The Amendments Series: The First Amendment – Part 1


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There are a couple different topics that come to mind when the First Amendment of the U.S. Constitution is mentioned.

Freedom of the press.

Freedom to assemble or protest.

Freedom of religion.

The First Amendment is one of those commonly used and often abused “rights” that Americans love to reference and throw around. Currently, it’s being used as a shield to protect illegal behavior (riots). But, sometimes Americans love to question its use and argue that there shouldn’t be as much free “speech” or that some speech should be limited or prevented (i.e. “hate speech”).

There’s a lot to unpack from the First Amendment. So, in order to avoid boring you or writing a mini-book, I’m going to break my discussion of the amendment up into three articles. This week I’ll focus on what freedom of “speech” actually means and the challenges associated with that. I’ll next introduce you to the religious reason Madison wanted to include the First Amendment and then I’ll touch a bit more on the challenges of a free press and free speech.

For now, let’s just assess the basics of the First Amendment and what “speech” actually means.


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The Amendment: What It Says

The First Amendment says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.

Let me remind you again. When the founders wrote the Constitution, they wrote a specific list of powers that Congress was given to make law about. So, the founders believed there should never be an issue with Congress passing laws problematic laws. Think about it. There’s no need to specify what someone or government can’t do, if they have a specific list detailing the only and few things they can do.

So, there should have never been an issue with the government passing laws that violated the rights specified in the First Amendment even if the First Amendment never existed.

That being said, the Federalists decided to compromise with the Anti-Federalist and include the Bill of Rights. The First Amendment is the first of ten specific powers that Congress canNOT make laws about.

And just to make things clear. While the Bill of Rights originally only confined Congress, in the landmark case of Gitlow v. New York, the Court decided that freedom of speech and of the press were now among the “fundamental personal rights” protected by the due process clause of the Fourteenth Amendment from infringements by state action. So, now our First Amendment “rights” are not only protected from federal government overreach but also state and local government over reach.

Freedom of the Speech

Freedom of speech is an excellent example of the difficulty the Supreme Court has in making definitive decisions on the meaning of the Constitution. (Again, never really the job of the Supreme Court in the first place, but I digress)


What is speech? That’s the question, right?

Is it confined to someone’s actual verbal language? What about print? Art? Symbols? Clothing? Music? Protests? Marches? Town Halls? Movies? The list can go on and on.

And this ambiguity is where the problem lies, although if the Court simply went by the The Constitution, there would be not problem with ambiguity. The Constitution clearly states that Congress can make no law (not really any wiggle room there) abridging freedom of speech. But, the Court has decided that there are four kinds of speech that can be legally, and Constitutionally, abridged. Thus, the the struggle and ambiguity enters.

  • LIbel (writing that falsely injures another person)

  • Obscenity (not really clear at this point-hardcore porn etc)

  • Symbolic speech (an act that conveys a political message like burning your draft card)

  • Youthful speech (certain kinds of “speech” done by corporations, kids in school, interest groups and the like).

The Courts have defined and redefined these four unprotected forms of speech, but no completely definitive definition has ever been agreed upon. And this is where the complications arise. The government and the Courts are now playing in a grey area. The Constitution clearly says no law and the Court is now saying, yes, some law but how much depends on the kind of speech being abridged. And the game of semantics is now a foot as the Court works to define what speech is and therefore define what speech is protected and not protected.

So far, and for the most part, the Court tends to err on the side of free speech and fewer laws. For instance, in 1969 and in 1977, the Court ruled that KKK and Nazi marches were protected under the First Amendment. The Court stated that the First Amendment protects speech that abstractly advocates violence unless that speech will incite or produce “imminent lawless action”.


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This interpretation of the First Amendment flies in the face of all of the whining today about “hate speech”, which is a good thing.

However, the troubling aspect of their struggling to define speech is this: since the Court has taken upon itself to define libel, obscenity and the like, the Court is operating in the realm of arbitrary power and there really is no Constitutional limit to their power. If the Court can say no to the Constitution here, what is to stop them from starting to define some speech “hate speech”. (Random aside: at this point in our culture, it almost doesn’t matter if the government takes the power to define “hate speech” because society does a good enough job of destroying anyone who says something society considers wrong or racist or prejudice—even if its as simple as someone saying that he does not support anyone disrespecting the U.S. flag)

So, read through this list of some of the most prominent and influential Supreme Court cases regarding free speech. For more details, I high recommend James Q. Wilson’s American government textbook. I am using that a reference for the information below but also for some other detailed information in this article.

