Table of Contents
- 1 What is the First Amendment and why is it so important?
- 2 What does the First Amendment protect?
- 3 What isn’t protected by the First Amendment?
- 4 Is the First Amendment under attack in American Universities?
- 5 The First Amendment and the Internet
- 6 Does the First Amendment extend to Facebook and Twitter?
- 7 Does the First Amendment allow businesses to refuse service based on the owner’s religious beliefs?
- 8 Freedom of the Press Under Attack by the President
What is the First Amendment and why is it so important?
“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.”
There it is: the entire text of the First Amendment to the U.S. Constitution. Brief enough to fit in a single (280 character) tweet, it remains the most lauded, yet hotly debated section of our nation’s defining document.
In essence, the First Amendment guarantees U.S. citizens the right to express themselves and worship as they choose, free of government interference. Yet, due to major societal changes over the centuries, and the brevity of the Amendment itself, interpretations of the First Amendment have shifted greatly over the years. Landmark court cases have expanded its protections for types of speech that James Madison, drafter of the original Constitution, and the Founding Fathers, didn’t address over two hundred years ago.Debate over the rights granted by--and limitations of--the First Amendment rage to this day, manifesting themselves in new ways with each passing year. In this guide we’ll briefly cover what the First Amendment does and doesn’t protect, and then discuss some current challenges it faces.?
What does the First Amendment protect?
In its original form, and through subsequent Supreme Court clarifications, the First Amendment grants Americans certain freedoms of expression. Here’s the rundown:
Freedom of Speech. The most fundamental right granted by the First Amendment. Basically, you are allowed to express your opinions and thoughts without worrying about government censorship.
Freedom of the Press. Protects the rights of journalists and publications to distribute information and points-of-view without government interference or censorship.
Free Exercise of Religion. One of the most important issues for the Founders, in light of England’s persecution of religious minority groups. This facet of the First Amendment allows citizens to worship any god, or gods, they choose, in any way they wish, with exceptions in cases where other peoples’ rights could be violated, as in the cases of polygamy and human sacrifice.
Freedom of Assembly. The First Amendment guarantees the right of people to peacefully assemble to express their views, dissatisfaction with political or societal developments, or in support of labor rights. Of course, protests get out of hand, and law enforcement tasked with policing large demonstrations often exceed their powers, rendering this a controversial part of the amendment.
The Right to Petition. Allows citizens to gather signatures and lobby the government for desired changes in the law, or even sue the government, without retaliation. However, the government isn’t actually required to listen, as settled in this 1984 Supreme Court decision.
Political speech. A wide category granting citizens the right to discuss contemporary political issues like taxes, gun rights, abortion, etc. without restriction. However, in recent decades the definition of “political speech” has been interpreted by some to include the money of corporations and wealthy groups used in support of certain political candidates, igniting a debate that reached the Supreme Court in the landmark cases, Citizens United v. FEC. The Court controversially ruled that political spending by corporations and labor unions is a form of protected speech.
Prior restraint. Prior restraint isn’t a right, but rather a type of government restriction on speech and expression--before it has taken place or been published--that the First Amendment protects against. Near vs. Minnesota (1931) was the first case to outline clear restrictions against the practice, yet the most famous case regarding prior restraint is the 1971 Supreme Court ruling permitting the New York Times and Washington Post to publish portions of the Pentagon Papers, a top-secret document detailing the U.S.’s activities during the Vietnam War, overruling then-President Richard Nixon’s attempt to bar them from doing so on the grounds that it would cause "irreparable injury to the defense interests of the United States". This sequence of events was dramatized in the 2017 film, The Post.
What isn’t protected by the First Amendment?
The free speech protections of the First Amendment are broad and far-reaching, though there are some types of speech that it does not protect:
- Defamation. The spread of lies about a person or group that harms their reputation. Defamation falls into two categories: libel, which covers falsehoods in the printed word and media, and slander, a.k.a., spoken defamation. While defamation is a punishable offense not covered by the first amendment in the U.S., many court cases have sought to determine which speech qualifies as such. The general consensus is that a statement must be proven false before the target may proceed with litigation.
