The ICAS Lectures

No. 99-226-EFC

 The U. S. Constitution: 
 The First Amendment 

  Edward F. Chacker

ICAS Winter Symposium
Asia's Challenges Ahead
University of Pennsylvania
February 26, 1999

Institute for Corean-American Studies, Inc.

965 Clover Court, Blue Bell, PA 19422

Tel : (610) 277-9989; (610) 277-0149
Fax: (610) 277-3992


Edward F. Chacker: Biographic Sketch



 The U. S. Constitution: 
 The First Amendment 

Edward F. Chacker

My thanks to the Institute for Corean-American Studies and to your Senior Fellow and Executive Vice-President Sang Joo Kim for inviting me to participate today. It is a great honor to appear before you on behalf of the 14,000 members of the Philadelphia Bar Association at an event which, I'm pleased to note, is co-sponsored by the Association's International law Committee.

I feel a real sense of pride to speak today as the son of immigrant parents who found a new life and new opportunities in this great country.

John Marshall, the first Chief Justice of the United States, called our U.S. Constitution "a Constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

Well, our Constitution has certainly faced its share of crises. And, over and over again, it has adapted to meet the needs of the moment.

So, Chief Justice Marshall was right.

The Constitution has a way of remaining constant and reinventing itself at the same time.

Of course, we've all been witnesses to history over the past several weeks and months during the impeachment trial and once again our Constitution was there to guide us.

The Constitution worked.

In the end, our Constitution remains remarkably resilient. Incredibly, again and again, the Constitution rises to the occasion.

In fact, it seems that a crisis such as this only strengthens the document itself and solidifies our faith in the law. Even though an impeachment trial has only happened once before in our history, our Constitutional "guidebook" to the process was ready. It was crisp and for the most part, very relevant.

Day-by-day, the impeachment trial proceeded along with the nation's business. There was no significant disruption. No armies encircled the White House or the Congress. No one seized control of the airwaves. No "enemies of the state" were rounded up and no one was forced into exile.

Not bad for a 212 year-old work-in-progress.

Certainly, freedom of the press -- and freedom of expression -- were important factors in the whole impeachment drama. And that brings us to the topic of this talk: The First Amendment to the Constitution.

The first amendment played its part in these historic events. Without the first amendment (whether we were pleased with what we learned or not) we never would have learned all of the sordid details of the matter in the first place. And, without the first amendment, we never would have had the great national debate that unfolded over the impeachment charges.

But, the origins of the First Amendment go back far before its enactment in 1791.

The First Amendment really traces its organs to a Philadelphia lawyer.

In 1735, Philadelphia lawyer Andrew Hamilton traveled to New York City to defend a German printer, John Peter Zenger. Zenger, who published a newspaper in New York, was accused of sedition for comments which were printed which were critical of the King of England. Remember now, this was 41 years before the Declaration of Independence. New York and Pennsylvania were still colonies.

No one wanted to take Zenger's case. They couldn't find a New York lawyer to defend him.

But Hamilton did agree to take the case and in New York his argument to the jury on behalf of Zenger was spellbinding.

In his argument, Zenger laid out what was to become the basic principle of the First Amendment: that people had a right to express themselves freely in print; that there really is such a thing as freedom of the press -- that such actions are not, in and of themselves, seditious.

Of course, to this day, Philadelphia lawyers continuer to revere Andrew Hamilton. We hold him high as a model. We call him the "first Philadelphia lawyer" because he was the first lawyer from this city to give the term "Philadelphia Lawyer" some renown. And, ever since Zenger's argument in 1735, "Philadelphia lawyer" has come to mean a lawyer who is just a bit more clever, a bit more effective -- a better lawyer than most.

When the Constitution was adopted in 1787, there was no explicit guarantee in there of freedom of the press. In fact, the Constitution guaranteed few in any specific rights. And everybody sort of knew there would have to be some additions to the Constitution to finish the job that the founders started in 1787. Just two years later, in 1789, Congress approved the first group of amendments which were designed to limit the power of the federal government and specifically guarantee certain rights to the citizens and defer certain powers to the individual states. These amendments were ratified by the sufficient number of states in 1791 and became effective at that time.

They came to be called the Bill of Rights.

As the first part of the Bill of Rights, the first amendment guarantees four specific rights:

the right to worship;
the right to free speech;
freedom of the press;
and, the right of free assembly and to petition the government.

The first amendment grants these rights in a passive sort of way. It actually tells the government what it can't do instead of describing what it can or must do. It chooses to prohibit -- to greatly limit the role of government.

For example, the right to worship means that Congress can make no law either establishing or prohibiting the free exercise of any particular religion or religious belief.

Likewise, the Congress cannot abridge the freedom of speech, or of the press or of the right of the people to assemble peaceably and petition the government.

So, in the area of free expression, those people who founded our country decided upon a generally "hands-off" approach for government.

As with any area of the law, though, there are exceptions.

Right in the Constitution it says that citizens can assemble and petition peaceably. There's that all important word: peaceably. It means you must exercise your right to free expression in an orderly way. You have to follow the law. For example, if the government requires you to gain a permit for a gathering or demonstration, you have to legally obtain such a permit. Care must be taken that such an event is not unnecessarily disruptive or does not threaten public safety.

But if the government decides not to grant a permit for the event, it must have a good reason. Government cannot capriciously deny this right. This is one of the reasons why groups such as the Klu Klux Klan, for example, have been permitted to march and demonstrate, within legal guidelines, even in racially and ethnically diverse neighborhoods.

Throughout the area of free expression, the law seeks a balance between the right to gather, to worship, to express and promote certain views and the well-being of the broader society as a whole. At the same time, individual concerns also come into play. In the realm of freedom of the press, for example, libel and slander laws place certain limitations on journalists, editors and authors.

