Freedom of Speech ≠ Consequence Free Speech

It seems that many people don’t understand the actual protections of the 1st Amendment to our nation’s Constitution as it is outlined in the Bill Of Rights.

 

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’s really a lot there, so let’s break it down by specific clause.

First there is the Establishment Clause.

Essentially, this clause prevents the government from establishing laws and regulations that advance any one religion to a higher status than another or enforces religious doctrine upon people who do not practice that religion.

In 1971, the Supreme Court surveyed its previous Establishment Clause cases and identified three factors that identify when a government practice violates the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion.” Lemon v. Kurtzman (1971).

More broadly, the Establishment Clause provides a legal framework for resolving disagreements about the public role of religion in our increasingly pluralistic republic.

In an excellent piece on the purpose of the establishment clause to prevent religious tyranny, Marci A. Hamilton writes:

 

The “separation of church and state” does not mean that there is an impermeable wall between the two, but rather that the Framers fundamentally understood that the union of power between church and state would lead inevitably to tyranny.

 

And Michael McConnell writes that the establishment clause is the co-guarantor of Religious Freedom.

 

The establishment of religion was bad for liberty and it was bad for religion, too. It was opposed by a coalition of the most fervently evangelical religious sects in America (especially the Baptists), who thought the hand of government was poisonous to genuine religion, joined by the enlightenment and often deist elite (like Thomas Jefferson and Benjamin Franklin), who thought church and state should be separate, and by the leadership of minority religions, who worried that government involvement would disadvantage them. Accordingly, there was virtually no opposition to abolishing establishment of religion at the national level.

 

All of this brings us to the Free Exercise Clause of the 1st Amendment.

This has been a hotly debated topic both in and out of the court system of our nation, and one that continues extensively to this day.

Although the original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3), the Free Exercise Clause was added as part of the First Amendment in 1791. In drafting the Clause, Congress considered several formulations, but ultimately settled on protecting the “free exercise of religion.” This phrase makes plain the protection of actions as well as beliefs, but only those in some way connected to religion.  

 

From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or “exempted” from laws that interfere with their religious practices, and the interests of society reflected in those very laws. Early state court decisions went both ways on this central question.

 

Francis Gedicks writes that Religious Liberty is Equal Liberty.

 

Only a few years before the First Amendment was ratified, James Madison wrote that all people naturally retain “equal title to the free exercise of Religion according to the dictates of conscience” without the government’s “subjecting some to peculiar burdens” or “granting to others peculiar exemptions.” A Memorial and Remonstrance against Religious Assessments (1785). As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate “religious exemptions” that would excuse believers from complying with neutral and general laws that constrain the rest of society.

 

In the creation of laws with any religious impact the government must walk a very fine line.

 

The vast range of religious beliefs and practices in the United States means that there is a potential religious objector to almost any law the government might enact. If religious objectors were presumptively entitled to exemption from any burdensome law, religious exemptions would threaten to swallow the rule of law, which presupposes its equal application to everyone.

 

Again, Michael McConnell expresses the fact that the Free Exercise clause provides a Vital Protection For Diversity and Freedom.

 

Today we have a patchwork of rules. When the federal government is involved, legislation called the Religious Freedom Restoration Act grants us the right to seek appropriate accommodation when our religious practices conflict with government policy. About half the states have similar rules, and a similar rule protects prisoners like the Muslim prisoner who recently won the right to wear a half-inch beard in accordance with Islamic law, by a 9-0 vote in the Supreme Court. Holt v. Hobbs (2015).

 

By combining these clauses we can come to the conclusion that you have the right to practice your religion as long as doing so does not infringe upon the Constitutional rights of others with different beliefs or create an undo burden upon them, and the Government has no right to create laws that elevate the status of one set of religious beliefs over another.

Next we have the clause establishing both Freedom of Speech and Freedom of the Press.

It was very important to our founders that the people be free to speak out against their government’s inappropriate actions, policies and laws, and important that the government not control the press to prevent important information from reaching out citizenry.

But many people seem to believe that this extends to the misled belief that “everyone is entitled to their opinion” and no one else has the right to argue with, or speak out against, the expression of opinions that are grounded in well disproved data, racial or religious hatred,  or just plain willful ignorance.

So, to be perfectly clear:

Freedom of Speech is not equal to Consequence Free Speech

The 1st Amendment protects you from governmental persecution, prosecution, incarceration, or execution in order to silence your message.

It does not guarantee you a platform from which to speak.   You are not entitled to have your words mass distributed by a social media or news outlet.   You are not entitled to a microphone or news camera to extend the reach of your words.   You cannot force people to listen to your message.

It does not prevent an employer from terminating your employment if they do not want to have their business or professional reputation associated with the opinions and words you are expressing.

It does not protect you from public ridicule, ostracization, or rebuttal in response to the words and opinions you express.

There are some circumstances in which the government can restrict your Freedom of Speech rights though:

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

 

1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:

 

a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).

 

b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).

 

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).

 

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.

 

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).

g. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).

 

Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

 

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education (1968).

 

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).

 

Geoffrey R. Stone discusses the need to fix the conflation of money as speech in our political process.

