolute and cannot be infringed by any governmental action that would inhibit their exercise. This means speech of any kind – for example, advocating the overthrow of the government as in Dennis v. United States, in which Black dissented from the majority, which ruled against Dennis. Another example of Black’s absolutism can be seen in the case of New York Times Co. v. Sullivan. In the case, Sullivan, an elected commissioner, sued the Times for Libel. Though the Court ruled against Sullivan, stating that libel cases could only be upheld if proven malicious, pre-meditated, or had reckless disregard for the truth, Black went so far as to say that cases of libel could never be upheld, as such rulings would provide at best an evanescent protection for the right to critically discuss public affairs. Black concurred in the judgment, but voted to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional right to publish their criticisms. While for free speech activists, the above may seem like a victory, one must also consider the consequences of such a reading of the Amendment. If accepted, Black’s argument in New York Times v. Sullivan, for example, essentially means that it would be legal to print or say anything about anyone, whether or not the words are malicious and/or false. There is enough mudslinging in politics as it is without officially legalizing malicious, pre-meditated libel. The other main weakness of Black’s absolutist reading is the lack of protection for anything other than “speech” in the traditional sense. Absolutism does not provide protection for expressive conduct, as Black does not believe that the text of the amendment provides for it. This would mean that expressive acts such as the flag burning in Texas v. Johnson, which the Court ruled was an “overtly expressive act” due to the circumstances, would not be protected....
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This note was uploaded on 05/02/2008 for the course POLT 30300 taught by Professor Moon during the Fall '07 term at Ithaca College.
- Fall '07