One of the most misunderstood “rights” in America is our First Amendment protection…what does it really mean?
Hello and thank you for stopping by. I am going to discuss the 1st Amendment to the Constitution.
The First Amendment is often referred to for freedom of speech, religion, the right protest, and even freedom of the press. Those assumptions are not entirely inaccurate, however, there is much more to it than the blanket approvals many people assume it represents. Since the United States is a country governed by the rule of law, it is important to understand the Constitution at a greater depth.
To start my discussion, let me offer you the exact language, as the amendment was originally written and ratified: “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.” – (complete text can be found here)
Before I get too far into this discussion, there are some important things I want to emphasize. First, the First Amendment was put into place as a protection to the people…not as a means to subvert other laws. In other words, although someone is protected under one law, doesn’t mean they are exempt from negligence or harm they cause (or could potentially cause). Way too many people use the first amendment as a shield – if you act within the scope of your protected “rights”, but cause harm to someone else, or infringe upon their rights or personal freedoms, you are accountable and can face civil and criminal charges for your intentions, perceived intentions, and/or your negligence – and, your ignorance in that respect does not guarantee your innocence.
It is also important to understand that the laws in the United States are not black and white in many cases. Much of our laws (and accountability to those laws) is based upon interpretations made by the courts – or, case law. In short this means that judges often refer to previously decided cases to ensure both judicial economy and continuity.
During my discussion on the First Amendment, I will cover some of the important case law as well – this will hopefully help explain things a bit more thoroughly.
I am going to start with the first part which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Taking the most basic approach to the “freedom of religion” protection, when considering the First Amendment, we can see that the primary purpose is to keep the federal government from becoming excessively involved in Americans’ religious affairs – and, more or less, attempts to prevent the government from establishing a “national” religion – additionally, it keeps the government from favoring one religion over another. Freedom of religion goes a bit deeper, as far as the law is concerned, and with the ratification of the Fourteenth Amendment, state governments were umbrella’d into these restrictions – I will not get into the details of the Fourteenth Amendment in this post (you can find more information here if you wish to investigate further for yourself.)
The other part, concerning “the free exercise” of religion is not so absolute. The Supreme Court ruled in Reynolds v. United States (1879) that “...laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” This case revolved around the issue of polygamy…a religious practice which goes against federal law…the court upheld the criminal charges being contested by the defendant in the case – a similar opinion was offered in the case of Davis v. Beason (1890). The court reasoned that allowing religious practices that broke federal laws would set a precedent that would open the door to other practices such as human sacrifice and other extremes.
*It is important to note that in the case of animal sacrifices for religious purposes, the Supreme Court has upheld those rights using the First Amendment as a means of protection – see cases: Church of the Lukumi Babalu Aye v. City of Hialeah (1993) and Jose Merced, President Templo Yoruba Omo Orisha Texas, Inc., v. City of Euless (2009) – with Justice Anthony Kennedy stating in the decision, “religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection”.
There are many other issues related to religion – such as religion in schools, religion at work, prayer in school, the pledge of allegiance, and so forth…I am only going to discuss the basic protections of the First Amendment in this post.
The next part of the First Amendment reads “…or abridging the freedom of speech, or of the press…” This is probably one of the most misunderstood protections of the First Amendment.
Quite often, people with the most derogatory and defamatory things to say, use the First Amendment as a shield against liability on their part. Even though, we, as Americans, are free to voice our opinions, we do not have blanket approval to cause harm to others, nor do we have blanket approval to use our voice to spread false statements or rumors without consequence. We may be free to speak our mind, but if in so doing we infringe upon others freedoms and protections – even without intention, which is known as negligence – we remain accountable both civilly and criminally depending on the harm caused. In other words, I am free to publish a story about someone, or a business, and, I am free to say whatever I want to say in that regard; however, if, as a result of my words, that person (or, those people), or that business suffers harm, directly, or indirectly, I may be liable for damages, or even criminal charges.
To simply things more, the Courts have laid out some exclusions to free speech: Defamation, invasion of privacy, obscenity, copyright (or trademark) violations, inciting riots, inciting others to break the law, threats, inciting violence, endangering national security, false advertising, and, in certain cases, speech that causes obstruction or disrupts others lawful activities.
Here are some cases which better exemplify the scope of this protection under the law: Debs v. United States (1919) – Eugene V. Debs was an American labor and political leader and Socialist Party of America candidate for the American Presidency. On June 16, 1918 he made an anti-war speech in Canton, Ohio, protesting US involvement in World War I. He was arrested under the Espionage Act of 1917 and convicted – he sentenced to serve ten years in prison and to be disenfranchised for life. The case against him was based on a document entitled Anti-War Proclamation and Program, which showed that his original intent was to openly protest the war. The argument of the Federal Government was that he was attempting to arouse mutiny and treason by preventing the drafting of soldiers into the United States Army. This type of speech was outlawed in the United States with the Espionage Act of 1917.
The New York Times v. Sullivan (1964): In order to protect “uninhibited, robust, and wide-open” debate on public issues, the Supreme Court held that no public official may recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice‘ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court stated that the First and Fourteenth Amendments require that critics of official conduct have the “fair equivalent” to the immunity protection given to a public official when he is sued for defamatory speech uttered in the course of his duties.
