First Amendment Confusion
Issues involving the First Amendment have been in the news often of late. This is, of course, not surprising, because the First Amendment is the basis on which our personal freedoms rest. The five freedoms guaranteed by the First Amendment are: freedom of speech, freedom of the press, freedom to assemble, freedom to petition the government, and freedom of religion. The fact that these five freedoms are stipulated in the FIRST Amendment to the Constitution is indicative of just how important the founding fathers considered these five freedoms to be.
Despite the importance and the relevance of this amendment to so many aspects of our society, it appears that there’s quite a bit of confusion concerning the interpretation of this amendment as well as it’s application to several “hot button” issues facing contemporary America.
Regarding free speech, the First Amendment states that: “Congress shall make no law…abridging the freedom of speech, or the press.” Sounds pretty straight forward, right? Well, apparently, it isn’t. Many young people, and many leftist adults, seem to think that there is an exception to the protection of free speech for what they term “hate speech”, which, they feel, must be restricted. One can see immediately that such an exception would hinge upon what CONSTITUTES “hate speech”. Most observers would agree that determining what is and isn’t “hate speech” (such that it would pass legal standards) would be a very thorny problem, indeed. In practical terms however, hate speech is defined by these groups to be pretty much what ever they disagree with. Conflicts along these lines could, I imagine, clog our judicial system for decades.
Not to worry, however. In America, the First Amendment does NOT describe ANY exception to allow the limitation or prosecution of “hate speech.” The letter and spirit of the First Amendment are quite clear.
American case law has generally followed the spirit of the First Amendment, but is a bit more complicated. COMMON SENSE restrictions DO apply, and these have been upheld in case law. As the great Supreme Court jurist, Oliver Wendell Holmes pointed out (in Schenck vs. the United States): “The most stringent protection of free speech would not protect a man in falsely shouting ‘fire!’ in a theater and causing a panic”.
In the same case (Schenck vs. the United States) the Supreme Court affirmed the legality of restricting free speech that attempts to induce “insubordination, disloyalty, mutiny or refusal of duty in the military” as these actions might result in a “clear and present danger” to the United States.
Lastly, vulgar or obscene speech in the public square is restricted in the penal code, as well.
Aside from obscenity, sedition or the deliberate incitement of harm, the closest US case law comes to restricting the CONTENT of speech is the Supreme Court, in Chaplinski vs. New Hampshire, where it prohibits speech IMMEDIATELY inciting chaos or riot.
Other than these “well defined and narrowly limited” cases, the United States’ Bill of Rights and subsequent case law provide for NO limitation or abridgment of so called “hate speech”. People may find certain speech (or print) objectionable or even repugnant, but they have NO legal grounds (in the United States) to expect arrest or prosecution.
Now, on the other side of this coin, there appears also to be confusion as to what protections a person exercising his right to free speech has. Once again, young people, and leftist adults, seem to believe that the First Amendment allows a person to exercise his or her right to free speech without fear of repercussions or recriminations of any sort from any quarter. This impression is also INCORRECT. What the First Amendment says, is that the GOVERNMENT can’t make laws restricting your right to free speech. In other words, you can’t be arrested for it. It does NOT mean, however, that you can’t be fired for it, have your membership in an organization rescinded for it, or find yourself excluded from a given group or organization for it. In the PRIVATE sector, a manager may decide that so-and-so’s opinions are offensive or detrimental to the group and may, in fact, terminate the employee as a consequence. To reference a recent “hot button” issue, it would be LEGAL for a football team owner to fire a player for disrespecting the National Anthem, for example. Yes, it is the player’s RIGHT to protest, but only in the sense that the government can’t come and arrest him. His employer can, if he chooses, fire him. He can’t fire the player on the basis of sex, color or religion, but he CAN do so for disruptive or unacceptable speech.
Thanks to Robert Spencer, in The Infidel’s Guide To Free Speech (And Its Enemies), for citing the relevant case law.