So let me get this straight- you don't believe that the constitution or bill of rights applies to the states?

What the Constitution means, whether in the context of the original intent of the framers or as applied to the law today, is a matter, ultimately, for the Supreme Court to decide. See Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).

I'm just going by the words the authors wrote. Perhaps you could answer the question I asked quarkhead.

Why evade the question? Yes or no- do you believe the constitution and bill of rights applies to the states as well? And, by extension, slavery can be legalized on a state by state basis because the constitution and bill of rights do not apply to the states?

Slavery was outlawed in the Union with the 13th Amendment. What Blackstone is saying is he's not an incorporationist. He doesn't believe the Court had the authority to incorporate the Bill of Rights through the 14th Amendment. That means if states don't want to pay for free representation you're SOL. That means if states want to set up a state religion that's dandy. And it presumably means if states want to outlaw guns they can, etc.

So, if that is true- then Blackstone believes that the 13th amendment also doesn't apply to states? Even still, the "I am not an incorporationist" is a pretty ILLOGICAL position.

I think that's exactly Blackstone's position. He's not an incorporationist, but that view goes against reality.

Both the 13th and 14the amendments were post-Civil war additions to the constitution. This couldn't be personal. I don't think Blackstone is old enough to have fought for the Confederacy. Just trying to add a little humor to this thread.

Not necessarily. The 13th says slavery won't exist "within the United States". States make up the Union. The beginning of the Bill of Rights (Congress shall make no law) has always been read to include amendments 1 through 10.

The number of justices that could be considered purists for or against a particular interpretation of the Constitution are few and far between. Most of them have decided to strike a balance in federalism.

In my opinion everyone hates the Court for incorporating certain rights until the Court fails to incorporate a new right and create a precedent that compliments their idea of politica utopia. I don't understand why people gave "liberal" members of the Court flak for passing a "conservative" ruling on Kelo v. City of New London (2005), the case that allowed developers to take and develop private property for private use, for example. Barron v. Baltimore established the private property clause of the 5th Amendment doesn't apply to the states well before the Civil War and the 14th Amendment. It has been the law of the land for 174 years, but to hear some conservatives talk about Kelo you'd think they were asking the Court to completely incorporate the 5th Amendment through the 14th Amendment or perform some pretzel logic to support their idea of political utopia.

Still amazingly illogical way to view the bill of rights

so, to clarify, anti-incorporationists believe that the 1-10 bill of rights don't apply to the the states themselves? What a bizarre and wierd reality they must live in?

So states don't have to honor free speech or the right to keep and bear arms, or freedom of religion?

What other interpretation would you give to the word "Congress" in the First Amendment?

The founding fathers did provide for amendment to the constitution. Here's partial text of the 14th amendment. Incorporation hinges on the highlighted words.

Correct. States, however, can pass their own Bill of Rights—or even an anti-Bill of Rights version except where expressly prohibited in the rest of the Bill of Rights.


Not according to anti-incorporationists.


::shrug:: The reality of purists. There's bad and, I admit, even some good to that way of thinking. The problem is it's too much like flipping a coin.

Assuming your interpretation of "privileges and immunities" is correct, then where does the Court get the idea that it can only selectively incorporate those parts of the Bill of Rights that it feels like incorporating? I've been accused here of living in a "bizarre reality", but what the Court is doing is about as bizarre as one can get.

Such as when, exactly (pertaining to this topic of course)? Please throw us a bone and explain (or at the very least state, directly) what 'bizarre instances' you're speaking of? It's kind of hard for me to follow your argument.

Earlier in the discussion, BoF posted a link to this page, which shows that the Supreme Court has not incorporated the entire Bill of Rights at once, and in fact has only incorporated parts of it on a selective basis. But if "privileges and immunities" means what it's alleged to mean, then logically, it should automatically apply to the whole thing, without the need for selecting and examining this or that provision.

I don't see anything in the 9th and 10th amendments that could be incorporated. That leaves the 2nd and 7th out in the cold.

