The First Amendment: Part 1, Freedom of the Press

 Posts are going to be a bit less frequent as I find myself doing this thing called "research." Also, as this isn't college and this isn't a term paper I'm not going to footnote every fact I find.  I will link all of the sources I used at the bottom of the post for further reading if you are interested.  Ready for it?

I’ve decided I’m going to jump around based on my personal feelings of the most egregious abuses/attacks of/on the Constitution.  So, one of the biggest issues I have with the current Presidency is the attacks on the free press. The First Amendment, included in the Bill of Rights, does not just focus on the press:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There is a lot to unpack there, so I’m going to divide this up into 3 parts, and not in order.  I will speak on freedom of the press first.  Probably, freedom of speech will be next and then religion.   I find it interesting that these were all lumped together, assumedly because these rights were all determined to be the most important.  Honestly, freedom of the press and freedom of speech are very intertwined, but I think there are points to be made about them separately.

Image Source: Wikimedia Commons

Freedom of the press was very important to the founding fathers. Thomas Jefferson once wrote, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” Under the rule of Britain, the press was constrained against printing anything about The Crown.  Anything anti-government was considered seditious. Our Congress recognized that the press was an important watchdog over government so it was made part of the First Amendment.   

There were efforts to subvert it shortly after the Bill of Rights was ratified in the form of The Sedition Act of 1798, which allowed for the criminal prosecution of those who brought the president or the government into disrepute and ridicule.  Today, it is considered to be one of the most egregious violations of the First Amendment to date. Written and passed by the Federalists under President John Adams, it targeted dissent by the Democratic-Republicans and its leader Thomas Jefferson, who admitted to being afraid to “write what I think.” Ten people were convicted under this act (not all journalists) and later pardoned by Jefferson when he became President. 

Times were different then and it was widely known and accepted that newspapers, pamphlets, and other writings were aligned with one party or the other.  Nobody expected or assumed that the press would be non-partisan.

Today, there are some similarities with the situation back in the late 18th/early 19th Centuries.  Two parties, bitterly opposed to each other and the party in power trying to quell dissent.  However, the approach is much sneakier and makes use of two words...Fake News. 

Fake news is not a new concept, although the use of the actual phrase is relatively new. Reporting rumors and made up stories as news had long been the purview of the tabloid press and yellow journalism.  However, it wasn’t until “Pizzagate” and Hillary Clinton referring to the story as “Fake News” that her opponent picked up the term and ran with it.  

Our expectations of the free press have changed too.  Gone are the times that we expected news outlets to be non-partisan. Back in the heyday of widespread trust in journalism, when Watergate was the story on everyone’s minds, almost three quarters of Americans said that they trusted the mainstream media.  News outlets were considered to be unbiased and imbued with journalistic integrity, not identified as “Liberal” or “Conservative.” they were just the news.  

Image Source: PressThink

Today, most media outlets are identified as liberal/progressive and conservatives feel attacked by them.  The media alienated a good chunk of their audience   This made it too easy for the current administration to create a new weapon...Fake News.

All of us remember the infamous occurrence shortly before the 2017 swearing in of the new President.  During a press conference, many mainstream media outlets were denigrated, the most stand out being that CNN was called out as “Fake News” and Jim Acosta, the CNN reporter present, was not allowed to ask questions.   At the time, it was an unheard of situation and stunned many of the press.

Giving credit where credit is due, this was a genius move.  If it was claimed that these news outlets were biased, it would have left them some credulity.  Regardless of your politics, you could accept that underneath the bias of any news reporting, there was likely a grain of truth.  However, by labeling the majority of the big names in mainstream media as “fake” any assumption of credibility was immediately cut off at the knees.  

The first victim of this approach was the anonymous source.  Today, “Deep Throat” would have been dismissed as a made up source and any information attributed to him as “Fake News.”   Right now, there is a report that the President refused to visit the graves of American servicemen killed in the line of duty and described them as “losers.”  This story is being dismissed as “Fake News” because the sources of this story remain anonymous.  This is despite the fact that there are documented situations where the current President has disparaged veterans and those killed in the line of duty before out in the plain view of the public eye.  