Libel is defined as an injury to a living person or the memory of a deceased person -- an injury consisting of false, malicious, unprivileged information that is published with the intent to defame. Slander is the same sort of defamation carried out via the spoken word.

It is hard to prove libel and even harder to prove slander -- and rightfully so. The threshold is high to protect freedom of the press and free speech.

In recent years, questions of religious freedom have largely revolved around the issue of separation of church and state. The United States Supreme Court has said that it's okay for us to print "In God We Trust" on our money and to open the sessions of Congress with a prayer but it's not okay to have prayer in the public schools.

In this and many other ways, a clear line has been drawn on the issue of church and state; even extending to religious displays on public property. Generally, the Supreme Court has prohibited such displays, with certain very specific exceptions -- such as educational displays or displays that are clearly unrestricted and contain a non-religious or secular element.

One of the major First Amendment battlegrounds involves issues of obscenity and pornography. The Supreme Court has defined obscene material as "material that, taken as a whole, appeals to the prurient interest of the average person, depicts sexual conduct in a patently offensive manner, and lacks serious literary, artistic, political or scientific value." Those many conditions tend to greatly limit what can definitely be defined as "obscene."

Again, the law tends to come down on the side of free expression. It tends to steer away from censorship.

A very recent battleground in this area involves the Child Online Protection Act which Congress passed in an effort to protect children from pornography on the Internet. The federal courts have so far refused to allow this act to take effect. They've blocked it. They've done this out of concern that it could limit the constitutionally protected right of free speech. While we're still awaiting the final word on this, the act is blocked. This issue will continue to wind its way through the courts and may even reach the Supreme Court. An earlier law passed by Congress -- the 1996 Communications Decency Act-- was eventually overturned by the United States Supreme Court.

In our society, the marketplace of words, images, thoughts, ideas and beliefs is a very open marketplace.

And, while we may not always agree with the words and ideas and images being presented, we broadly respect the right to free expression.

Of course, there are words that we'd rather not hear.

Images that we'd rather not see.

Thoughts and ideas that we might not embrace under any circumstances.

Beliefs that we don't even want to consider.

We have the right -- individually -- to say "no."

You don't have to see that movie. Turn on that TV program. Buy that newspaper, book or magazine. You don't have to join that organization. You don't have to go to that church or mosque or that synagogue. In fact, you don't have to go to any house of worship at all if you don't want to.

And you can control what comes into your home and monitor, for the most part, what your children are exposed to.

But you can't remove magazines from the newsstand.

You can't blow up the TV transmitters.

You can't burn the library's books.

And you certainly can't go around burning down churches -- though come hateful people have tried.

You can't tell your neighbor what to read or what to watch or what to listen to or how to think or what to believe. That's your neighbor's right.

You can't tell me.

And I can't tell you.

Sure, we can have a nice discussion. We can try to persuade one another. Virtually, all ideas can compete in the marketplace. But the key word is "compete" -- not "compel."

This freedom of expression is why people come to America in the first place. It's what we're all about.

It's one of the reasons why my parents came here.

And it's guaranteed by 45 words -- just 45 words -- which we call the First Amendment to the Constitution.

Again, we have used these 45 words and the rest of our Constitution well. We've adapted the document to changing times. Even when the Internet came along, you see, we were able to apply these basic guidelines.

The document has worked.

And it was written and adopted right here in Philadelphia.

Understandably, Philadelphia lawyers take great pride in this document and in the rights that it guarantees.

I'm concerned about recent studies that show that the general public has very little knowledge or understanding of the Constitution and its guarantees. For example, a recent poll found that only six percent of all Americans could name all four rights guaranteed by the First Amendment. These are the rights that I just talked about today. Imagine, the vast majority of people could not name all four of these rights. In fact, fewer than half of all Americans surveyed could name even one of these four rights.

That's sad.

That's troubling.

Because, if you do not know your rights, you increase your chances of losing those rights. You can't do a very good job of protecting something if you don't even know it exists.

Fortunately, there is an exciting new effort underway to increase public understanding of the Constitution. Fittingly, it's right here in Philadelphia and it's called the National Constitution Center (NCC). What's envisioned is a multi-media, inter-active attraction on Independence Mall that would educate not merely visitors to Philadelphia but the entire nation.

As Mayor Ed Rendell has said: "Our objective is to reach out to all Americans so they can more fully appreciate not only what the Constitution says, but more importantly, what it means to their lives and the lives of their fellow citizens."

Groundbreaking is scheduled for Constitution Day, September 17, 2000 with the opening set for September, 2002 during the Philadelphia Bar Association's Bicentennial.

The Philadelphia Bar Association is taking the lead to help raise the money to build the new National Constitution Center. Major law firms and individual lawyers are contributing through a campaign called "the power of an hour" which asks lawyers and other law-related employees to contribute the equivalent of one hour's earnings to the fund. The Association is attempting to make this a nationwide effort so the legal community throughout the nation can participate.

When the Constitution was finally completed back in 1787, the delegates to the Constitutional Convention were weary and reflective. The nation was still very young and unstable. The leaders of this new nation did not know if they had done the right thing.

It was then that someone turned to Benjamin Franklin [the founder of this great University] and asked: "What have we wrought?" And Franklin replied: "A republic, if you can keep it."

Thanks to the Constitution and provisions such as the First Amendment, our republic has endured.

We've been fortunate.

But we must never forget Franklin's words "if you can keep it." "Keeping it" -- keeping our nation free and just -- is our responsibility: yours and mine.

That's the solemn promise of our Constitution.

If we can keep it!

This page last updated 7/3/99 jdb


ICAS Fellow