This thread, however, involves the possible abridging of 1st amendment rights. The 1st amendment has been fully incorporated. So Blackstone, your objections are both academic and anemic.

Let's examine this logic, since that's all that the argument sets upon:

Federal law is a legal fiction.

The First Amendment is a federal law.

Ergo, the First Amendment is a legal fiction.

That doesn't work. Let's try again.

Applying the First Amendment to the states is a legal fiction.

The SCOTUS has applied the First Amendment to the states.

Ergo, the First Amendment is a legal fiction.

Nope, that sucks too.

Applying the First Amendment to the states is a legal fiction.

The SCOTUS has applied the First Amendment to the states.

Ergo, the SCOTUS has applied a legal fiction to the states.

Bingo!

Fine, except all of law is fiction. We invent the fiction. We support the fiction. It is all make-believe, and if you don't like it, that's just dandy. Other people do like it and take oaths to uphold the fiction. Some take oaths and offer their lives to uphold the fiction. That's because the fiction is, in reality and by consensus, a darn good story.

So there you go. Blackstone, I just refuted your logic. You simply don't like the story, and that's your prerogative in a country that happens to support the fictitious notion of free speech across the land, for every citizen, regardless of current state of residence.

In effect, we create our own reality.

Now to address the questions of the debate:

Paraphrased, do the states have the ability to modify the freedom of speech guaranteed by the First Amendment to the Constitution of the United States?

Yeah, a little. Such a modification might be proved to be unconstitutional by the opinion that really matters, which is that of the majority of the judges sitting in the SCOTUS. Oh, but it all goes to opinion, doesn't it.

Sure. That's part of the story. Don't like it, go somewhere that has a different story. Or invent your own and see how far one can get. That's how this whole thing called the United States started. It of course will help if you have some buddies on your side.

Just how we interpret the Constitution as citizens, and legal novice citizens at that, often runs against how the courts interpret the Constitution. Might the current SCOTUS support freedom of speech over the rights of citizens to peace and quiet in their own neighborhoods?

Maybe so. Guess we'll see about that. And I'm looking forward to setting a precedence that makes free speech zones utterly illegal across the land. Or on the other hand, forcing abortion protesters into free speech zones. That would be deliciously ironic. Maybe that's what I really want to see happen. It'd make a good plot twist to the story.

It appears as if enough evidence has been offered for incorporation. BoF's evidence in post #31 clearly lays the matter to rest. So what evidence is there that residential sidewalks do not constitute valid free speech areas? Keep in mind there are cases that point that out-see post #35 for those details.

Old Colorado City, a part of Colorado Springs and an historic neighborhood, has a Family Planning clinic in a residential area. Businesses are common along the avenue-facing part of neighborhoods in that community. So of course the place attracts protesters from time to time.

It would be interesting to see if a law against protesting in *or near* residential areas were to be passed and tested for this situation.

I still like the idea of free speech zones being extended to abortion protesters. I know of a cool spot on the southwestern side of a nearby mountain that'd be perfect. I could fish for brookies while watching the caged people and their signs.

The provisions of due process and equal protection would have little meaning if they did not incorporate the rights and liberties guaranteed by the Constitution; albeit that that interpretation of the Fourteenth Amendment by the Supreme Court has been criticized as “judicial activism” in expanding federal jurisdiction and intruding upon state sovereignty. In this, one can argue that the Constitution doesn’t mean what it says, but that is only to beg the question; for in the final analysis, the Constitution says what the Supreme Court says it says, and there is the end of the case.

You don't see how that can be incorporated? Seriously?


And part of the 5th, and parts of the 8th.


And in order to answer that, it becomes a question of whether the 1st Amendment is applicable to the states. And in order to answer that, it's necessary to examine the Court's logic in applying it. And the logic has been shown to be faulty. And you've still failed to take advantage of ample opportunity to refute that. All you've been doing is sidestepping it.



Ergo, you're saying it's impossible for the Supreme Court to violate the law, because it is the law. It's "just dandy" for you to think that way, but if you do, then please, you and all of you who do should be shouting that from the rooftops: The Supreme Court is a law unto itself, and the entire Constitution might as well be reduced to that one simple statement.

