Chapter 1: What is the main topic discussed in this episode?
Hey, it's Rund. In this month's ThruLine Plus episode, our producers take us behind the scenes of making our episode on the first transatlantic cable. To listen to these insider bonus episodes every month, sign up for ThruLine Plus at plus.npr.org slash ThruLine. This is America in Pursuit, a limited-run series from ThruLine and NPR. I'm Randa Abdelfattah.
Each week, we bring you stories about life, liberty, and the pursuit of happiness in America that began 250 years ago this year. The Declaration of Independence heralded the beginning of the United States and its rupture from the King of England. It promised to become a democratic republic.
And 11 years after the Declaration, the rubber hit the road, and the framers spent months writing the framework that would govern this new nation, the Constitution. To this day, the U.S. Constitution is the country's guiding document. But we've also changed it 27 times over the years, the last time being in 1992.
And those 27 amendments say a lot about how our country has evolved, who we say we are, and who we want to be. So today, Ramtin and I are going to take you back to the first edit to the Constitution, the First Amendment, the right to free speech.
There is such a big gap in some ways between what the average American understands the First Amendment to say and to protect and what the law actually says. And in addition to that, the law is actually extremely confusing and changing every minute. The First Amendment remains one of our most cherished and confusing rights.
We'll explore why that is and the story of how it all began after a quick break. December 15th, 1791. First Amendment to the Constitution of the United States.
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.
While those words may sound simple enough, they've been at the center of political and cultural debates in the United States for centuries, especially that little clause about the freedom of speech.
To understand the power and confusion behind those words, we sat down with George Washington University law professor and author of Fearless Speech, Breaking Free from the First Amendment, Mary Ann Franks. We tend to use the shorthand sometimes and say, well, the First Amendment protects free speech.
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Chapter 2: What historical events shaped the First Amendment?
And that's still true today. We're still fighting over what exactly protected by freedom of speech means. And according to Marianne, that's sort of the underlying story of the First Amendment. It's always been complicated. thing was controversial to start with, right? Because the Constitution was controversial to start with.
And the Bill of Rights, which include the First Amendment, were this kind of compromise to get people who were really nervous about the Constitution and the centralized government to come on board because it was meant to offer some reassurances about how this doesn't, we're not just going to repeat British monarchy. And so you have this package of rights, this 1791, that it gets ratified.
And the First Amendment just happens to be the first because the first two that were originally proposed don't get ratified. And seven years later, 1798, Congress literally makes a law abridging the freedom of speech by passing what are known as the Alien and Sedition Acts that broadly prohibit the ability of Americans to criticize the government. Mm-hmm.
there was always that debate about, well, what about really harmful speech? What about speech that jeopardizes national security? What about speech that tries to criticize this really new fledgling government that we're trying to hold on to and establish a democracy around?
You used the phrase harmful speech to refer to like speech against the government or things like in that era, it seems where they were maybe hypervigilant about particularly like speech against the government criticisms as they're trying to form, as you said, like this like new fledgling nation and everything. Yeah.
But I'm just struck by the fact that just as confusing or complicated as the freedom of speech is to define harmful speech, even then, and for sure continuing to today, is a very hard thing to define. And I'm saying harmful speech, but I guess some people might also lump in like hate speech with that, right? So how much do you see that difference?
sort of tension over what harmful speech is as being a kind of driving factor in the story of the First Amendment. The question of what harm is and how we should count it, I think, is in some ways the story of the First Amendment. Because really what you see from this abstract protection for the freedom of speech immediately becomes a question of practical application.
That is, okay, so we want to broadly protect people's ability to say things, but we also recognize that saying things... can lead to people getting hurt, and it can lead to jeopardizing national security. It can lead to all kinds of public disorder.
So throughout the history of the First Amendment, you see these battles over, okay, is this so harmful that we have to make an exclusion or an exception for the protections? Is this kind of speech so much like conduct that it shouldn't even be considered speech at all, is another kind of debate. And whose harms do we actually care about?
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Chapter 3: How has the interpretation of free speech evolved over time?
Years later, in the late 1960s, that question was put to the test with the Supreme Court case Brandenburg v. Ohio. Clarence Brandon Burke is a KKK leader. He is a KKK leader who calls up a reporter and says, you should come cover this rally that I'm going to be speaking at, and you should bring a cameraman, and you should film everything that happens at this rally.
And at this rally, he's in full Klan regalia speaking to all of these other hooded individuals and says, if the white race continues to be oppressed by the president and Congress and the Supreme Court, we may have to take, and he calls it revengeance. During that rally, they then burn a cross, and they're carrying weapons. They're using anti-Black, anti-Semitic slurs.
It's pretty clear that it's meant to be threatening and intimidating. And the broadcast of the speech is not just played on local news, but it makes national news, so everybody really has the chance to hear it. He's convicted for the speech under the Ohio statute, and it goes up to the Supreme Court, and you get the opposite result.
That is, his conviction is overturned because the court says, oh, we were wrong in Whitney. So what they give you in the Brandenburg case is a different test. No more clear and present danger. Definitely no bad tendency. Now we have a test of imminent lawless action. And this is a really speech protective test, at least in one sense.
It says you can't prohibit people's speech unless the speaker intended really to incite imminent lawless action. That pretty much has to happen immediately. And it has to be really likely that that lawlessness is going to happen. So it's a really... really narrow view of what you're allowed to prohibit under the First Amendment.
How much do you chalk this up to what's going on in the country in each of these moments in One happening, I guess, around the World War I era, right? And another happening at the tail end of the civil rights era. How much is it relating to what's going on in society more broadly at those times, in your opinion?
And how much is it relating to also who's actually making up the court at each of those moments? Yeah. I think both of those things are very important to the way these cases come out. So you've got this interwar period in 1927 where people are just nervous about communists, right? They're nervous about the kind of social upheaval. They're nervous about change.
And then by the time you get to the 1960s, you're at another point of upheaval. But it's going in the opposite direction, at least according to the speaker who's now at issue, who is trying to attack other people. And the court says that it has a principled reason for doing so.
But one kind of blunt way of looking at what happened here is that, well, the court says no to feminism and racial equality and says yes to the KKK. And that has to be partly due to what they're perceiving the value of the speech to be and perceiving the identification of the speakers and how much it matters and what the impact of the speech, how much of it matters.
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