Legal Question in Constitutional Law in California

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The First Amendment is written in "absolute" language (Congress shall make "no law" ...) but the Supreme Court has interpreted it in less than absolute terms. For example, the Court repeatedly held (in close-call 5-4 decisions) that "obscene" speech is, well, not speech, as far as the First Amendment is concerned. The logic makes little sense, but it was stuck with the court for eons. The Court has also recognized other forms of speech ("commercial speech" like in an advertisement) that may be subject to a lower level of scrutiny, enabling laws regulating truth in advertising. Fudging has also come along when speech is really a part of a crime (such as the speech needed to make an illegal agreement in restraint of trade). The Court has also allowed greater suppression of speech in the context of schools needing to preserve a learning environment. And, the First Amendment also pertains to freedom of religion, which is another area where the Court has fudged a bit, allowing some suppression of religious practices and some entanglement with religion.

So, while an English teacher might say that the First Amendment is "absolute" in terms of its choice of wording, there is plenty of case law indicating that it is riddled with holes.

Interestingly, the most recent broadside against the FIrst Amendment was one in which the more conservative justices managed to have the majority in holding that corporations have First Amendment rights to speak with respect to elections by speaking to persuade us humans to elect the candidates most appealing to the corporation. (See http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission) While cast as if it were an expansion of First Amendment rights, it is fundamentally a baseless and scary proposition. Corporations are just property, I may own a loudspeaker (or corporation), and can exercise my First Amendment right to speak through my loudspeaker (or corporation), but it is baseless to say that a corporation has First Amendment rights any more than my loudspeaker does. I'm using my computer to speak right now, but my computer does not have an independent First Amendment right. So, what I'm suggesting is, if the Supreme Court is going to give people who own corporations greater rights to communicate as to who we should elect, ultimately the wealthier people will have a greater say in our public affairs, including the election of the President (who chooses the Supreme Court justices) and Senators (who confirm the nominations), and before you know it, the First Amendment that looks so absolute on paper will look a lot more, in practice, like the owners of major corporations want it to look.

So you could easily end up with a game of semantics. Some might say "yes, it is absolute, but when the Constitution says "no law" is does not really mean "no" law." Others might simply say it is an absolute ideal to strive for, but in reality, as interpreted by the Courts, it is not absolute at all.

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