The problem, however, is that as soon as you state that openly and honestly like that to the public at large, they will reject it. Ergo, your fiction is based on a lie.

Ball's back in your court.

I don't understand this. You're saying you don't agree with the Nebraska law, don't agree with incorporation, but would probably prefer the Supreme Court review it so there might be a chance of striking down the law? Or you're just unhappy overall, but are willing to let the law stand in support of states' rights even though you disagree with it?

You are just spitting in the wind.

It is clear, based on the intent of the 14th Amendment - as expressed by its primary author, John Bingham - that the 1st Amendment is applicable to the States. Bingham chose the phrase "privileges and immunities" specifically to overturn the Dred Scott case - which used that specific phrase to deny blacks, among other things, the right to freedom of speech.



Personally, I believe that the 14th Amendment incorporates the entire Bill of Rights. I believe that the 14th Amendment sets a minimum that States must adhere to regarding the protection of the rights of citizens: the federal Bill of Rights.

I'm saying that if (for the sake of discussion) First Amendment incorporation is valid, then the Court would be duty-bound to strike down the law.



That would at least be a logical stepping stone for debate. If the Court were to have taken this position from the beginning, that would at least have been an honest and respectable view, though, I would argue, still in error. I understand what Bingham seemed to have intended, but what he never explained is why, if the Bill of Rights was incorporated by that phrase ("privileges and immunities"), he felt the need to repeat part of the Bill of Rights (the Due Process Clause) in the same amendment. It would have been covered already by the first clause. The only conclusion left is that, in light of the language in Taney's Dred Scott opinion, the intent was merely to require the states to make the same privileges and immunities they already afforded to whites, available to all citizens.

But, in regards to the 1st Amendment, the language of the Dred Scott case clearly identifies freedom of speech as one of these "privileges and immunities."

The 14th Amendment reiterates important aspects of the Bill of Rights and the US Constitution itself. The "privileges and immunities" clause mirrors Art. 4, Sec. 2 of the Constitution.



So, apart from the first clause which defines citizenship, why have the rest of Section 1 at all? All I can say is that, from what I've read, it seemed important to reiterate these fundamental rights.

The dissenting Justice in Adamson v. California provides an extensive appendix documenting the creation of the 14th Amendment. It's worth a read. To address your statement regarding the mirroring of language from the 5th Amendment, I quote this portion:



But, it is clear that the 1st Amendment was intended to be incorporated and applicable to the States by the 14th Amendment. It is interesting to note that the selective incorporation of the Bill of Rights to the States appears to be a form of Living Constitution approach.

True, however Taney was writing at a time when established Supreme Court doctrine was that the Bill of Rights did not apply to the states at all. As such, he would not have been referring to any mandate in the U.S. Constitution when he wrote of freedom of speech. Instead, he must have been referring to the privileges and immunities that all states voluntarily, out of principle, afforded their own (white) citizens.


Which, it's important to point out, predates the Bill of Rights. Again, that argues againt the idea that the clause had anything to do with the Bil of Rights, but supports the idea that it has to do with equal treatment in the way states set their privileges and immunities.


Or, perhaps because "privileges and immunities" doesn't have quite as extensive a meaning as has been imputed to it.


That's all well and good, but it still doesn't explain why this wouldn't have already been covered by the Privileges and Immunities Clause. The word "Nor" that begins the clause implies that it's beginning a different idea than the previous clause.

That doesn't tell me what you want underneath the layers of pro-federalist arguments you've laid out. The first sentence suggests you want the law to be overturned, though I don't know if you mean it at the state or federal level. The second sentence expresses disbelief in the federal judiciary's authority to even redress the rights of the anti-abortion group you believe have been violated. So my question remains: do you prefer the Supreme Court striking down the state law vs. keeping the law out of federal court to assert states' rights?

Or do you want something else? Perhaps you're a free speech absolutist too for state and federal governments?

