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
That’s it. That’s the entirety of our Constitution’s First Amendment, the central tenet of our American way of life that gets dragged out every time someone’s banned from Twitter. There’s a lot going on in those few sentences, and it’s important to know when and how it applies to common situations — and, equally as important, when it doesn’t. Let’s look at some common First Amendment arguments, illuminated and debunked by constitutional experts. Read MoreThis is not a First Amendment issue, though plenty of people think it is.This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn’t apply to private organizations, like Twitter and Facebook, so those companies can ban speech the First Amendment would otherwise protect.However, while it’s not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech. Real Life Example
President Donald Trump was suspended from a host of social media platforms, including a permanent ban from Twitter, his preferred mode of communication, for his role in inciting the riot on the US Capitol. Though Trump is expected to lash out at tech companies, it’s not a First Amendment issue because Twitter is a private company.
“So if, say, Twitter decides to ban you, you’d be a bit out of luck,” Nott says. “You can’t make a First Amendment claim in court.”
If you work for a private company, it’s probably not a First Amendment issue. As citizens, employees have the right to express themselves and exercise their First Amendment. But those rights don’t translate to the private workplace, Gutterman says. But just because a private employer has the right to fire someone for something they say doesn’t give them legal carte blanche. Depending on what the fired employee said, the employer could be in violation of the Civil Rights Act, or possibly in violation of contract lawIf you’re a government employee, it’s complicated.Institutions like police departments, public schools and local government branches can’t restrict employee’s free speech rights, but they do need to assure that such speech doesn’t keep the employee from doing their job, Nott says. It’s definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee’s speech in a constitutional manner. Real Life Example
Several companies have fired employees who participated in last week’s attack on the US Capitol, including a man who wore an ID badge for his direct marketing company during the riot and a broker whose employer, a real estate company, condemned her participation in the violence. Private companies can limit employees’ First Amendment rights.
Nott says she’s heard of cases where police officers sued after being fired for saying or writing racist remarks, and courts have ruled in favor of the department. In that case, she says, “being a known racist impacts [the officers’] ability to do their jobs.”
If it’s a private institution, it’s probably not a First Amendment issue. If it’s a public institution, the lines can get blurry. “If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights,” Nott says. That doesn’t mean you can’t put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can’t do so in a way that discriminates against a certain point of view. If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge. “If a speaker were to take legal action for being blocked from speaking, they can’t do it against the students. You can’t take constitutional action against a group of private citizens,” she adds. Such a complaint would have to go against the school, for allowing the constitutional breach to happen.Real Life Example
Two conservative organizations filed a federal lawsuit in 2017 after a speaking event at UC Berkeley featuring Ann Coulter was rescheduled following violent protests and threats. The groups argued the change of venue and time was “repressive” and marginalized conservative views. The school says they acted out of concern for safety.
The question of intent is central to arguments like these. “If they moved her because her life is under threat, that seems pretty viewpoint neutral,” Nott says. “But if a school moves a speaker just to shove them to the side then that is unconstitutional.”
Definitely a First Amendment issue.But, like pretty much everything in law, there are exceptions and nuances. “It’s definitely unconstitutional, unless you are trying to incite people to violence with your speech,” Nott says. Even then, it needs to be a true threat — one that has immediacy and some sort of actual intent. Real Life Example
Protesters who chanted threats against lawmakers on the streets of Washington or in public places were protected by the First Amendment, Gutterman says. Their speech could be considered “political hyperbole” — incendiary, sure, but ultimately not a true threat.
But once they broke into the Capitol, the context changed, Nott says, and their speech may be considered a true threat since they had a “very real chance of encountering the politicians they were threatening.”
Many of the rioters that stormed the Capitol still haven’t been charged or arrested yet, so it remains to be seen whether they’ll claim protection under the First Amendment.
It’s a private company, so it’s not a First Amendment issue. There’s that refrain again: Private companies, like social media sites, can do whatever they want. Users agree to a site’s terms of service when they join. But whether blocking content — even offensive or violent content — is within the spirit of free speech is another issue, Gutterman says. While such sites retain the right to remove content they don’t like, they are also protected by the Communications Decency Act, Section 230. “That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do,” Nott says. This covers things like obscenity, violence and threats.The problem is, this protection often butts up against the enforcement of basic community standards. “Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news,” Nott says. “And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection.”Real Life Example
Twitter removed several of President Trump’s tweets last week reacting to the violence at the US Capitol before it suspended his account. As a private company, it has the power to do that — even to the President of the United States, Gutterman says.
A First Amendment issue — usually. You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated. This is, unless you were doing something unlawful at the time of your arrest.In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention? “That’s tough,” Nott says. “If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it’s not a crime to record police activities in a public space.” What speech isn't covered under the First Amendment?
Obscenity (the definition relies on context, but regular old porn is not considered obscene)Fighting words DefamationChild pornography PerjuryBlackmailIncitement to imminent lawless actionTrue threatsSolicitations to commit crimes Plagiarism of copyrighted material
Source: Freedom Forum
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