Week+6+-+Lessig+I

__**Week 6 - Lessig I.**__ __**LEVY, Actually**__


 * Cody Witko**: Levy wrote his work “in the unshakable belief that the concept of seditious libel and freedom of the press are incompatible. So long as the press may be subjected to government control, whether or not that control is exercised, the press cannot be free—or is not as free as it should be. Freedom of the press cannot thrive as it should if closeted with a time bomb, the concept of seditious libel…” (xvii). Furthermore, “The electoral process would have been a sham if voters did not have the assistance of the press in learning what candidates stood for and what their records showed about past performance and qualifications. A free press was becoming indispensable to the existence of a free and responsible government“ (273). I sit in agreement with Levy, that criminal libel cannot coexist, at a fundamental level with freedom of press. It seems that in implementing the freedom of speech that is required by our current form of electoral government, one cannot reasonable respect laws of criminal libel without allowing for a slippery slope for limiting speech/thought. Can we draw a conclusive line somewhere in between libel and an ultimate freedom of speech? Yet freedom of press is necessary for the monitoring of and the placement of accountability on rightful governing. So, as history of law tells us, I suppose it is up the system we now have in place, not to draw a straight line of where free speech can be limited, but do discover this jagged line on a case by case scenario, revisiting and revising the line as insight and experience allows us to.


 * Susan Thomas:** Page 258: "Mere 'paper barriers' might fail, but they raised a standard that might educate the majority against acts to which they might be inclined." This phrase refers to Madison's worry that, even if the Bill of Rights passed, it might simply fall by the wayside. However, the second clause is interesting and reflects a very practical reality discussed in both sections we read--that of an educated and enlightened public, which comes about through the very thing he was hoping to protect--free speech--for which Rousseau so forcefully argued, and the divorce of legal precidents on paper and the reality of what happens in real life (what practical control the government truly has the power to enforce). This makes me wonder, if the bill of rights were to fail today to the degree that our freedom of speech was completely overridden, would it even be possible for the government to gain practical control or enforce those restrictions? Given the vastness and pervasiveness of the "information age" in which we live, thanks, largely, to the internet, would it even be possible? We might look at North Korea as an example; however, their natural, human rights have been subjugated for so long, we wonder if any of them even know what they're missing. But, it is different in this country, where 'freedom' (although the concept is often misunderstood and misapplied) seems to be the single highest good we treasure, as a people.

In the preface on page xvii, Levy quotes Harry Kalven on seditious libel, “my point is not the tepid one that there should be leeway for criticism of the government. It is rather that defamation of the government is an impossible notion for a democracy. … If (a society) makes seditious libel an offense, it is not a free society no matter what its other characteristics.” This is the claim that essentially says that regardless of the fact that those who ratified the Bill of Rights very likely did not think the First Amendment nullified the concept of seditious libel, there is still reason to favor the interpretation of Meiklejohn, that the first amendment is absolute in its restriction on laws abridging freedom of the press. Is Levy’s book, which provides a wealth of evidence for the conclusion that the first amendment never meant to nullify seditious libel, harmful to the cause of press freedom? In other words, is there a reason to prefer the exact meanings and intentions behind each amendment when they were proposed and ratified over the interpretation that has developed through real world governance and court cases since the founding of the USA?
 * Brendan O'Donnell**:

"Speaking "with Reserve and Respect," as Machiavelli put it, is not speaking freely. Free speech as we understand the term had some basis in everyday experience but remained nearly unknown to legal or constitutional history and to libertarian thought on either side of the Atlantic before 1776... The First Amendment's guarantee that freedom of speech shall not be abridged was therefore almost without precedent" (5). It seems that throughout history, while not directly altering the First Amendment, people still find ways to tack on laws that punish people for the the F Amendment should protect. The F Amend 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." Yet somehow people can be punished for libel. Nowhere does it say that speech is required to be truthful. If I want to walk up and down Main Street yelling that my neighbor killed my cat, whether it's true or not, I should have a right to do it. I should also have the common sense to not actually do it though because it wouldn't solve any problems and no one wants to hear another person screaming about a dead cat. If people held themselves to a higher personal standard, would many issues concerning free speech would be solved? Do we need to focus more on the personal over the public part of free speech? What laws can be imposed to take away the rights of the First Amendment? How are these laws justified? Are they rightly justified?
 * Beth Ropski!:**

I also found this quote interesting: "Chief Justice John Holt in Tuchin's case (1704) explained the rationale underlying the concept of seditious libel: 'a reflection on the government' must be punished because, 'If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it... this has always been looked upon as a crime, and no government can be safe without it" (9). It seemed like a very strange thing for a political figure to say. I think that the fact that people do feel ill opinion towards the government allows the government to subsist. If there was no ill opinion, it would be difficult to solve any underlying problems found within the government. It would be like a first draft of an essay, with no critique, it'll stay unedited and have mistakes in it. Should governments attempt to stay steady and unchanging? or should they be open to public critique and disapproval? How much say does the public actually have in the government? What qualities would make a government 'safe'?