Which is why the amendment was put forth. To bypass Supreme Court doctrine and make the Bill of Rights applicable to the States. The Amendment was a way of forcing the States to recognize these "privileges and immunities" for all citizens regardless of the State they were born in or the State they reside in.



The Bill of Rights is an enumeration of the privileges and immunities that citizens are entitled to, is it not? What you are suggesting is that a State could infringe upon freedom of speech just so long as it did so for everyone, but that isn't what the 14th says at all.



Just becuase the word "nor" is used does not imply an unrelated idea. I don't like tast of turkey; nor do I like the taste of chicken. Both are fowl, both are meat. They are related even though they are different.

Look, Blackstone, you've got the information in front of you. You can either read it or not. I've provided a link that explains pretty well the reasoning behind the Amendment.

All in all, this is off topic except in relation to the 1st Amendment. Was the 1st Amendment incorporated by the 14th? The evidence seems to indicate that it was. Discussions as to why the rest aren't are irrelevant. Discussions as to why it is worded the way it is are irrelevant - there is documentation regarding the intent of the Amendment. The selective interpretation by the USSC on this matter is likewise irrelevant because the USSC has determined that the 1st Amendment was incorporated. You have a few choices: you can claim that the 14th Amendment incorporates the Bill of Rights (full stop); you can claim that the 14th Amendment only incorporates some of the Bill of Rights; or you can claim that the 14th Amendment does not incorporate the Bill of Rights at all.

If you feel that the 2nd is true, perhaps you can provide some evidence to support a claim that the 1st Amendment is not incorporated.

If you feel that the 3rd is true, please provide some support for that assertion.

I have illustrated why I believe it is the 1st claim (which includes the 1st Amendment being incorporated). Others have illustrated the 2nd claim (which includes the 1st Amendment being incorporated). Nobody has shown evidence for the 3rd claim. If you would like to provide some evidence for that, I'd like to read it.

The 14th Amendment, 1868, came 15 years after Dred Scott. Let’s look at the practical side of your argument. With your bias against applying the Bill of Rights being applied to the states through 14th Amendment, do you yearn for a return to pre-0Civil war interpretations? Is it alright for the states of Texas and Mississippi to abridge freedom of speech, but not the federal government?

Your take has wide ramifications. Would it be ok for Utah to establish an official church, but not congress?

If the Bill of Rights does not apply to the states, all sorts of things are possible.

Now there's the first real logical thing about this whole back-and-forth nitpicking about logic. If the states can pass laws that curtail the rights listed in the Constitution and its amendments, then what good is the Constitution in the first place? After all, every citizen lives in one state or another. Except those in DC.

So if it's possible for all 50 states to ban the freedom of speech, then that freedom really does not exist. Nor does the Constitution mean anything to the states. Therefore, none of the states' citizens can take an oath of office that involves the Constitution, so nobody can join the military. It also means that the income tax is illegal, so the IRS needs to be disbanded, the national debt defaulted upon, and basically we dissolve the union. Which apparently never existed

I'll go back to the premise proposed, that it's a legal fiction to impose the First Amendment onto the states. That is a lie in two ways, first that all legalities are fictions, which I've already pointed out, and second that the term "legal fiction" is supposed to mean something, but it's redundant. It's like saying "actual reality."

1.)Is the group guilty of disturbing the peace and/or unlawful picketing?

Per the law in Nebraska, the group is guilty. However, I believe the law is un-Constitutionally broad (see below).

2.)s this a matter of the infringement of the right of free speech?

Yes. The Nebraska Constitution says:



The US Supreme Court has ruled that protests are a Constitutionally protected form of speech. Ironically, it was in flag burning cases (Texas v. Johnson and 1990 United States v. Eichman) that it made this determination. Further, picketing has long been a form of protected activity and this law flies in the face of the 1940 ruling in Thornhill v. Alabama.



Limiting protests on streets, especially when danger of violence is not imminent or to be expected, seems to run counter to the Supreme Court precedents.