This attack on the First Amendment is much craftier and more insidious as it is not directly “prohibiting the free exercise thereof; or abridging the freedom” of the press.   It is making the press toothless, untrustworthy, and impotent.  The watchdog has been caged in a maze of buzzwords and insults. Citizens are confused and don’t know where to turn.  What is fake news and what is not?

As if that wasn’t enough, the President made the assertion that we need “to take a strong look at our country’s libel laws, so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”  This slyly implies that there is too much lying about him going on and he wants to be able to sue over it. 

However, on the bright side, some print media, such as the New York Times, has actually seen an upsurge in subscriptions and donations.  Part of it is because people appear to be looking for more reliable sources of legitimate news, but it’s also because these news outlets have created and/or tightened paywalls.  So while people are becoming more and more distrustful of broadcast news, they are looking for more trustworthy news online. 

The downside of this is that many haven't differentiated between actual journalism and social media and now use Facebook posts and Tweets as news sources.  This becomes concerning when the source of the Tweets is the President who keeps professional fact-checkers very busy.   

What changes should journalism take to combat this attack on their credibility and fight against this insidious indirect violation of the First Amendment?  I wish I had the answer.  Comment below if you have ideas or suggestions. 

Sources for further reading:

American Bar Association: Freedom of the Press: Challenges to this Pillar of Democracy

HistoryNet: Passage of the Alien and Sedition Acts

Boston University College of Communication: President Trump claims the media peddles fake news. Has it made itself an easy target?

THE FIRST AMENDMENT ENCYCLOPEDIA: Sedition Act of 1798 (1798)

The Guardian: Before Trump: the real history of fake news

USA Today: Trump to CNN: ‘You are fake news’

PressThink: Rosen’s Trust Puzzler: What Explains Falling Confidence in the Press?

Niemenlab: More Americans are paying for online news — and those who do say they’re unlikely to stop

Insurrection Act of 1807

This is by no means an expert or in-depth analysis of the laws, but my understanding of what they mean and how they apply to the current state of this country.  This is long, and I apologize, but I feel it's important. 

While I think of what I want to write about the Constitution and how it’s pretty obvious that the current President has no idea what it is or what is in it, I keep getting distracted by other things.  One of these things is the Insurrection Act of 1805.  

This is a piece of legislation that can give certain powers to the President that could be abused if said President is not the kind of person to put the needs of the people he serves above his own interests.  

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Why this is currently important and why it distracted me is that this is the excuse the President is threatening to use to intervene in the current civil unrest in cities like Portland, Oregon and other areas where protests against systematic police racism tipped over into violence.   I was curious, as I am sure many are, as to whether he actually has the power to do this. 

Unfortunately, it looks like he may well have that ability, but there are some things that can limit that power. 

Let’s do some history here.  The background of this act is actually really interesting.  Do you know who is responsible for the creation of this act?  Aaron Burr...yes, that guy...the guy who killed Alexander Hamilton. 

In a nutshell, a disgraced Aaron Burr decided that since his political career was over in the newly formed United States of America, he’d grab his own piece of the continent to make a country of his own.  The Insurrection Act was passed by Congress to give Jefferson the power to thwart him with Federal troops.  He ended up not needing to do so, but he had the power just in case. You can read the entire story on the History.com website.  

The Act has been amended a few times since then, and has been invoked 22 times in total.  Out of those, only 6 times were not at the request of the state where there was some sort of unrest or violence.  So, a vast majority of those times were the governors of that state reaching out to the President asking for the assistance of federal troops.  And of the 6 that were not requested, most of those were race related and were to protect black citizens against things like the KKK and segregationists.  The last time it was invoked was in 1992 by George H.W. Bush, by request of the state of California because of the Los Angeles Riots that happened after the police who used excessive force on Rodney King were acquitted.  