Pg 5 “Neither freedom of speech nor freedom of press could become a civil liberty until people believed that the truth of their opinions, especially their religious opinions, was relative rather than absolute; until kings and parliaments felt sufficiently strong and stable to be able to ignore political criticism; and until the people considered themselves as the source of sovereignty, the masters rather than the servants of the government.”The conditions necessary for there to be the freedoms listed in the first amendment, that the self-governing people grant themselves, seems to be reflected in what we've so far read, dealing with the access to the rights and not the granting of them, but what I am curious about is how here the freedoms of speech, press, and religion become necessary for one another. Is it possible to be granted one or two and lack the others, or does that even matter? Would the granting of just one imply the granting of the other two?
 * Randall Gunn:**

I think it interesting to note the importance of the printing press with regards to the understanding of the freedom of speech. The printing press, arguably one of the most important inventions in the last 600 years—and arguably, one of the driving forces of the protestant reformation—revolutionized the way we understand, communicate, and relay ideas through the written and spoken word. The printing of documents, in a sense, “makes documents official.” A document, or an idea is not official until it is written down, printed, published or documented. However, with this printing revolution, as Levy notes, instilled fear and conscientiousness with regards to what was printed. Thus, a ‘freedom of speech,’ was not all that free. He writes, “..the presence of punishment afterwards, for “bad sentiments,” oral or published, had an effect similar to a law authorizing previous restraints. A man may be whipped and jailed for what he says or prints is not likely to feel free to express his opinions even if he does not need a government license to do so” (13). I wonder if today we experience the same thing, in a different way however. It seems possible that works are not written, published, or discussed due to the fear of what may follow afterwards. Might they be persecuted, ridiculed, and deemed dangerous to society? And if the answer is yes to these questions, then the writer may not feel comfortable having his or her works published. And, if that is the case, then it follows that speech might not be as free as we would like. If we are scared to express our views, beliefs, thoughts—expressed via the printed word—then how does the protection of the freedom of speech even seem valuable? If the ‘protection’ inversely scares those to be printed and publish, then there is nothing worth protecting in the first place.
 * Bryce Blankenship**

**Tim Johnson** "Parliament did not permit freedom of speech to nonmembers. It prohibited unauthorized reporting of parliamentary proceedings. Reflections on either house or any of its members or on the government generally ... fell subject to prosecution by the house itself." This, along with much of the first chapter of Levy, is indicative of the early English understanding of 'freedom of speech.' For the English, it seems, free speech was meant to apply ONLY to members of Parliament acting in their official capacity, rather than to the citizenry as a whole. Given that this is the environment which formed our own Founding Fathers' ambitions for freedom, one suspects that such restraints (though they may not necessarily have been prior) had a significant impact on their thinking as they composed the Bill of Rights. The idea itself certainly seems to align with Meiklejohn's view of the First Amendment as protecting only public (ie political) speech, albeit in a more restrictive fashion. Further, English judges "refused to permit the defendant to plead the truth as a defense." Given that times have changed, my question, then, is this: was Parliament justified in being so fearful of the governed learning the truth of their deliberations? We have this idea today that "the truth shall set you free," but clearly the English of yesteryear were not so enamored of the notion; was this truly a result of fearing the impact of unrestricted political speech on governmental effectiveness, or was it a question of keeping one's activities, public or private, as close to the vest as possible?

Levy writes, “Most people undoubtedly cared about protecting freedom of speech-and-press, but no one seems to have cared enough to clarify what he meant by the subject upon which he lavished praise. If definition were unnecessary because of the existence of a tacit and widespread understanding of “liberty of the press,” only the received or traditional understanding could have been possible.” (267)
 * Ben Gearheard**

If there were a tacit understanding on what the freedom of the press actually meant, I would not expect to find disagreement and much argument written about it, and in that sense Levy is persuasive. But then the question arises, if what the framers were doing was writing down tacit understandings of rights, and if the illicitness of sedition was traditionally understood, why did they not include any language in this amendment on speech condemning seditious libel? Levy says the framers didn’t intend to allow sedition, but Meiklejohn holds the first amendment is absolute, at least in the public domain of speech. How do we reconcile these two thinkers?