Thornhill dealt with a law that banned picketing a business and specifically makes it's decision based on the fact that this was a labor dispute. While the idea is somewhat the same, I don't know if it applies to, say, following the boss home and picketing his house. In my opinion, if the anti-abortionists were picketing the clinic where he worked, that would be one thing. Picketing an employee's home is something else, in my opinion. Would it be reasonable for those picketing a labor dispute to picket the homes of employees?

I believe the picketing statute is too broad in that it appears to preclude protests at the clinic as well, but that the "disturbing the peace" statute is valid and applies regardless of the anti-abortionist's First Amendment rights.

Why? Is there some fundamental difference between a person's home and a person's business? Granted, trespassing is illegal. The protestors cannot enter another's property. But why is there a shield surrounding one type of building (a house) and not another? I don't see this type of distinction in the Constitution.

Protestors were outside President Bush's ranch in Texas. Protestors demonstrated outside Nancy Pelosi's home.

I realize that Thornhill dealt with labor disputes, but the same arguments can be extended to other cases and other situations. That is what precedents are for.

I agree that the protestors, regardless of their free speech rights, are subject to disturbing of the peace ordinance. The Court decisions and Nebraska Constitution imply this ("being responsible for the abuse of that liberty").

A don't believe that harassment is protected speech. The distinction between business and home cross this line. Obviously there is an underlying security issue there. A person will feel threatened if they are stalked, just as a threatening note in his/her mailbox would not qualify as protected speech. Or do you believe that it does? Picketing a house/writing a threatening message is specifically targeting the individual and crosses the line to threatening. It is a violation of privacy. Walking down the street and handing out anti-abortion fliers (within reason) would be protected speech. Picketing an individual's house isn't in the same ballpark.



There is a well established legal distinction between the privacy rights of public figures and other individuals.

Well outside Bush's Crawford ranch the way reports tell it. Sheehan set up camp "outside" the ranch and "near" the ranch. They were "stopped by local law enforcement officials" miles from the ranch. I haven't seen pictures of Pelosi's house, but she's a multimillion dollar property owner and vineyard businesswoman. What are the odds her front yard is as small as ours?

This is what concerns me, and why I said I need more info to say how close they came to these peoples' houses. The rich, especially rich public officials, aren't the only people who should be able to enjoy a little zone of peace. By letting people protest right on your lawn classism adulterates free speech law.

I tend to agree with Mrs.P about the private home of a private citizen.

Bush and Pelosi are both public figures. In Bush's case the apparatus of government, his transportation to the ranch, the secret service - security a doctor in private practice does not have - and the press pool, the all move with Bush down to Crawford. An abortion doctor is not a public figure. He/she is not working when they leave the office. Bush is President of the United States 24-hours-per-day, whether in Washington or Texas. Nancy Pelosi is Speaker of the House 24-hours-a-day, whether in Washington or California.

I don't think that precedent would apply to this situation because of the fact that the law in question in Thornhill dealt with premises where an individual is engaged in a lawful business and the action in question in that case was picketing at a premises where the individual (the employer) was engaged in a lawful business. In this situation, the protesters are not outside where the individual works, they are outside his home.

I believe that the picketing law is too broad to be constitutional because it precludes the type of constitutional picketing addressed in Thornhill, but I believe that these protesters are not victims of what makes the law unconstitutional and, therefore, don't have a case for a facial challenge or an as applied challenge.

Correction

In my previous Post #88, I incorrectly inserted words from entspeak into quote tags for MrsP. Sorry about the confusion and thanks for the alert.

The quotation should have been as follows, not what was improperly cut and pasted in post #88.



http://www.americasdebate.com/forums/index...st&p=232010

I wonder where that distinction lies in law. Yes, it exists as a concept, but is it codified?

I did find a case similar to this one in which the SCOTUS upheld a ban on picketing one individual home. The court would not go as far as saying picketing in residential areas was out of bounds. In fact, it implied that picketing an entire block would be preferable to picketing one individual home.

Court Uphold Ban on Picketing a Home



So this has not been decided conclusively in the Courts.