Hate Speech. While not prohibited by the First Amendment, certain incidents of hate speech--speech attacking a person or group on the basis of race, gender, sexual orientation, or other attributes--may be unprotected if they instigate violence against others.
True Threats. Communicating violent intent is a criminal act in the United States. Nobody is allowed to threaten to use a deadly weapon, or other means, to harm an individual. With the growing ubiquity of online communication in the past decade, several states have passed laws against cyberbullying, though some have been sued for doing so on First Amendment grounds.
- Intellectual Property and Commercial Speech. This is where free speech runs into copyright law, and the rules get rather complicated. Basically, it’s illegal in most cases to publish or reproduce copyrighted material. A person also waives their First Amendment rights in situations where they legally agree not to speak on certain matters by signing employment contracts or nondisclosure agreements.
Censorship. The landmark 1973 Supreme Court decision Miller vs. California ruled that the sale and distribution of obscene material is not protected by the First Amendment. They set three criteria for determining what is obscene material that essentially describes hardcore pornography.
In the past, presidential administrations and governmental figures have sought to censor certain forms of political speech during periods of anti-communist hysteria, as well as information thought to hamper U.S. military objectives during wartime, but generally, this censorship was objected to by the public and third-party legal groups, without far-reaching implications.
Is the First Amendment under attack in American Universities?
In the past few years, a new controversy over free speech has arisen on university campuses, with speaking engagements of conservative intellectuals being met with heated protests hoping to silence their words.
Last September, conservative radio host and Fox News contributor Ben Shapiro spoke to a crowd at Berkeley College, while outside, riot police attempted to control a crowd of over 1000 that showed up to protest the event.
A similar situation occurred in May 2017, when Charles Murray, the controversial author of The Bell Curve, took the stage at Vermont’s Middlebury College, and was met by chants, and violence outside in the event’s aftermath.
Scheduled speaking events by alt-right provocateur Milo Yiannopoulos at Berkeley and others have been cancelled entirely due to the looming threat of violence that their presence promises to incite.
The heated resistance against conservative speakers and ideas at these liberal campuses that once led the way in the Free Speech Movement has many claiming that the First Amendment is under attack on American universities, while protesters counter that figures like Murray and Shapiro espouse hateful views that aren’t protected by the Constitution.
The furor represents the increasing intolerance Americans have for opposing views and the shift towards political radicalism in the wake of Trump’s presidential victory.
Do these campus protests indicate that the First Amendment is in danger? Echoing the sentiments of many faculty and administration members around the country, Columbia law professor Suzanne Goldberg states, "it is foundational to [our university’s] learning and teaching missions that we allow for the contestation of ideas...This includes expression of ideas that are deeply unpopular, offensive to many in our community, contrary to research-based understandings, and antagonistic to University tenets."
It's too early to tell if this current debate will have a permanent impact on American universities, expanding the definition of what constitutes hate speech, or whether it is a temporary byproduct of a heated political moment.
The First Amendment and the Internet
The explosion of internet use and social media activity has ushered in a new age of collective participation in political and societal debate. The ACLU is dedicated to keeping the web a free-speech zone with full First Amendment protections in the face of perceived parties looking to regulate speech on the internet.
In the case, Reno v. The American Civil Liberties Union, the Supreme Court ruled in favor of the ACLU, deciding that the government has no right to restrict or censor American citizens’ words or content on the web, a major victory for proponents of free speech in our wired age.
However, others argue that the unique anonymity afforded by the internet gives hate groups a shield to hide behind in which to spread white supremacist views and incite violence towards minorities on social media platforms like Twitter and Facebook, and should be policed accordingly.
Finding a balance between honoring First Amendment principles and limiting threatening rhetoric, exploitation, and calls to violence on the internet will be a struggle for years to come.
Does the First Amendment extend to Facebook and Twitter?