Levy states in relation to the English government that: “it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavor to procure animosities as to the management of it.” This made me think of Rousseau’s concept of the ‘general will’ as being what acts as the governing body. It seems that through Rousseau’s government, concerns such as the opinion of the people would be irrelevant because a change in opinion would result in a change in government; the people’s opinions what comprises the government. Levy writes that: “The judges refused to permit the defendant to plead the truth as a defense.” This to me also shows that, under such conditions, the people are ruled by the few and the general will is being suppressed.
 * Tyler Morrison**

**Brian Malone:** In his work //__Emergence of the Free Press__// Levy gives may historical examples of people being brought up on charges for what they say. He also brings up thinkers like Machiavelli who said, both “Think all things, speak all things, write all things” and when people are speaking of princes, though they are free to speak, “Talked of with Reserve and Respect.” Levy also looks at the fact that people like Socrates was killed for being blasphemes by people who prized freedom in all things for citizens. By far the thing that made me think of today was when Levy (on page 3) brings up the hero of //Ion// who hopes that he is by birth an Athenian because as he says it, “By my mother may free speech be mine.” I say that this makes me think of life in this world today because around the world people say that they wish to be an American because then they could have the freedoms that we take for granted. If one speaks to any immigrant to the USA they say that they came for a better life and that they desired the freedoms we have by birth as citizens. My question for discussion in class is that if we as people who were born with all these freedoms take them for granted and somewhat even long for the life, though somewhat romanticized, of the immigrant that wants the life we have from birth?

These two passages seem inconsistent to me: "What is clear is that no evidence suggests an understanding that a constitutional guarantee of free speech or press meant the impossibility of future prosecution of the seditious utterances" (pg. 269) and "Moreover, the Sedition Act, passed less than seven years after the ratification of the First Amendment, suggests that the generation that framed the amendment did not consider the suppression of seditious libel to be an abridgment of freedom of speech or press. Yet the Framers themselves, whatever they understood freedom of speech or press to mean, had given the public specific assurances again and again that neither speech nor press could be the subject of repressive legislation by a government bereft of authority on that subject." (pg. 269). My question is about what "future prosecution of the seditious utterances" refers too. For example, could I say something seditious towards the government in an instance of figurative speech when expressing my frustration about some legal matter and not be punished because of it thanks to the First Amendment, and then 3 months later be charged with committing a seditious offensive because after further deliberation a group of people who hold authoritative power decided I am a threat? When in time is it constitutionally acceptable to charge someone with a seditious crime?
 * Emily McCormick **


 * Jordan Howser**

Levy writes on page 7, "We have created an engine of influence that seeks not some particular strand of political or economic ideology, whether Marx or Hayek. We have created instead an engine of influence that seeks simply to make those most connected rich". A number of free speech issues come to mind here. This 'engine of influence' seems not only to spread to the political realm, but also to the media realm. The voices of the large and wealthy have become so loud and powerful that they seem to be coming from ourselves. I am not only fed up with Congress and politics, as private interests are obviously at work in them, but I am fed up with the 'news' as well. Accurate information is

I enjoyed reading the historical context behind Jefferson's and Madison's beliefs on the Bill of Rights as it pertains to freedom of the press. An interesting component of the reading I had not thought about yet, this course, follows from Madison's position on adequately protecting rights beyond the Bill of Rights (chapter 8 page 255), stating that the "government, after all, was the instrument of majority, which could endanger liberty." Then, an additional instrument of the majority had to have been the watchdog of the press because "public opinion tended to distrust an administration that sought to imprison its critics" and the "press could not have endured without public support." (chapter 8 page 271) Levy clarifies in the rewrite of his previous "provocative thesis" that the press also enjoyed a "preferred position in the American constitutional scheme because of its special relationship to popular government." I am not certain how we define “press” in discussion for this course - but it seems, from a historical perspective, the free press truly was “indispensable to the existence of a free and responsible government.” Whereas today's press / media is highly criticized for not providing a true reflection of what is occurring in the political sphere (albeit because of funding of advertisers, conglomerate owners or corporate politics).
 * Aly Lamar**

I thought this line was especially interesting especially after the bizarre historical assertions given in the second selection. "Theoretically one might say or print what he pleased, but he was responsible to the common law for allegedly malicious, scurrilous, scandalous, or derogatory utterances which supposedly tended towards the contempt, ridicule, hatred, scorn, or disrepute of other persons, religion, government, or morality. Blackstone, the oracle of the common law in minds of the American Framers". How can the author make the claim that Blackstone was held in such a high regard for his precise beliefs? It is certainly true that they were influenced by Hobbes, Locke and other philosophers but a fallacy by any means to say they agreed entirely with their method. Most of the colonies had fled England either due to persecution or for the sake of opportunity. Considering the political climate that led to the Bill of Rights it is clear that they made the Constitution an amenable document for the changing times ahead, especially in the face of political conflict. Considering both readings is there any way the author can make this assertion of Blackstone? It seems clear that the Bill of Rights did not apply to the states but considering the 14th Amendment and incorporation that has changed today. Is there any way to save the historical argument giving the broad diversity of ideas? Isn't the vague nature the establishment of principles reserved to the states to decide rather than an extension of English common law? How has the Supreme Court solved these questions today?
 * Matthew Baughman**