Expert: Michael Troy - 4/8/2003

Question
Mike,

I hope you don't find a second question bothersome.  You provided an excellent answer, but now I am wondering about the intent the framers of the constitution had in mind when they wrote the 1st amendment.

At that forum I posted the following concession about the freedom of speech and mocking others religion.

"After some study and pondering of the 1st Amendment I have come to the conclusion that although mocking the religion of others was not the intent of the amendment, it is protected under the amendment's umbrella."

I was informed that I was "still dead wrong" because "The first amendment is, and always was, about the right to mock, question and attack notions with which one does not agree."

My impression was that what the framers of the constitution had in mind was the right to criticize the government without fear of reprisal and the other areas such as mocking others were added by interpretation as needed.

Did the framers originally have 'mocking others' in mind or was this topic part of what has since been interpreted as covered by the amendment?

Thank you,
Billy  

Answer
Hi again Billy,

First, keep in mind that there is no single view that contains "original intent."  There were many different framers and each of them probably had a different view about what exactly the First Amendment covered.

It is generally understood that the core purpose was to permit free and open discussion about important public affairs.  So to the extent the First Amendment prevents the government from banning any criticism of another's religious beliefs, I think that is a pretty core value.  Mocking is a form of critism that makes a point.  In this case: "Dawinism is right and Christians who believe in Creationism are wrong."  That is the sort of statement of public interest that I think the First Amendment was meant to protect from government censorship.

However, to the extent the First Amendment prevents private lawsuits for infliction of distress, libel, or other actions based on such a statement, that is part of the principle of free debate but was not really a part of the original understanding.  

Before the 20th century, the First Amendment's free speech provisions were only applied to acts by the US Congress "Congress shall make no law...".  It was only in the early 20th century that the courts decided it would apply to all government actions (state and local governments) and was the second half of the 20th century before they started applying it to private suits, public schools, etc.

- Mike