Schenck V. United States - Freedom of Speech

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.”

 

I chose this passage because Although I am a huge supporter of freedom of speech, the fact that every American has the right to speak their mind and to voice their opinion it needs to be realized that along with this and all the other rights, particularly those addressed in the first 10 Amendments – The Bill of Rights, this right is a privilege and with that privilege comes a certain level of responsibility. Excising this responsibility is no different than knowing that it is illegal to yell “fire” in a crowded theater or other public space or to talk about “bombs” at an airport. Neither of these things truly infringes on your right to free speech in any significant manner but greatly protects the public at large in regards to their personal safety and the ability to live their lives in a peaceful manner. Laws like this regarding free speech are meant to protect society as a whole and that was what the supreme court was doing when they reach the unanimous decision in Schenck V. United States, although in their particular instance the were dealing with an issue that effected the country while it was at war, and its need to keep order, raise an army and defend itself the concept holds true in peacetime as well. Their decision stating, “During wartime, utterances tolerable in peacetime can be punished.” although pertaining to a wartime situation shows that the right to free speech is open to determination and at times limitation when it is in the pest interest of the majority. As a staunch supporter of free speech I say this not without some trepidation. I strongly feel that anytime it comes to limiting freedom of speech or and part of the First Amendment, it is an issue that must be treated with the utmost care because once begun, these limitations could easily get out of hand, but it is apparent that the Justices that ruled on this decision clearly understood what the framers had in mind when the constitution was drafted and the Bill of rights subsequently added. As Americans we do have the right to speak our mind whether vocally or in print, to let our thoughts and feelings be known and freely expressed and to speak out against the government when we feel the need to do so without fear of reprisal, but not when doing so puts others or the nation as a whole in peril. In my opinion freedom of speech amounts to simply this; freedom of speech means allowing someone to stand center stage and advocate at the top of his lungs that which you would spend a lifetime opposing at the top of yours, that is the true meaning of free speech.

Obama’s Fatherhood Speech

I found this to be one of the most inspiring things I have read in a long time because although it sets the bar high for parents and society, it is not set unreasonably high. What president Obama has done in this speech is to recognize how low the bar is now and raise it not to an unachievable level but rather he has set it back to where it should have been all along; where it was not so terribly long ago.

            Nowhere in his speech does he lay blame but instead points out where parents and society as a whole are missing the mark but then goes on to remind us that getting things to where they should be, back to a way that would build stronger families, stronger communities and in that a stronger country should be the ultimate goal. He recognizes that like himself and even his own father no parent is or can be perfect but that perfection is not the goal.  The goal is doing the best job possible as a father and a parent and acknowledges that this is by no means an easy job. What I really enjoyed as I read this was that he didn’t at any time infer that what was needed was government intervention to make thing better but instead it was government support that could help make the difference.

            It was also encouraging that in the speech President Obama pointed out how he recognized the difficulties that single mothers faces trying the raise their children while working, taking care of the household and all the other things that should be being shared by two parents and acknowledging that although the government couldn’t solve all of their problems or alleviate all of their challenges it could certainly do more to lend a hand and support those mothers in every way possible.

            He also pointed out that men need to step up and take on the responsibilities that come with fatherhood, stating that conception is where fatherhood begins, not where it ends and doesn’t hesitate to say that just as the government should do what it can to support mothers who are trying to raise children on their own it should also do whatever possible to help fathers who are making child support payments and who are trying to do the right thing by their children even if they are absent from the family.  He suggest such things as tax incentives to help these fathers meet their obligations and make it as easy as possible for them to do the right thing for their children. This is a huge step in the right direction.

            He states what would seem blatantly obvious to many of us and that is how important it is for parents to spent quality time with their children, to turn off the TV and spend time talking with them, helping them with their school work and to really try to connect with them and again points out that it is the government’s responsibility to do everything possible to help parents be able to do this by lightening the financial penalties imposed on married couples.

            All these things were inspiring to read but what touched me the most was the fact that he acknowledged that there will be times when in spite of our best efforts things go will wrong and times may get tough and that at those times the most important thing we can give to children is hope.  I think one of the biggest things that is missing from many factions of our society today is hope. Without hope there is no future – because without hope there is no reason for a future.  Children must grow up not only being told but by experiencing that although times may get tough they can and do get better and that they can never let go of the knowledge that the future can always get brighter if they are willing to put in the effort to make that happen.

