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Implications of Free Speech on Federalism, Civil Rights, and Civil Liberties

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Implications of Free Speech on Federalism, Civil Rights, and Civil Liberties

Chaquita Johnson

POL 303: The American Constitution

Instructor: Agneza Roberson

June 6, 2016



Free Speech

        The First Amendment to the United States Constitution affords every citizen of this nation the right to free speech and freedom of the press. The notion behind the First Amendment of free speech was that our forefathers wanted every citizen not to live in fear with the thought of prosecution being held over their head because they voiced their opinions and thoughts. The Bill of Rights was first adopted in 1791 by our nation, and since then, new laws have been implemented as the United States evolves and we grow as a people. Because words are so powerful, we have made exceptional gains in our civil liberties and rights.  As citizens, free speech is an essential component that helps us remain a free nation. Because this is a free nation, every citizen has the privilege to vote, stand in protest, and express their opinion on matters that affect the well-being of our country. This paper will further examine the positive and negative implications of Federalism, Civil Rights, and Civil Liberties and how free speech has impacted them.

          “Federalism is one of the most important and innovative concepts in the U.S. Constitution, although the word never appears there,” (Sagel, 2015). Federalism was formed to construct independent entities of the federal government, giving limited power to each, which prevents any one sector from having more power than the other. Influenced by the British government, federalism is also defined as Constitutional power created by our Forefathers of this nation’s Constitution. Viewing free speech and federalism collectively, it has upset the balance of power among the branches of government; countless citizens seek refuge in a higher jurisdiction for instance the Supreme Court when the lower court’s ruling does not favor them. To protect individuals from government abuse, their rights to speak without fear or harsh judgment, free speech was written into the Constitution. Keeping the positives and negatives in mind, experts have examined the Constitution and federalism to determine exactly what is “free speech.”  

    According to the professor of Constitutional law, Adam Winkler, he illustrates the effect of federalism on free speech as “being restricted by the federal government, limiting the state and local authority” (Winkler, 2009, pg. 156). Every person in America has essential rights which should not be restricted in any manner as the Framers of our Constitution wrote it with the intent to protect the citizens of this nation. The First Amendment distinctly asserts that “Congress shall make no law…abridging the freedom of speech” (Ivers, 2013, Freedom of Speech, Assembly, and Press), when the Founding Fathers wrote the Constitution in 1797, to create an organized government, nonetheless federalism has often placed power where it should not be. With further examination of the Constitution, federalism in many cases grants the “national and state government to retain control over their respective spheres of influence,” (Ivers, 2013, Constitutional Structure). Since the enactment of the Constitution, there have been pros and cons throughout history.

     One favorable impact on federalism associated to free speech was “Justice Harlan argued state speech restrictions be given more leeway than federal ones” (Winkler, 2009, pg. 157). Increasing state speech and narrowing restrictions against the same entitlement as the federal government proves to the people that the government is comparable in all facets of the Constitution that are constrained by law, it also grants local and state government more control to better impact society. When society can rely on state and local authority, it can gain more structure from its people, instead of continually depending on the federal government to manage state disturbances. Essentially, the Supreme Court employs jurisdiction over local and state government.

    Since Justice Harlan contended in favor of freedom of speech and agreeing with the state government to assert more power concerning the First Amendment, it has evolved into regulations of the law. If the local government does not exhibit an abundance of power in regards to facts of free speech the Supreme Court will intercede giving the ultimate decision if one is to be made. Free speech has limitations and has been proven through several court cases, one clear case that impacts the situation is Friedrichs v. California Teachers Association. According to an article found in the Education Digest, A Christian Educators’ group was said to have violated constitutional rights to free speech because nonmembers of the union were forced to pay “agency” fees. The government sought to rescind the groups’ monetary aid because they voiced their personal beliefs and constricted what teachers can say in classrooms Sawchuk (2015). Even though everyone is entitled to free speech, some establishments can often upset individuals, which is an example of the government re-enforcing the constitution to safeguard the rights of people.

    On the other hand, there is a negative side to federalism. One being that “Primary and Secondary school teachers’ curricular decisions are not entitled to free speech protection,” (Constitutional law, 2010); the article states the “invention of low-value speech” and continues to re-evaluate what the Framers of the Constitution had initially intended for the people. According to Zimmerman (2011), school teachers’ personal lives are often under heavy scrutiny 24/7 for speaking freely on and off school grounds. For instance, in New York, a teacher came under fire for posting on Facebook about a class of irate fifth graders. Though she was voicing her thoughts publically, the First Amendment was no cause for protection, and bans this type of speech in several states across the country.

           States should be given the authority to manage common cases that concern the rights of the people; the federal government should only be granted control in cases that involve capital crimes; civil rights and liberties violations, and not in minor cases of teachers voicing their freedom of speech on social media websites such as Facebook. This case is an example of how governmental structure is not completely ascertained within the powers executed by Congress. Judge Harlan “was one of the original minds that wanted state and local authority to be given more power to exercise their rights,” (Sawchuk, 2015). This case was brought before the Federal Court in which she was ultimately asked to remove the Facebook post. Because social media is used as an outlet to express opinions, the federal government is in control of what is considered to be “free speech.” In some occurrences, social media and free speech do not always infuse well and can create turmoil within the government, mainly among people who work for them.

    Although Civil Rights pledges equality to every citizen and the power to engage in activities without being discriminated against, it has shown to be problematic in past and present times. Chiefly concentrating on the recent frenzy with African Americans over the past few years, there have been several incidents with Caucasian cops shooting African American citizens. Namely, the violence that plagued Baltimore, Black communities protested as local authorities struggled with passionate protests and the demand for justice due to the death of an African American citizen who died at the hands of a Caucasian policeman. The First Amendment states “the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, and to petition the Government for a redress of grievances,” (U.S Constitution, Amendment I, 1789). Protests are protected under the First Amendment and is viewed as ‘free speech’ and a form of self-expression without causing harm to others. However, in recent Civil Rights protests, there has been instances of violence destroying communities in contrast to the 1950’s protests with Martin Luther King, where people stood in protest exhibiting less violence. And still decades later, everyone does not have the same opinion of Civil rights as it pertains to free speech.

 Free speech and civil rights have been fought for by the late Martin Luther King and other civil rights activists both past and present. Civil rights are a citizen’s political and social equality. According to White (2014), “Contrary to conventional wisdom, the category of civil rights did not extend back to the Declaration of Independence or to the framing of the Constitution.” African Americans met severe implications from civil rights and had fought their way through the horrific fight for equality.

    One positive aspect of civil rights as it relates to free speech is that in today’s society blacks and other minorities are more accepted and afforded equal opportunities. According to Bankston (2015), in the 1950’s efforts were made for minorities in America to be fully integrated into society; with the passing of federal civil rights laws in 1964, which focused mainly on equal opportunity, racial segregation in schools and public facilities and voter registration. As a result, Dr. Martin Luther King Jr., an acclaimed civil rights advocate believed in protests without violence, executing his First Amendment rights to expresses his concerns without being obstructed by the government.


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