Hamilton The Establishment Clause: Hamilton An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right has been overstated. In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny.
This is an excellent statement as it articulates a balancing of the social responsibilities that attend a right of expression.
It is a freedom within boundaries. Similarly, the right of collecting institutions to show confronting material is something that is changes with the role of the museum, the politics of the day, and the manner and place of the display.
Certainly, the restriction of creativity, of ideas, is not new. The experience of many centuries shows that censors and their motives are extraordinarily diverse.
One of the most obvious tools of control is the legal system itself. The law of obscenity, the law of defamation, classification regimes and anti-vilification provisions are not as dramatic as some earlier forms of restriction, but restrictions they most certainly are.
This section includes some comments on the compliance with and enforcement of these laws. It will then examine the interrelated statutory regimes that govern the classification, distribution and restriction of work that might be considered obscene, indecent or offensive, and the regulation of online services.
The second section examines the law of defamation. The laws of defamation provide our society with an expensive, highly complex, unsatisfactory apparatus by which some of its individuals can defend their reputation after others have exercised their freedom of speech. It is a balancing mechanism.
By it, we are restricted in our commentary on others and indeed, others are restricted in their commentary on us. It is an area of enormous legal complexity and few lawyers are expert in its intricacies. This chapter discusses the components of defamation and its attendant defences of truth, fair comment and privilege.
The final section briefly looks at the legislative restrictions imposed under anti-discrimination legislation. While there are exemptions under the legislation for artistic works and it is likely that they will be interpreted so as to protect artistic expression, the parameters of those exemptions have yet to be conclusively determined.
From the Obscene to the Offensive It is the aesthetic which distinguishes the artistic from the pornographic, the moral which provides the societal gauge that transforms the erotic into the obscene, and the utilitarian which suggests that the members of a healthy society enjoy only pure thoughts and can have no proper use for obscene or indecent publications, images or text.
They restricted access to publications, works or exhibits that were seen to have no redeeming social value. There has perhaps been a shift in more recent times that recognises, in a limited fashion, the subjective nature of judgment concerning what is obscene, indecent or offensive.
The concern with nudity and sexually explicit materials has been replaced by a broader definition of offensiveness that includes depictions of drug use or violence alongside sexually explicit material. The underlying policy reflected in our classification regime is one that seeks to protect members of a society from unwanted exposure to indecent or obscene materials, while at the same time recognising the rights of adults to see, hear and read what they want.
Role of public galleries Exhibiting institutions themselves play an important role in defining what is acceptable, for their acquisition policies are insidiously influential in determining what material the general public can see. The formation of the Salon des Refuses and the fame that hindsight accorded many of its artists stands testimony to the powerful restrictive influence of the art establishment.
Similarly, while one may complain about the machineries of censorship legislation, the commercial galleries and art museums themselves perform considerable informal censorship. Their guidelines are generally informal and unavailable for public scrutiny. Arguably there is a need for major institutions to stand up for freedom of expression by publicly defending the material they choose to exhibit if they come under attack.
By providing for a reasoned and intelligent public discourse in such circumstances, they enhance the public appreciation, understanding or at least tolerance of ideas and expression. Finally, in any consideration of the tools of control, one must acknowledge the role of the critic, the person who can promote the interests of certain creators and institutions and damage the reputations of others.
When considering the restrictive potential of obscenity law, the role of public galleries is an increasingly important one. There have been a number of occasions in Australia where pressure has been brought to bear on institutions that exhibit work that are sexually explicit and which some would characterise as obscene.
Indeed there are numerous ways that censorship can occur: Hiding the offending portions: After complaints, reportedly from some attendants, the gallery refused to exhibit the works.
This consisted of attaching large and obvious black shapes over the sexually explicit portions of the work. After only a few days, the covers were well dog-eared from being continually lifted by members of the public who wished to see what was being so obviously censored.
The censorship was explicit. Cancellation of the show: Sensation was a well-named show. There will be works of art on display in the Sensation exhibition which some people may find distasteful. Parents should exercise their judgement in bringing their children to the exhibition.If nothing else, money, as the element and hinge point of free speech in this matter, affords First Amendment rights and protections to one to the extent of the money that they have.
TOP. Opinion. BRENNAN, J., Opinion of the Court. JUSTICE BRENNAN delivered the opinion of the Court. After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law.
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Stanford Daily, the Court held that the First Amendment does not protect the press and its newsrooms from the issuance of otherwise valid required all broadcasters to devote a reasonable amount of time to the discussion of controversial matters of public interest.
Learn more about freedom of speech and freedom of press by visiting the. The Freedom of Information Foundation of Texas strives to ensure that the public’s business is conducted in public and protects the liberties of free speech and press guaranteed by the First Amendment.
[+]Charles Tilford McCormick Professor of Law, University of Texas Law School. This essay was initially prepared for delivery at a symposium on Interpretation and the Bill of Rights at Williams College on November 4,