Well, the courts clearly prohibited targetting a residence in this case. I believe that is the matter at hand? The following is text from this USSC case. Frisby v. Schultz:


Case closed. Targeting an individual at his/her residence is out-of-bounds.

And for what it's worth, the discrepancy between privacy rights for public figures versus individuals was established (I think) in the Hustler versus Falwell case.

I agree. After reading, FRISBY v. SCHULTZ, it is clear that this hasn't been addressed by the courts. The ordinance in that case was clearly not too broad to be facially unconstitutional, but the court left the ordinance open to an as applied challenge.

Given the information I could find about the Omaha incident, I can't say whether the group was targeting the single dwelling. They did drive a truck around the block, but were other protesters outside the home? The question that arises is the one mentioned by Justice White in the Frisby case:



The ordinance in this situation, however, could be considered broad, the question is whether it can be interpreted so as to avoid a constitutional issue and whether it unconstitutional as applied in this situation.

So, there is no clear cut precedent, but what are people's opinions regarding the constitutional question?

This portion of the text in the aforementioned case that you (and I) linked to.....

...didn't indicate anything to you about the constitutionality of targeting an individual residence/person? I must be missing something.

As O'Connor states in Frisby, "'Picketing,' after all, is defined as posting at a particular place, see Webster's Third New International Dictionary 1710 (1981), a characterization in line with viewing the ordinance as limited to activity focused on a single residence."

So, if the protesters were marching through the neighborhood, the target of the picketing would be the neighborhood and not an individual residence/person. This is the concern that White brought up. I know that the truck drove around the neighborhood, but there is no information that I can find to indicate that other protesters were not also marching through the neighborhood.

I have a question. Who would be liable if a protestor was injured on someone's private property? The issue is a little different, but there might be a parallel. Although I detest Brittney Spears, I don't have much sympathy for the photographer whose foot she ran over in her own driveway. If he hadn't been in the driveway, she wouldn't have run over his foot in the first place. Likewise, I wouldn't care much if I accidentally ran over a protestor's foot while he/she was standing in my driveway.

Yes, I'm aware of that. But the desirability of the implications has nothing to do with the validity of the argument.



You're missing the point. Taney was saying that if blacks were citizens, states would have to respect their freedom of speech, even though the Bill of Rights did not apply to the states, provided the states afforded the same protection to citizens in general (which, on the whole, was pretty much a given in all states). All that was necessary, therefore, was simply to make it clear that blacks were citizens, which is what the Amendment did.


It doesn't imply that the two things are unrelated, but it does imply that one does not include the other. If I were to say, "I don't like the taste of meat, nor do I like the taste of chicken," that would come across as pretty nonsensical. Likewise, if "privileges and immunites" comprised the Bill of Rights, and the Bill of Rights includes the due process protection, it would be similarly nonsensical to say that a state may not violate privileges and immunities, "nor" may it violate due process.



I'm saying that the correct decision for the Court would be to overturn its precedent incorporating the Bill of Rights (which would obviously allow the law to stand, by default). If they're not willing to do that, then they'd need to strike down the law. The worst course of action would be to say that the 1st Amendment still applies to the states, but that it isn't being violated by this law.

But without incorporation - the intent of the Amendment, a State without a specific protection in it's State constitution could pass a law that, say, infringes upon free religious exercise. Incorporation holds the states to a minimum protection for all citizens regardless of the State they reside in.

As for the rest of your post, I've already stated that ultimately it's irrelevant. The 1st Amendment has been incorporated, unless you'd like to show some evidence that it hasn't.

As they could have before the amendment. But that had nothing to do with the controversies that led to the Amendment. The Amendment was passed in order to deal with southern states that were still oppressing blacks - that was its intent. It wasn't passed out of some remote fear that a state might decide to establish a theocracy (in fact, the trend was already in the opposite direction from that).

Okay, the State could have changed the laws to oppress the rights of all its citizens and not just blacks.



No, that was the cause that resulted in the Amendment. The intent, if you read the information provided, was to apply the Bill of Rights to the States. Don't confuse cause with intent. The Amendment had a broader intent than just the incidents caused the amendment process to start.