Major cases:

  • Schenck v. United States (1919): Speech may be punished if it creates a clear and present danger of illegal acts.

  • Chaplinksy v, New Hampshire (1942): “Fighting words” are not protected by the First Amendment.

  • New York Times v. Sullivan (1964): To libel a public figure, there must be “actual malice”.

  • Tinker v. Des Moines (1969): Public school students may wear armbands to class protesting America’s war in Vietnam when such display does not disrupt class.

  • Miller v. California (1973): Obscenity is defined as appealing to prurient (prurient: marked by or arousing an immoderate or unwholesome interest or desire) interests of an average person.

  • Texas v. Johnson (1989): There may not be a law to ban flag burning.

I haven’t even touched on the freedom of the press yet and won’t in this article.

Freedom to Assemble

This aspect of the First Amendment is particularly salient right now and i won’t even fully unpack it in today’s article as I’m leaving out the religious component for the next article. The freedom to assemble was of upmost importance to the American founders. They wanted to be absolutely sure that Americans never suffer what they suffered under British rule. In other words, Americans should always be able to bring their grievances about the government to someone. They should always have an advocate and they should always be able to assemble themselves for whatever reasons they had, most notably, for religious reasons but also as a means of political speech.


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But, notice Amendment says that Congress may not create a law that inhibits “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

They included the word peaceably with intention. It is essential. There was rampant “assembling” under the Articles of Confederation. In fact, there were many riots and rebellions that had to be quelled during this time, as many former soldiers from the Revolutionary War demanded to be paid, and many Americans decided to take the law into their own hands and expel the country of any former or current British sympathizers.

The founders were very troubled by this and were therefore motivated to create a more powerful central government, one that was equipped to handle such breaches of peace.

So, we must never conflate the right to freely peaceably assemble with the right to riot or rebel. Should such activities happen, the government exists to swiftly and completely shut such activity down. This distinction couldn’t be more relevant today. If you hear someone throw around the FIrst Amendment to justify or excuse the violence of the recent “protests”, swiftly remind them that the First Amendment does not protect all forms of assembling, only the peaceful forms.

Conclusion

The First Amendment protects some of our most fundamental and precious American rights: speech, religion, press and assembly. Protecting these rights is not nearly as straight forward or simple as it may first appear. Protecting them starts first with American citizens. Americans must practically treasure free speech as much as they claim to treasure it. We must be willing to tolerate and allow others to speak their minds. If we do, the courts won’t have any cases to figure out.

Here’s a fact pulled from Wilson’s textbook: In the abstract Americans support free speech, majority rule and the right to circulate petitions, however, in concrete cases, many Americans are not very tolerate of groups they dislike.


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I asked my students one day to tell me if it would be OK for certain groups to hold a meeting at a local town hall. I went through a list various “groups”. When I got to Anti-Transgender or Nazi groups (some student weren’t even open to less controversial groups like religious groups etc), many of the students balked and said no they would not allow those groups to assemble at the town hall. Really, this activity shouldn’t have been needed and should have been so easy for the students. They should have been able to answer without seeing any of the groups. Because, why is there even a question? If you can ban one group, you can ban them all.

The students did have some self-reflection because a minute earlier they’d been agreeing that America is and should have free speech. The problem is, with all of these Court cases muddling definitions, with social pampering, an increased cancel culture and the like, Americans actually think there is an option to say that some group doesn’t have a right to assemble or the right to free speech.

No. The Amendment is clear: no law. That’s it.

Doesn’t matter what we think, feel or whine. It’s the law and anything else is arbitrary power.

This quote from Wilson’s textbook summarizes the point I’m making beautifully: “The ‘majority tolerance’ for many causes should not blind us to the fact that most of us have some group or cause from which we are willing to withhold political liberties—even though we endorse those liberties in the abstract.

The Liberty Belle

James Q. Wilson/John J. DiIulio, Jr./Meena Bose/Matthew S. Levendusky. American Government: Institutions and Policies Enhanced. 16th Edition.

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