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In incorporating these principles into the

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Unformatted text preview: ot;absolute" free expression. Infact, there is considerable evidence to the contrary. I could cite the Sedition Act n6 of the late eighteenth century as an example of the idea that Congress did not view free expression as absolute, but I won't. Instead, I will cite a United States Supreme Court case from the late nineteenth century, a century in which there was virtually no Supreme Court discussion of the expression clauses of the First Amendment. Some might argue that the lack of discussion was because the Supreme Court understood-as a matter of course-that expression was intended by the Framers to be absolutely free and that, consequently, no discussion was needed. On the contrary, I think it is much fairer to argue, first, that expression issues simply didn't reach the Court much in the nineteenth century-hence, little discussion-and second, that when the issue of "absolute" free expression did reach the Court, the Court dismissed the idea with unequivocal language and great ease, suggesting strongly to me that the Court always had understood-as a matter of course-that expression was not meant to be-in fact, could not be-absolutely free. In this connection, I quote to you from Robertson v. Baldwin, n7 an 1897 Supreme Court opinion in a First Amendment case: The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply [*85] to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain wellrecognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press . . . does not permit the publication of libels . . . or other publ...
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This document was uploaded on 11/20/2013.

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