            Never expect things to be handed to you, never expect that it will always be easy and never expect the sun to shine all the time but also never forget that things can always get better and that the sun is always shining behind the clouds and as long as parents hold onto the ideal that things can get better and strive to make that happen their children will grow up with the same mind set and as long as they are willing to stand by this ideal then they should have as much support, not interference, but support as the government can possibly give them because then and only then can we build stronger families which will lead to stronger communities and a stronger better country, the country that we should also always be striving to become.

What's at stake, after all, is citizens' representation in Congress. Partisan gerrymandering undermines the whole notion of a representative government. For proof, just look toward the lopsided seat distribution in the current Congress.

I chose this passage because I believe that it sums up the entirety of what is being said in both of the articles assigned. One does not have to be a history major or a political scientist to see that in no way does gerrymandering benefit those being represented. That’s not to say that this is “always” true. But in politics, as it is in life, the words “always” and “never” rarely if ever come into play. However it does seem plausible to state that the majority of the time gerrymandering does not serve the best interests of those being represented so much as it does that of those running for office and the eventual turn out of which political party will gain the most power in congress. If the goal is to provide fair and equal representation of their constituents in the House of Representatives how can this be possible when the election district that a congressman represents is drawn up in a way that makes this impossible since the make up of the district is skewed to support a particular party far above and beyond the people in that district? In a prima facie view this amounts to little more than election rigging.
            The practice of gerrymandering election districts needs to be put to a stop and a new, fair and truly representative system needs to be put in place. It would seem to me that the fairest way to do this would be to place a grid over the boundaries of each state and divide it in terms of square miles or whatever unit of measure works so long as it is unbiased and then draw the division lines for each district as close to the dividing lines of the grid so as to assign an equal number of people to every district. Then the representative from that district should be elected to represent that district. I think it would be best, although not necessary, for that person to come from that district. By drawing the boundaries this way it would ensure that there was no political bias toward how the districts were drawn up, they would just be divided equally and let the chips fall where they may. Districts would be of different sizes in terms of square miles but not of the number of people represented. In doing this the representative elected would have the obligation to fairly represent the wants and needs of the people in his district and since the districts would be drawn up geometrically taking nothing into account but the number of people in the district it would cause the make-up of the district to randomly consist of people of various SES, race, and political affiliations. This method may sound overly simplistic but sometimes the simplest way is the best because it leaves little if any room for bias. The people from each district would elect their congressional representatives to represent their needs and wants and not to help a particular party gain majority control and power in the House.

All Citizenship, even in its early forms, was a principle of equality, and that' during this period it was a developing institution. Starting at the point where all men were free and, in theory, capable of enjoying rights, it grew by enriching the body of rights which they were capable of enjoying. But these rights did not conflict with the inequalities of capitalist society; they were, on the contrary, necessary to the maintenance of that particular form of inequality. The explanation lies in the fact that the core of citizenship at this stage was composed of civil rights. And civil rights were indispensable to a competitive market economy. They gave to each man, as part of his individual status, the power to engage as an independent unit in the economic struggle and made it possible to deny to him social protection on the ground that he was equipped with the means to protect him-self. 

I chose this passage because it struck me to be at the heart of the whole idea of civil rights and what the idea means not merely on the surface but at its core. Civil rights were then and are still now a developing concept. To say that we have reached the pinnacle of civil rights, that all men are truly equal is simply and undeniably untrue. In this country it is easy to say that we are all bound by the same set of rules regarding civil rights but this is not more than a superficial statement. True the rules may be the same but the opportunities differ incredibly and this is mostly based on the fact that we are a capitalist society. Now I am not knocking capitalism, I am just stating that it does have a direct and negative correlation to the concept of civil rights and that it affects civil rights on many different levels. In this country there is no honest way to deny that SES is everything. The opportunities afforded to the middle class do not even come close to those afforded to the rich, not to mention the uber-rich or to those living in poverty.

            Look at the so called American Dream, aptly named because you would have to be asleep to believe it. There was a time when it was common to tell a child that anything was possible for him when he grew up, that he could be president someday. But in reality that is an unadulterated lie. The average child in this country has no chance of ever becoming president because his SES simply won’t allow for it. There are many things that factor into becoming president. George W. Bush proved to us that intelligence isn’t one of them but at the same time confirmed that money and political power and connections certainly are. Having said that as an overstated point to demonstrate how each person may have equal civil rights under the law, it also shows how a market economy limits the accessibility to those rights.

