Wednesday, December 22, 2010

Misunderstanding the First Amendment (in re: Assange and Wikileaks)

In an excellent article by Jacob Sullum of Reason Magazine, "Is Julian Assange a Journalist? For First Amendment Purposes, It Doesn't Matter"  , the author argues that the First Amendment is not restricted to journalists.

In the comments section, a lengthy dispute revolves around the applicability of a 1917 law restricting release of secret documents, and whether Assange qualifies for "protection" under the First Amendment if he's not a US citizen. This comment regarding the latter point is typical:

"Since when does the first amendment apply to those not living in the United States?"

This goes to the heart of a serious misunderstanding of the First and other Amendments making up the Bill of Rights. It's a mistake I see repeated endlessly in the press and from the lips of pols.

The First Amendment does not "apply" to specific people; it does not "guarantee" the right of free speech and press; it does not carve out an exception to the infinite power of the State; it is not a limitation that should be worked around or bypassed when inconvenient.

The First Amendment (and the other 9) is an *emphatic reminder* from the Founders that the Constitution GIVES NO POWER OR AUTHORITY to the U.S. government to exercise any control over speech and press. Period. The Constitution does not grant such power, and this amendment underlines the point, and *attempts* to block workarounds by ambitious politicians and bureaucrats. It emphasizes the point that the government "shall make no law... abridging the freedom of speech, or of the press."

If the government is granted zero authority to limit free speech and press, the question of whether the individual in question is a citizen of the U.S. is completely irrelevant, as is the question of whether he is a journalist. The First Amendment does NOT say "The government shall make no laws regarding freedom of speech or of the press -- for citizens, or for journalists as defined by the government."

Does it?

No interpretation of the First Amendment can create or invent authority for the government to make laws restricting freedom of the press or freedom of speech. If you happen to find a 1917 law that appears to say otherwise, then it's an argument for viewing that law as an unconstitutional power grab by the government -- that law does not override the First Amendment.

I am repeatedly disappointed to see conservatives and liberals alike view the Constitution as an inconvenient block to Righteous Action, one that needs to be bypassed regularly -- often by tortured interpretations of other parts of the Constitution that serve to make the Constitution and its Bill of Rights into pure nonsense (hence the "Ink Blot" interpretation of the 9th and 10th Amendments).

The Constitution is a (limited) grant of authority to the federal government, beyond which it may not go. It is not a list of citizen rights. Citizens have all rights not otherwise limited by the grant of authority (and there's an amendment that says that too, which is also generally ignored, and with which you are likely not familiar either).

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