November 16th, 2009 by Darin Robbins

The Bill Of Rights, especially the first amendment, requires interpretation and analysis not in order to create new legal meaning but to discover the original meaning of the text in synchronization with a changing world.

It can be argued that the first amendment of the Bill Of Rights is the most important amendment. Certainly, it is one of the most argued over in all periods of American history. This continuing debate itself is a sign of good health in a democracy. In putting into practice the right to free speech, right to assemble peacefully, freedom from and for religion, and to petition the government one finds that courts have tried to look into original intent. This means finding the mentality of the founders, which requires inspection of the actual wording of the amendment. As text, it is a trace that presents the absence of speech first and foremost. This absence points to the use of text to convey meaning beyond long distances and spans of time. But the text, as being the final word of authority, is actually a continual recitation of a limited meaning since there can not be elaboration from the isolated inscribed words. More can not be said by looking at the finite words as they are detached from the original utterance.

Therefore, any interpretation is the creation of more legal text and not a revelation of pristine original truth. There is no legal purity, but inscription upon inscription both on paper and in the mentality of citizens. A possible starting point is that the first amendment must not allow what is illegal in other parts of the Constitution. The criminal intent of a certain speech act is not protected speech. One then has a chain of connection of what can be the cause of this criminal act that stretches out from the actual incident. There is incitement to commit a criminal act, which is the speech act that orders such illegality. The advocacy of a crime is next, where it is suggested that such an act be committed. The discussion to advocate or incite a crime is what follows, and is more abstracted than the criminal act. Conspiracy is to plan to discuss the advocacy or incitement of crime. By this time one would have reached association, which means to be in a group that plans to discuss the suggestion or ordering of a criminal act without actually making exact plans. Knowledge of such an association that plans or conspires to discuss such a suggestion or order does not require membership in the group that is in this undertaking. Rather than the actual relevancy to the criminal act, we see a slippery chain of connection that has each part sidling closer or farther away from the real life crime. There is no direct link of each act, with the exception of incitement, to a criminal act. All must filter through to incitement itself, which is an order that is not only clear in its intention but forceful in its expression. The power of each resides in the proximity of one link to another rather than actual circumstances, since there is not any mediation through real acts that would make association or knowledge an important lead to criminal acts not protected by free speech.

In the real world, these links may be simultaneous but in the protracted study of legality they follow a linear chain reaction that is as real as the actual circumstances that lead to the crime. Any practical approach, as demanded by real world situations, can only look to incitement as being more than a one-step link to crime. It can be the only illegal speech, often posed as “yelling fire in a theatre”. The law is more than real events, however. It is a continuation of interpretation that creates a parallel reality to the reality that crime occurs in. The further judgements of an interpretation in the courts are an inscribing without revealing, since any new text can not reveal but cover over in its attempt to open up the ability to know the original law. The text of legal interpretation is a creation of past and future in terms of sensibility. With each new addition, by way of new traces of legal code, a continuity of law is constructed that would give validity to specific enforcement or change of law in a democracy. They are additions that attempt to restate what is the original intent, but instead create a current legal position set within a recurring present time, with its own ready-made heritage and vision.

Hate speech falls within the incitement link. Hate speech is known not by itself but by its various deferring and differentiation. In other words, the action of crime especially towards people based on race, gender, sexual orientation, and ethnicity defines what kind of speech came before it. Incitement in this perspective does not exist without the act, which in itself is not speech. The two do not exist without each other, and can not be within the area of illegality without the new inscriptions of legal code based upon tracing over the original legal statement. The displacement of legal language occurs in finding the displacing legal definitions of actual incidents. The text carries the whole reality of legal or illegal definitions by its inscription that hides the original text by trying to find original intent.

The only relic, which still evades finding the intention of the founders, is the network of one amendment in collusion with others and the integrity of the entire work. The Bill Of Rights have to be accepted as a whole, and it is next to impossible to repeal any one amendment of the whole because of their unity as one body of legal code. The only thing one discovers is another connective tissue that is outside time, each part of the connection a subject to be inscribed over by a series of parallel interpretations. Each amendment will follow the same process as the first amendment in being subjected to interpretation that hides when it reveals. This entire process of hiding and revelation through text maintains a balance between eternal universal law and historical particular organizations of a democratic society. Without a universal aspect, the particular expression of law loses legitimacy, but social conditions change and require internal transformations of the law in order to evolve and adapt. The expression of the Bill Of Rights throughout American history has been an example of such a balance.