
A Intertextualidade Geradora de Sentido
No Gênero Desenho Animado de Núcleo Familiar “Os Simpsons”
Cláudia Regina da Silva Franzão
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in deflecting the Federalist intention to censure such societies. I. Brant, James Madison--Father of the Constitution
1787-1800, 416-20 (1950). ''If we advert to the nature of republican government,'' Madison told the House, ''we shall
find that the censorial power is in the people over the government, and not in the government over the people.'' 4
Annals of Congress 934 (1794). On the other hand, the early Madison, while a member of his county's committee
on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets
during the Revolutionary period. 1 Papers of James Madison 147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds.
1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: ''A
declaration that the federal government will never restrain the presses from printing anything they please, will not
take away the liability of the printers for false facts printed.'' 13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955).
Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free
press clause might read something like: ''The people shall not be deprived or abridged of their right to speak, to
write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of
others or affecting the peace of the confederacy with foreign nations.'' 15 Papers, supra, at 367.
[Footnote 9]
The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who would ''write, print, utter or publish . . . any
false, scandalous and malicious writing or writings against the government of the United States, or either house of
the Congress of the United States, or the President of the United States, with intent to defame the said government,
or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or
disrepute.'' See J. Smith, Freedom's Fetters--The Alien and Sedition Laws and American Civil Liberties (1956).
[Footnote 10]
Id. at 159 et seq.
[Footnote 11]
L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History, ch. 6
(Cambridge, 1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273
-76 (1964). But compare L. Levy,
Emergence of a Free Press (1985), a revised and enlarged edition of Legacy of Suppression, in which Professor
Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel,
in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of
robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of
free expression did not begin to emerge until the debate over the Alien and Sedition Acts.
[Footnote 12]
L. Levy, Jefferson and Civil Liberties--The Darker Side (Cambridge, 1963). Thus President Jefferson
wrote to Governor McKean of Pennsylvania in 1803: ''The federalists having failed in destroying freedom of the
press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and
its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the
press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient
for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would
have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like
persecution; but a selected one.'' 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).
[Footnote 13]
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal doctrinal justification for
the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan
discerned in the controversies over the Sedition Act a crystallization of ''a national awareness of the central meaning
of the First Amendment,'' id. at 273, which is that the ''right of free public discussion of the stewardship of public
officials . . . [is] a fundamental principle of the American form of government.'' Id. at 275. This ''central meaning''
proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of
government. ''Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the
day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the
restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.''
Id. at 276. Madison's Virginia Resolutions of 1798 and his Report in support of them brought together and
expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point
of view that the First Amendment superseded the common law on speech and press, that a free, popular
government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of
James Madison, 341-406 (G. Hunt. ed. 1908).
[Footnote 14]
Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis original). Justice Frankfurter had similar
views in 1951: ''The historic antecedents of the First Amendment preclude the notion that its purpose was to give
unqualified immunity to every expression that touched on matters within the range of political interest. . . . 'The law
is perfectly well settled,' this Court said over fifty years ago, 'that the first ten amendments to the Constitution,
commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply
to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had
from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In
incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which
continued to be recognized as if they had been formally expressed.' That this represents the authentic view of the
Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have