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Virtual First Amendment Some legal scholars believe that interpretations of the Constitution of the United States by the Supreme Court Of The United States has in effect created a Virtual First Amendment which in practice supersedes the written text of the Amendment . This is because over the years, the literal text of the First Amendment has been seen by the Supreme Court as inadequate to address the needs of a changing society. For example, in Denver v. FCC (1996), {Link without Title} , the Court stated that "this Court, in different contexts, has consistently held that the Government may directly regulate speech . . .", even though the text of the 1791 First Amendment states clearly that "Congress shall make no law... abridging the freedom of speech, or of the press . . .". As the Court itself has indicated, it has functionally revised the plain meaning of the 1791 text through a series of cases (decided for the most part in the 20th century) and "tests" contained within those cases. This approach is not without controversy. Several commentators maintain that its exercise amounts to the Court enacting functional/virtual amendments to the Constitution, a power not textually granted in the Constitution. Others hold that the discussion of court interpretation in the Federalist Papers and the general tradition of interpretation covers these kinds of decisions, and that they do not amount to virtual amendments or alterations of the Constitution. Thomas Ladanyi, in his book ''The 1987 Constitution'', presented a text which he claimed was the current effective or virtual wording of the First Amendment. The text below is a brief representation of this virtual text which Ladanyi claims has been used by the Supreme Court in its First Amendment jurisprudence over the years. Text of the Virtual First Amendment (heavily abridged) No State legislature or the Congress of the United States shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press all media of information; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. This general prohibition shall be subject to the following elaborations, extensions, restrictions, limitations, interpretations and conditions: a. The absolute freedom of engaging in or refraining from speech and non-verbal communication, and receiving or refusing to receive information, without any coercion, shall be a rebuttable presumption in any administrative or judicial proceeding, concerning any attempts to abridge them. The onus of rebutting this presumption shall rest entirely on the party seeking such abridgment, by showing that the speech or non-verbal communication sought to be restrained, or the information to be withheld, do not, by virtue of some other conflicting and overriding considerations or necessities, fall within the categories of freedoms that this section is intended to protect; b. Any Congressional, State, or local legislation or regulation by any governmental authority, which is so imprecise, ambiguous, vague, overbroad, or excessively general in its terms that it provides a pretext for arbitrary or discriminatory law enforcement, uncertainty in the minds of persons of common intelligence as to the limits of protected communication, and creating a chilling effect on the unrestrained exercise of freedoms clearly not proscribed, shall be wholly void on its face; except that insubstantial defects may enable the courts to merely sever unenforceable parts or specific applications thereof; c. Prior restraint shall not be imposed on any communication by institutionalized or informal censorship or coercion, however subtle, unless, in each instance such restraint is sought, a fair judicial hearing, following proper notice, is held; except where the required delay may cause irreparable harm, upon which a temporary restraining order, subject to a prompt subsequent hearing, may be issued . . . : Krusch, Barry (2003). ''Would The Real First Amendment Please Stand Up?'' Using the First Amendment as a focal point, identifies the process of analysis by which the Supreme Court has interpreted the Constitution, and examines how this process has led to the emergence of a "virtual" First Amendment. : {Link without Title} A critical Review of Kursch's book |
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