So, could Trump possibly use it to quell rioting in places like Portland right now? It’s possible, but it won’t be easy for him.  

There is another law, the Posse Comitatus (the ability of an officer of the law to conscript any able bodied man to assist him) Act which puts limits on the Insurrection Act.  It states that

Use of Army and Air Force as posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Interestingly enough, The Heritage Foundation, a Conservative think tank provided me with the best explanation of how these two laws intersect and why the Use of 1807 Insurrection Act Should Be Last Resort for Quelling Out-of-Control Protests.

Some other interesting asides I stumbled upon while doing this research.  You may know I am a bit of a data geek.  I took a data analytics boot camp program at the University of Texas and, while I did struggle a bit (as I’m not a developer) I was fascinated by how data can be used to make sense of our world.  Despite my troubled history with numbers...they never lie.  

I found a website where data concerning political upheaval and other similar crises is aggregated and analyzed.  This is a non-profit group called The Armed Conflict Location & Event Data Project (ACLED).  According to their website  “ACLED collects the dates, actors, locations, fatalities, and types of all reported political violence and protest events across Africa, East Asia, South Asia, Southeast Asia, the Middle East, Central Asia and the Caucasus, Latin America and the Caribbean, and Southeastern and Eastern Europe and the Balkans’”

However with recent events, they’ve got a special project going tracking the civil unrest here in the United States.  The interesting things that their analysis shows is that first, the majority of protests have been peaceful:

Click on the image to expand

And that in Seattle, Washington, when police backed off and left the protesters to assemble peacefully, there were no riots.  The shaded part of this graph shows that period of time when police withdrew and protesters were left to assemble peacefully.

Click on the image to expand

Their overall research did show some concerning information showing that riots were not quelled, but caused by law enforcement clashing with peaceful protests.  I may do a separate blog post on this if I get a chance to analyze the data myself. 

They are constantly monitoring the situation, but did publish a report at the end of August, which you can download as well. 


So, that’s why it should be a last resort and why both governors and Congress will likely try to block the President using this power to deploy federal troops on American citizens. 

The Preamble to the Constitution

I'll try to do some research and reading this weekend on the Constitution, but there is one part it that I know well.  In fact, I have it memorized, as do so many of my fellow Gen X-ers, thanks to a great thing called "Schoolhouse Rock."

Back in the heyday day of Saturday morning cartoons, one of the best things ever was a series called "Schoolhouse Rock."   In short, animated music videos, we'd get truly educational content compressed into 3 minutes of entertainment and catchy songs.  There was "Lucky 7" where you learned about math, "Conjunction Junction" where you learned about grammar, and then there were my favorites where you learned about our government.  My generation knows all about bills and how they become laws from this amazing series.

As for me, I clearly remember getting a bonus 10 points on an exam in college because I could write down the entire Preamble to the Constitution thanks to this gem:





"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

This brief statement sets the tone of the document that is the cornerstone of our country.  While the Declaration of Independence is more celebrated in the folklore of the formation of this country, it was really just a good start.  The actual blueprint of our government is set down in the Constitution.

The Preamble tells us exactly what the Framers of the Constitution wanted to accomplish here.  They wanted to create a Utopian government...a more "Perfect Union."  The intent was good, but can any government be absolutely just, make sure that the lives of its citizens are untroubled, safe, successful and that their right to self-determination is guaranteed for all future generations?   

The rest of the document goes on to establish the framework of the government and was amended not long after it was ratified to include the Bill of Rights, the first 10 amendments.  Most people are familiar with the the first few.  

Even the Framers of the Constitution were aware that the document that they all contributed to and argued over was flawed.  Ben Franklin stated, 

“I agree to this Constitution with all its faults, if they are such, because I think a central government is necessary for us… I doubt too whether any other Convention we can obtain may be able to make a better Constitution.”