            The other side of the coin also holds true. Yes we all have the same civil rights but these rights are as much limitations as they are protections since it is a given that everyone should be and technically is afforded an equal opportunity to achieve the “American Dream” that in most cases they are left to fend for themselves in doing so, Now putting the “Dream” aside, it also leaves a person to fend for themselves to merely survive day to day since the level of social protection – economic assistance in the form or food, money and shelter is so limited und un fairly and unevenly distributed. There is no doubt that rights re not equal to those of low SES, people of color and people who are new to the country and face a language barrier.
            So on the surface, we all have the same rights and protections, but under that very thin veil things are not nearly what they seem or what the people who really run this country would like you to think that they are.

All voting is a sort of gaming, like checkers or backgammon, with a slight moral tinge to it, a playing with right and wrong, with moral questions; and betting naturally accompanies it. The character of the voters is not staked. I cast my vote, perchance, as I think right; but I am not vitally concerned that that right should prevail. I am willing to leave it to the majority. Its obligation, therefore, never exceeds that of expediency. Even voting for the right is doing nothing for it. It is only expressing to men feebly your desire that it should prevail. A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority.

 

I chose this passage because it seems apparent to me, especially in light of the soon upcoming elections that of the percentage of Americans who do exercise the civil obligation to vote, many if not all of those feel, with a great deal of certainty that here is where their political and moral obligation as a citizen both begins and ends. I think that to a great extent the average American who does votes does so for the candidate who is most closely in line with his or her own person and moral beliefs in what is best for the economy first and society second. I would dare say that few would vote against their own pocketbook for the greater good although I also realize that I may be allowing my own cynicism to come a little close to the surface in saying this.  Be that as it may I have a great deal of confidence in saying that Americans believe that their obligation as a moral component of society, consists of conducting themselves within the bounds of both the laws of the land as well as those of their particular faith so long as neither requires too much of a proactive approach. People are willing to obey the law and follow the tenants of their faith when they are in agreement with it and believe that it is for the greater good but very few will ever come to challenge it when they feel it is discriminatory against a particular faction of society and out of those few who are willing to speak out, speaking out is about as far as they are willing to go. Taking action is something that is always left for someone else to do or it is assumed that things will work themselves out, that the politicians or religious leaders will eventually get it sorted out and that the chips will fall where they should and not just where they may. How lucky we are that great men like Dr. Martin Luther King, Jr. didn’t think this way.  As Americans looking at the many challenges that we currently face as a society we need more men like Dr. King to step up and lead and more citizens to have guts enough to stand behind them and back them in their efforts to change things from how they are to how they ought to be. Sometimes the majority is not the majority, just the people that make the most noise while the true majority sit back and wish things would change.

Making Progress

In fact, once a program has been adopted by a large number of states it may become recognized as a legitimate state responsibility, some-thing which all states ought to have. When this happens it becomes extremely difficult for state decision makers to resist even the weakest kinds of demands to institute the program for fear of arousing public suspicions about their good intentions; once a program has gained the stamp of legitimacy, it has a momentum of its own..

 

The reason I chose this section is because I feel it brings the whole substance of the article into summation. Although it is interesting to look at which states are most likely to try something new first and how quickly this new idea will be adopted by the other states and how it assimilates into the American culture what I think is most important is that it happens at all. America is advanced citizenship and in order for that to work and prosper it is important that new ideas and concepts evolve, get tested and then become part of the fabric of the nation. If we had to depend on the national government to do this, especially in a country as large as our the wheels of progress would move much more slowly because testing something new, the legalization of medical marijuana or gay marriage for example, on such a large population would be of much greater risk and take much longer to evaluate. But if these new ideas are tested at the state level, a more limited population, the risk is greatly reduced and the outcome and public reaction, whether rejected or accepted, can be gauged much more quickly.

            Once an idea is given legitimacy it is much easier for the other states to adopt similar versions of the same concept with the eventual potential of it becoming accepted on the Federal level. One of the icons incorporated into the Great Seal on the back of the dollar bill is an unfinished pyramid. The pyramid is unfinished because this country is meant to me unfinished, it is meant to always be a work in progress. One of the best ways for this work in progress to evolve efficiently is to allow the various states to test new ideas, evaluate the results and then, should the prove positive and effective have the other states adopt them at whatever rate and at whatever time those who govern that state feel is correct.  The pyramid is never meant to be finished, this country is never meant to be finished but it is meant to evolve and that is why it is of the utmost importance that the states all try new ideas, as they see fit for their population and then for the rest of the states to follow suit as they see fit without intervention from the Federal Government because this method of progress will allow more ideas to be tested at one time and for society to progress with more speed and diversity.