Gertz v. Robert Welch, Inc. (1974): The Court applied the rule in the New York Times case to public figures, finding that persons who have special prominence in society by virtue of their fame or notoriety, even if they are not public officials, must prove “actual malice” when alleging libel. Gertz was a prominent lawyer who alleged that a leaflet defamed him.
FCC V. Pacifica Foundation (1978): In a case that considered the First Amendment protections extended to a radio station’s daytime broadcast of comedian George Carlin’s “Seven Filthy Words” monologue, the Supreme Court held that Section 326 of the Communications Act, which prohibits the FCC from censoring broadcasts over radio or television, does not limit the FCC’s authority to sanction radio or television stations broadcasting material that is obscene, indecent, or profane. Though the censorship ban under Section 326 precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. In its decision, the Court concluded that broadcast materials have limited First Amendment protection because of the uniquely pervasive presence that radio and television occupy in the lives of people, and the unique ability of children to access radio and television broadcasts.
American Library Association v. U.S. Department of Justice and Reno v. American Civil Liberties Union (1997): In a unanimous decision, the U.S. Supreme Court on June 26, 1997, declared unconstitutional a federal law making it a crime to send or display indecent material on line in a way available to minors. The decision in the consolidated cases completed a successful challenge to the so-called Communications Decency Act by the Citizens Internet Empowerment Coalition, in which the American Library Association and the Freedom to Read Foundation played leading roles. The Court held that speech on the Internet is entitled to the highest level of First Amendment protection, similar to the protection the Court gives to books and newspapers.
I will move on to the Freedom of the Press. As most of you are aware, the media has evolved into more of an entertainment venue, rather than an actual journalistic press corp. Much of the mainstream media provides stories that are misleading, inciting, and in some cases completely fabricated. For the most part, the media remains protected by the First Amendment, since courts generally look for “intent” or actual “malice” – which is very difficult to prove.
As an example, you can look at the popular case of Hustler v. Falwell (1988). In this case, Hustler (an adult magazine) published a story about a prominent minister…I won’t detail the published article, but Falwell sued for libel, invasion of privacy, and intentional infliction of emotional distress – the court ruled in favor of Falwell, but the appeal resulted in a reversal of that decision, stating that Falwell failed to prove that the offending publication contained a false statement of fact which was made with “actual malice.” The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state’s interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.
Another important case to consider is Milkovich v. Lorain Journal Co. (1990). I won’t get into all the details, but I will summarize the court’s decisions for you. First, the court declined to even hear the case twice before finally accepting it in an effort to “clarify once and for all the extent to which opinions could be expressed without fear of being held libelous“. The Supreme Court ultimately rejected the argument that a separate opinion privilege existed against libel. After recounting the case history and the court’s recent rulings in libel cases, Chief Justice Rehnquist wrote for the majority that the statement from [a previous case, Gertz v. Robert Welch] was not “intended to create a wholesale defamation exemption for anything that might be labeled ‘opinion'” since “expressions of ‘opinion’ may often imply an assertion of objective fact.” The published material in question strongly suggested that Milkovich perjured himself and was not couched hyperbolically, figuratively or in any other way that would mean the writer didn’t seriously mean it. And since that statement could easily be found true or false by comparing Milkovich’s statements at the initial hearing with his court testimony (which the column did not do), it was moot whether it was intended as opinion or not since it asserted a matter of objective fact. “The connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false,” the Court concluded.
The last part of the First Amendment is “…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
I found this article on loc.gov.
The First Amendment to the United States Constitution prohibits the United States Congress from enacting legislation that would abridge the right of the people to assemble peaceably, and the Fourteenth Amendment makes this prohibition applicable to state governments.
The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly. The right to assemble is not, however, absolute. Government officials cannot simply prohibit a public assembly at their own discretion, but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met. Time, place, and manner restrictions are permissible so long as they “are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.”
Such time, place, and manner restrictions can take the form of requirements to obtain a permit for an assembly. The Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance. The government can also make special regulations that impose additional requirements for assemblies that take place near major public events.
In the United States, the organizer of a public assembly must typically apply for and obtain a permit in advance from the local police department or other local governmental body. Applications for permits usually require, at a minimum, information about the specific date, time, and location of the proposed assembly, and may require a great deal more information. Localities can, within the boundaries established by Supreme Court decisions interpreting the First Amendment right to assemble peaceably, impose additional requirements for permit applications, such as information about the organizer of the assembly and specific details about how the assembly is to be conducted.
The First Amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order. Statutes that prohibit people from assembling and using force or violence to accomplish unlawful purposes are permissible under the First Amendment.
*Cited from: (https://www.loc.gov/law/help/peaceful-assembly/us.php)
After reviewing all the case law, and opinions provided by the various courts, I find it hard to believe that organizations such as ANTIFA are still seeking protection under the First Amendment…well, I actually don’t find it hard to believe, since I consider that particular group a terrorist organization. I won’t glorify them further by detailing their cowardly rituals and violent uprisings.
The last part of the First Amendment states “…petition the Government for a redress of grievances.” I don’t think this requires much explanation, but it basically protects our right to make complaints to, or seek assistance from the government without being punished.