I wonder if The Constitution were written now, instead of almost 250 years ago, if the people creating it would have taken a more pragmatic approach.   The idea of a Utopian anything seems to have fallen by the wayside, "you can't make all of the people happy all of the time."  However, maybe it is best to set lofty goals just to be able to say you tried your best. 

And I think that there were times that our country, as a whole, did try its best.  The problem I'm having now is that so many people aren't even trying anymore.  The success has finally gotten to the heads of the people in power to the point where they are pitting against each other those who still want that Utopian society and those who want to focus on their own personal Utopia.  

There is no domestic tranquility; we are as far from tranquil as I've ever seen.  The focus has moved on from defending our country from other countries to suppressing the populace.  Our country is troubled and unsafe, success and self-determination are reserved for the privileged.  How did we get here and how can we fix it for future generations?   

All Lives Matter...What Does it *Really* Mean

Me (obviously frustrated, but a middle aged white woman): "There are just people who refuse to understand that when they hear "Black Lives Matter" it has nothing to do with them.  They refuse to understand that it's not a statement that their life doesn't matter because they're not black.  It's not an attack on them.  It's just that it's obvious in our society that black lives don't matter to everyone and to make a point that they actually do.  They always preface the statement that they don't support Black Lives matter and that they support all lives matter with 'I'm not racist but.'  They just don't get that they are inherently demonstrating that they ARE racist."

My boss (being more patient than I deserve and very helpful): "It's just so hurtful."  (pause) "It's like if...God forbid something like this would happen...but it's like if I told you my mom died and you responded with 'yeah, my mom died last week and, Bill over there, his mom died a couple of months ago.'  You're not even acknowledging that something painful happened to me and just started talking about yourself."

Which illustrates the situation so succinctly and clearly.   Something I could never do on my own because I'm not black.  My boss is. 

Anyone here coming from a link from my Facebook post, probably saw a pretty tense interaction on one of my political posts where the subject Black Lives Matter came up.  Frankly, it really threw me that someone who I always refer to as a "favorite" relative would think to use Black Lives Matter as an insult like he did.  Then, when I responded with my very strong belief that anyone who is a decent human being supports BLM, I got the response I described to my boss in the scenario above from another family member.  They were very offended that I implied that they are not a decent human being.  That resulted in my failed attempt to explain.

As a white person, it's inevitable that someone we are related to does not really understand the true meaning of the Black Lives Matter movement and takes it, and anyone calling out that all decent human beings *should* be supporting it, as a personal attack.   Instead of stepping back and wondering, or asking, why someone would say that, they have a knee-jerk reaction and feel attacked.

My initial response, stating that responding to someone saying "Black Lives Matter" with an automatic "all lives matter" and treating All Lives Matter as a movement, is actually racist may seen a little harsh.  Still, a lot of black people believe that it is...so I have to go with that.  At the very, VERY least it is incredibly tone deaf and hurtful, as my boss confirmed.

I don't know if my response actually made any difference in how anyone feels.  I am a political outcast in my family and all of them are pretty used to dismissing anything I say without actually listening.  I think, at the very least, I'm about to be the newest person never invited to any family gathering.

Bless my boss...my amazing boss.  Not only is he a good boss, but he's patient and non-judgmental of my middle aged white woman whining about shit like this.  Yes, I totally acknowledge that I, like so many "woke" white people, can be annoying and reek of possible virtue signaling.  I don't mean to, but I can totally see that even bringing this up to a black friend can come off as my bragging about trying to be a white knight (pun semi-intended), but that is completely in retrospect.  I really just wanted to get his take on what I was doing wrong...or right.  I'm going to really try to quit doing this (retrospect again) as I may be doing this too much.

I don't even want to get into it when people respond to the Black Lives Matter movement but bringing up Blue Lives Matter.  Well, maybe just a little...