Mandatory Minimum Sentencing

The second piece by Rachel Barkow, looks at the eight amendment of the Constitution and how it might relate to the current problem of imprisonment in the U.S. Despite the repeated claims to being the land of the free, the U.S. leads the rest of the world in the number of people in prison, which as she points out is made up of significantly larger portions of minority groups in the country. Certainly the profit motive is still alive and well at least, because running prisons has become a profitable industry as of late, led by corporations like the Corrections Corporation of America (CCA) which also lobbys the government for longer prison terms and less leniency, not because it feels threatened by criminals, but because shorter prison terms would mean less business. The U.S. is also the third largest in terms of the number of executions carried out by the justice system behind only Saudi Arabia and China.

The reason I chose this section is because as a substance abuse counselor I personally know many people who have suffered long sentences due to mandatory minimums which have done no good and in many cases have done a great deal of damage and it my strong belief that mandatory minimums need to be abolished and that the entire prison system needs to be completely revamped. Mandatory minimums do not do any good for anyone except for the prison system itself whether public or privatized; it has become nothing more than a very profitable business with little or no regard for rehabilitating people.

In New York State the prison system is most often referred to by the acronym DOCS, which translates to Department of Correctional Services. But this name is little more than a sad joke since there is little if anything at all that justifies the prison system as being correctional in any way.  If you wanted to be more accurate it would simply be called the Department of Detention because that is really all they do. Few if any come out of the prison system as better people and of those incarcerated the longer the sentence the less likely they will be better suited for society because they have become institutionalized and no longer know how to function in the outside world.

The United States currently imprisons more people per capita than any other country in the world.  Although US citizens make up only about five percent of the world’s population we currently house more than twenty percent of the world’s prisoners, the majority of those being people of color. (Slate.com 2010).

In addition to the record number of incarcerations is the number of people who are imprisoned for incredibly long and unjustifiable periods of time for what are indisputably minor infractions, many of these involving drug sales or possession. This leads to the statute of mandatory minimums.  It is unfathomable to me as to how this concept makes any sense at all. The whole idea of having a judge hear a case is so that should the jury find a person guilty, or in the case of trial by judge, if the judge deems someone guilty of what he has been accused then he should have the ability to lean on his good sense and experienced, guided by prior case law to impose a sentence that he deems appropriate. Having mandatory minimums reduces a judge to little more than a Parking Enforcement Officer – park in front of a fire hydrant you get a $50 ticket.  That PEO doesn’t have the discretion to say “Well the car is only half way into the hydrant area so I’ll make the ticket only $30 dollars, that should be sufficient.” Under the statutes of mandatory minimums a judge has no more ability to decide proper punishment that a PEO.  The whole concept is ludicrous.

One of the best examples of this abuse of power over sentencing is the Rockefeller Drug Laws.  The main idea of these laws was to send drug felons to prison with very lengthy sentences even first time offenders caught with small amounts of narcotics.  The sentences were mandatory and leniency was unacceptable (New York Times).  One example of the outrageousness of these laws was a 45 year old man who was arrested in Jamaica, Queens in 1995.  He was arrested for selling while holding six $10 bags of crack.  For this offense he was sentenced to 12½ to 25 years. The felon himself said that incarceration didn’t help.  Drugs are readily available in prison and you are more focused on day to day survival that you are on changing yourself (NY Times 2009).

In 2009 under Gov. Paterson and the Democratic legislative leaders these laws were amended to restore sentencing discretion to judges especially in lower-level drug possession crimes.  Judges would be allowed to send offenders to treatment programs instead of prison.  This is just one example of how sentencing laws and mandatory minimums have gotten out of hand and how and why this discretion must be returned to judges where it belongs.

One last thing that I would like to address although it was only briefly mentioned in the article is the idea of executions as a form of punishment. As the article states, the US comes in third as far as the number of executions performed, exceeded only by Saudi Arabia and China - Now there is a group we want to be associated with when it comes to how we treat our citizens... In this all I can say that it is my belief that execution is wrong on every level.  No doubt society has a right to protect itself but it does not have the right to be vengeful.  It has the right to punish but it does not have the right to kill. I cannot think of any way to put it more concisely than this.