In a series of five-to-four decisions, the Supreme Court has overruled McConnell and held unconstitutional most governmental efforts to regulate political expenditures and contributions. Citizens United v. Federal Election Commission (2010); McCutcheon v. Federal Election Commission (2014). As a result of these more recent decisions, almost all government efforts to limit the impact of money in the political process have been held unconstitutional, with the consequence that corporations and wealthy individuals now have an enormous impact on American politics.

 

Those who object to these decisions maintain that regulations of political expenditures and contributions are content-neutral restrictions of speech that should be upheld as long as the government has a sufficiently important justification. They argue that the need to prevent what they see as the corruption and distortion of American politics caused by the excessive influence of a handful of very wealthy individuals and corporations is a sufficiently important government interest to justify limits on the amount that those individuals and corporations should be permitted to spend in the electoral process.

 

Because these recent cases have all been five-to-four decisions, it remains to be seen whether a differently constituted set of justices in the future will adhere to the current approach, or whether they will ultimately overrule or at least narrowly construe those decisions. In many ways, this is the most fundamental First Amendment question that will confront the Supreme Court and the nation in the years to come.

 

In response to this conflation, the people themselves have very few options available to help overcome the power of corporate money attempting to suppress their voices in the issues of import in our political discourse and legislative processes, which leads us to the clause establishing the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protecting two distinct rights: assembly and petition.

Our entire nation was founded through assembly and protest after the peoples’ petitions to address their grievances were ignored.   These rights have remained a fundamental tool for the people of our nation to force the leaders of our states and nation to address the needs and concerns of the populace.

John Inazu and Burt Newborne inform us that:

The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision, De Jonge v. Oregon, it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”

 

The right to petition plays an important role in American history. The Declaration of Independence justified the American Revolution by noting that King George III had repeatedly ignored petitions for redress of the colonists’ grievances. Legislatures in the Revolutionary period and long into the nineteenth century deemed themselves duty-bound to consider and respond to petitions, which could be filed not only by eligible voters but also by women, slaves, and aliens. John Quincy Adams, after being defeated for a second term as President, was elected to the House of Representatives where he provoked a near riot on the House floor by presenting petitions from slaves seeking their freedom. The House leadership responded by imposing a “gag rule” limiting petitions, which was repudiated as unconstitutional by the House in 1844.

 

John Inazu goes on to warn us how governments currently hinder the right to petition, assemble, and protest by restricting the actions that lead up to them.

 

The First Amendment refers to the right of the people “to assemble.” That wording suggests a momentary gathering, like a protest or parade. But the verb “assemble” presupposes a noun—an assembly. And while some assemblies occur spontaneously, most do not. People usually need to form a group or association of some kind before they assemble in public. Those formative experiences include building relationships, developing ideas, and forming social bonds—activities that ought to be protected from unwarranted government interference. Just as government can effectively eliminate the free speech right by imposing a prior restraint before speech manifests, it can effectively eliminate the assembly right by restricting a group or association before it assembles in public.

 

The Supreme Court has attempted to address these other interests by recognizing a “right of association” that does not appear in the text of the Constitution. The Court initially linked this right to the First Amendment rights of speech and assembly. Over time, however, courts and scholars neglected the assembly roots of the right of association and focused increasingly on speech and expression.

 

Finally, Burt Newborne reminds us all that:

 

The forty-five words of the First Amendment list six necessary ingredients for democratic self-government: the Establishment Clause (freedom from religion); the Free Exercise Clause (freedom of religion); the Free Speech Clause (freedom to speak your mind); the Free Press Clause (freedom to use technology to transmit speech to a larger audience); Freedom of Assembly (freedom to join with others to advance an idea); and the right to Petition Government for Redress of Grievances (freedom to present arguments to the government).

 

The careful order of the six ideas replicates the life-cycle of a democratic idea: born in a free mind protected by the two Religion Clauses (which are viewed today by the Supreme Court as protecting secular as well as religious conscience); communicated to the public by a free speaker; disseminated to a mass audience by a free press; collectively advanced by freely assembled persons; and presented to the government for adoption pursuant to petition. No other rights-bearing document in our history lists the foundational ideas of conscience, speech, press, assembly and petition in one place, much less in the careful order imposed by the Founders.

 

So, you can be as mad as you want about protests such as those demonstrated by people choosing to take a knee during the performance of the National Anthem as they attempt to bring awareness to the issue of nationwide instances of police brutality.  You can petition their companies to reprimand or remove them, but you cannot create a law that prevents.  Especially when the form of protest is peaceful, does not impede anyone else from participating as they see fit, and causes no harm to any one else in our nation.

The same holds true for those of non-Christians who prefer to sit instead of participate in the modern version of the Pledge of Allegiance due to the fairly recent insertion of the words “under God.”

While they make their protests, they must be aware of the backlash of public opinion, the possibility of termination of their employment or any business deals like corporate sponsorship that they may have, or other consequences not imposed by the Government itself.

As much as I may despise the message of the folks from organizations such as the Westboro Baptist Church or the racial and religious hate spewed by Donald Trump as he campaigns for President, they have the right to say what they want, even though I believe a case could be made that it qualifies as able to be restricted under the definitions of “low speech” presented above.

While they have the right to speak, they do not have the right to have the views they express remain unchallenged.

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