As detailed in this Wired piece, the Supreme Court unanimously ruled in the 2010 case, Packingham v. North Carolina, that convicted sex offender Lester Packingham Jr. had the right to use Facebook and other parts of the internet that he was blocked from by his home state due to his 2002 conviction with an underage girl.
In his written opinion, Justice Anthony Kennedy stated, “Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights.”
The decision, despite being in service of a man convicted of an awful crime, was a major victory for those in support of free speech on the internet. While it doesn’t prohibit Facebook from censoring users that violate its terms of service, it does bar government from interfering with the constitutional rights of citizens.
A more recent question for courts to determine is whether Donald Trump, the President of the United States, is allowed to block citizens from viewing his posts on his highly active Twitter feed, or whether doing so violates their First Amendment rights.
In a recent hearing in a Manhattan federal court, the plaintiffs argued that since the President uses his Twitter in an official capacity--announcing hirings, firings, and policy decisions--it is a public forum, and blocking Americans from viewing it is unconstitutional.
In contrast, Michelle Baer, Trump’s attorney, claims that his Twitter use is unaffiliated with the government and he reserves the right to block who he sees fit.
The case has yet to be resolved, but the decision will be a landmark for the regulation how major governmental figures use social media going forward.
Does the First Amendment allow businesses to refuse service based on the owner’s religious beliefs?
A number of pending cases are set to decide if American businesses may refuse service based on the Free Exercise of Religion and Free Speech aspects of the First Amendment, or whether doing so violates discrimination laws.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Charlie Craig and David Mullins argue that owner Jack Philip of Masterpiece Cakeshop’s 2012 refusal to create a cake for their wedding violates Colorado’s public accommodation law. Philips’s defense was that, at the time, same-sex marriage was not yet legal in the state, and that the First Amendment protected his right not to make creative work contradicting his beliefs.
Philips lost the initial lawsuit, and the Supreme Court of Colorado rejected a subsequent appeal. The case was eventually brought to the U.S. Supreme court, which heard oral arguments in December 2017, with the final decision still pending.
The case has gained a lot of attention, with many legal briefs being filed by parties on both sides. University law professor Dale Carpenter argues in the Washington Post that the baker’s refusal is not protected by the Free Speech Clause because cake baking is not historically considered a form of protected speech, and that the mere making of a cake is not inherently an endorsement by the owner of the customers’ lifestyle.
Contrastingly, the U.S. Justice Department issued a brief in support of Philips, stating that anti-discrimination laws do not mandate a business provide a service that they do not agree with.In the past, similar civil suits have decided in favor of the plaintiffs, yet the Supreme Court decision in the Masterpiece Cakeshop case could be a landmark decision, setting the boundaries for future situations when owners refuse service on First Amendment grounds.
Freedom of the Press Under Attack by the President
President Donald Trump’s public attacks on the press present one of the most alarming challenges to the First Amendment in recent times. In his Twitter feed and in speeches, the President has repeatedly attacked media networks and news publications after unflattering stories he claims were untrue.
In December 2017, he opined that NBC News should lose its license for publishing a story that former Secretary of State Rex Tillerson called Trump “a moron” for requesting that the U.S. substantially increase its nuclear weapons stockpile during a meeting with military heads.
The publication of Michael Wolff’s incendiary account of Trump’s first year in office aroused the President’s ire even further, and he lashed out by expressing his desire to toughen up the U.S.’s “very weak” libel laws (despite there being no federal libel law, as libel cases are taken on by states), even sending a cease and desist letter to the author and the book’s publisher.
Trump’s repeated critiques of what he calls the “Fake News Media”, attempts to sue publications, and restriction of access to certain journalists represent an existential threat to the Freedom of the Press clause of the First Amendment.
While the president has no power himself to change the laws, and for now, no publication has has been censored or backed away from publishing stories critical of the administration, Trump’s attacks on the First Amendment create a dangerous precedent that could shift the opinion of his followers towards limiting one of the most principle freedoms of our democracy, having ramifications for years to come.