Posted 5 years ago on June 26, 2012, 1:41 a.m. EST by brightonsage
This content is user submitted and not an official statement
The first amendment assures that Congress shall make no law abridging the freedom of speech.One can also reasonably conclude from that language that abridgement would have cause an inequality which the framers were committed to avoid.
There is another way that inequality could arise that they did not specifically anticipate. At that time, the human voice could not be amplified. It could not be recorded, It could not be broadcast over the airways, over telephone lines, wire cable or fiber optic cable, because the technology did not exist nor was it forecast. There was a very small degree of inequality possible to be created at that time.
Written "speech" could be recorded on paper but not in electronic signals, or in optical signals. This was the first indicator that printed speech could be unequally available to to be used to persuade voters. However, it was very easy for the audience to avoid any persuasive affect of this media by not reading it. Still, they clearly missed the significance of this first important advance of media.
The phrase, "equal justice under law" is both symbolically and literally cut into stone on the facade of the Supreme Court building of the United States of America. I believe it was a goal of fairness.
I believe you can reasonably abstract that no law regarding freedom of speech was to be passed by Congress which would cause significant inequality in the freedom of speech and still be upheld by the Supreme Court.
Today, one might conclude that Congress is innocent of such an action and that any inequality in the freedom of speech has not resulted from a statute that they passed.You would be correct.
Yet we all know that inequality of freedom of speech can come about in two ways: abridgement, as they identified, and the other way is by extension. Extension of the freedom of speech to new technologies, including recording, replication and communication and the further extension of the effect of these technologies by the application of money. Lots and lots of money.
Ironically, what has occurred is that the law that creates this reverse abridgement (extension) of the effect of money and unequal justice under the law did not come from Congress, it was created by the judicial activism of the Supreme Court itself. which has clearly violated it's own stricture on its facade,"equal justice under law."
How do the laws written by the Supreme Court get overturned? The Constitution was not explicit about this sort of issue because writing laws was supposed to be the exclusive function of Congress. Five jurists running amok, making up laws, requiring the incredible cost and upheaval of passing and ratifying a constitutional amendment to correct it (or some would claim, a revolution) was not anticipated, yet here we are.
"Reverse abridgement" a useful term to describe what has been done by the Supreme (but not superior) Court.
It this a useful way to look at the Citizens United and Montana Decisions?