You do realize that Black Lives Matter is a movement that is specifically calling out the systemic racism is the law enforcement community?  We have documented proof of law enforcement kneeling on black men until they suffocate, shooting black men in the back, shooting black women in their own home, shooting black children when they mistake a toy for a gun...the list goes on.  If you do find a similar example of this happening with a white person, it's a much rarer occurrence.   Support your local police if you want to, that's fine.  But doing it in a way that slaps the Black Lives Matter movement in the face can only be described as racist.  No excuses.

Also, you are being disingenuous when you say "all lives matter" because, in today's society and climate, they actually don't.  The Black Lives Matter movement will be around until *everyone* actually believes that black lives REALLY do matter.  So, until then

Image stolen from the CBS News article Why saying "all lives matter" communicates to Black people that their lives don't.

Implicit Bias

While I'm trying to find time to read up on The Constitution and prepare my thoughts on why I feel that it is being attacked, I thought we could try something different...

Well peeps, if you're not aware of what implicit bias is, prepare for a shock.  While this is mostly directed to a white audience, you don't have to be white to have implicit bias.

So, if you are have absolutely convinced yourself that you are 100% color blind and have not a drop of racism or colorism in your mental makeup, I invite you to take this test:

Race IAT test

If you're not comfortable just clicking on a link to enter info into a website you can go to the Project Implicit website, read about their data privacy policy and other information about Project Implicit.  When you're comfortable, click on the "Take a Test" link on the top menu bar and choose the "Race IAT" button.   There are more bias tests that you can come back to and try out later as well.

Once you are done, read the Understanding Implicit Bias short publication from the Kirwan Institute of the Ohio State University

While having bias does not mean you are a racist, it can mean that you are unconsciously taking someone's race into account when interacting with them, which does pretty much say that you are not 100% color blind.  Even if it is not a conscious thing.

I think it is important to use this as a starting point before having any conversation about racism.   As a white person, I have to acknowledge that my upbringing and perspective of the world does impact how I relate to people of other races.  Is it possible for me to really understand their experience?   Or is it more important to listen and do my best to empathize?

If you're interested in having a conversation about the results of your test and what you plan to do now that you are aware of the results, please comment below.

Trolls and others that do show evidence of having a calm and balanced conversation will be blocked.

Trying to Make a Difference This Time

 Yep, it's been years and much of what I feared has come to pass.  With about a month until the next Presidential election, this country is incredibly divided and just a scary mess.  I find it interesting that the current administration is running on the platform of rescuing us from what is currently going on in this country when what is going on is the direct result of the current administration.

This president has a history of promoting violence. From the beginning...meaning his campaign rallies back when he first ran for president, he encouraged the beating of anyone protesting at his rally.  

He also has a history of racism that continues to this day.  His existence as the leader of this country has only encouraged citizens to comfortably exhibit their racism openly.   The existing systemic racism in our country's law enforcement was only more openly exhibited proving to many that black lives didn't actually matter to them.   The image of George Floyd pleading for his life, not struggling, not resisting, while one white cop knelt on his neck long enough to murder him while other officers looked on dispassionately will be forever burned in the minds of all of us.  His crime...alleged forgery.  Not any kind of violent crime at all. 

 While this sort of murderous abuse of power has been happening for years, it just seems to have escalated in the last 4 years.  Maybe it's because of social media...or maybe because this is the straw... too much has been happening and it was time to just blow up.

Another thing that has been incredibly disturbing is the number of times that it seems that this administration seems to be ignoring the Constitution.  Maybe willfully...maybe out of ignorance.  

My plan is to study up a bit on the Constitution and try to identify times when this document has been ignored or tossed out the window during this last 4 years.  I will be referring to this website and trying to focus on individual parts of this cornerstone of our country and how it relates to events of the last 4 years.  

Will I change anyone's mind?  Possibly not...but I feel that I need to say SOMETHING or I'm guilty of standing by silently while fascism takes over another country.  My recent ancestors were guilty of this...I refuse to be.