Con Law for Dummies: The First Amendment, Part 1: What is the First Amendment?

Whether it’s NFL players kneeling or white supremacists marching, it seems that the First Amendment is taking center stage in much our of current discourse. And every time someone says or does something controversial, the social media arguments begin with everyone playing the role of constitutional scholar, whether they’ve ever studied the Constitution or not. How do you respond to your uncle saying Facebook is violating Alex Jones’ rights? What about your liberal friend who says “hate speech” isn’t legal? The answer to these questions (and more!) is what I will be aiming to address in this series. For this installment, I just want to start with the basics: what is the First Amendment?

Before we even get there, let’s talk about the Constitution broadly. The United States Constitution was penned after the Revolutionary War to unite the states and create a federal structure to prevent the country from collapsing. The original Constitution lays out things like: what are the three branches of government, what are their powers, how the states and the federal government interact, and how the Constitution can be amended. It did not contain any enumeration of rights (a “bill of rights”) in the beginning — leading some to oppose its ratification (ratification is a fancy way of saying approved by a sufficient majority of the states). Early citizens of the U.S. had just broken free of a tyrannical government and some feared that without specifically laying out certain protections, the United States was headed toward a federal government no different from the king they’d just fought to leave. Proponents of the document basically had to promise they’d later add a bill of rights to get the support they needed for ratification. The Constitution was signed September 17, 1787 and then ratified by the states.

James Madison was originally against the idea of adding a bill of rights, believing that the government was already limited to the powers specifically granted it by the Constitution. However, he was eventually persuaded of the value of specifically enumerated rights in the Constitution. On June 8, 1789, James Madison introduced the bill of rights to Congress. The bill originally contained 17 amendments. Through the legislative process, these 17 were pared down to 12 and by December 15, 1791–10 of the amendments were ratified, giving us the Bill of Rights we know today. Amendments 11–27 came at later times and I won’t be discussing them here.

[As a quick aside, I will mention that one of my pet peeves is the phrase “constitutional rights.” This is simply because, due to my personal view of the Constitution, I find this phrase to be imprecise. The Constitution is not the origin of our rights, rather it enumerates the natural rights we have as persons upon which the government cannot tread. I personally prefer “constitutionally-protected rights” or “constitutionally-enumerated rights.” I’m sure there are many who would disagree with this take, but this is my personal approach.]

I’m sure most are very familiar with certain amendments and generally what they do. The First protects speech, the Second the right to bear arms, the Fifth is that thing you plead in court. But what about the Third? The Seventh? Or, one of my personal favorites — the Ninth? For the sake of information, here is a brief run down of each of the ten (note: these are extremely basic/simplified as case law gives most of these an incredible amount of nuance and a number of exceptions):

First Amendment: protects the rights to speech, religion, assembly, press, petition, and association.

Second Amendment: recognizes a right to bear arms.

Third Amendment: you don’t have to keep soldiers in your house if you don’t want to (spoiler alert: this hasn’t really come up much).

Fourth Amendment: the government can’t search your home, property, or person without either your consent or probable cause to believe you have committed a crime and a warrant that specifies what the government is looking for and where it can be found.

Fifth Amendment: you cannot be forced to testify against yourself in a criminal case. Also, if you are charged with a crime, the government has to give you “due process” (this would require a whole separate blog to explain — but basically you have to be given a fair criminal proceeding to determine your innocence or guilt.) It also protects against “double jeopardy” — being charged for the same crime twice.

Sixth Amendment: You have a right to a speedy and public trial in front of a jury of your peers, to an attorney in a criminal case, to be informed of what you are being charged with, and to confront the witnesses who are testifying against you.

Seventh Amendment: In lawsuits seeking more than $20, there is a right to a jury trial. (Note: This is an amendment that has not been “incorporated” which means states don’t have to follow it (yet) — so it only applies to lawsuits filed in federal court. More on incorporation doctrine some day in a why-the-14th-amendment-is-arguably-the-most-important blog!)

Eighth Amendment: the government may not issue bail or fines that are excessive. Also, punishment for crimes cannot be “cruel and unusual.”

Ninth Amendment: Just because a right doesn’t appear in the Constitution doesn’t mean it doesn’t exist!

Tenth Amendment: the powers that are not granted to the federal government by the Constitution are reserved for the States. Or, as fans of the Tenth like to put it: “States’ rights! States’ rights!”

Ok, now that we’ve gotten the big picture, let’s get back to the First Amendment. Here is what it actually 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.

“Hey,” you might be saying, “I thought you said it also gave the right of something called ‘association.’” Yes, yes it does. Even though the word “association” isn’t mentioned in the text, it is one of those rights that the courts have found exists and is implied by the other rights. You can “associate” with a religion, you can “associate” with a group through assembly or speech, etc. Since a case called Marbury v. Madison, the Supreme Court of the United States gets to decide what the Constitution is and what it says. That’s why simply reading the text of an amendment is incredibly insufficient to understand what it means and what it does. True constitutional scholarship requires study of Supreme Court decisions — something most non-lawyers simply don’t have the time or training for.

The first thing that is really, really important to understand about our constitutionally-protected rights is this: the Constitution protects you from the government. Period. It does not protect you from being banned by Facebook. It does not protect you from being fired by the TV network that produces and broadcasts your show. Simply, the government cannot arrest you or fine you for exercising your rights — private actors can do basically anything they want in response to you. The First Amendment does not protect from the potential fallout of saying something really offensive or stupid so, you still need to think before you speak.

The second thing that is also really, really important to understand is that constitutionally-protected rights, including speech rights, are not absolute. There are many exceptions to free speech, including:

1) fighting words;

2) incitement to imminent lawless action;

3) defamation;

4) obscenity;

5) true threats;

6) perjury;

7) blackmail;

8) solicitation to commit crimes;

9) child pornography

Numbers 6–9 are pretty self-explanatory so, in later installments, I will be focusing only on 1–5. Anyone notice that “hate speech” isn’t included? Unless, that “hate speech” also amounts to fighting words, incitement, defamation, or true threats — no dice!

While these seem like a lot of exceptions, I must emphasize that the legal definition of these things is extremely narrow. You might think you have an idea of what obscenity is but trust me, in the context of First Amendment jurisprudence; it is not what you think it is.

It is also important to note that states also have their own constitutions. State constitutions cannot provide fewer rights than guaranteed by the Federal Constitution. For example, the Federal Constitution protects the right to free speech. So, a State can’t pass an amendment to its constitution that says “you don’t have a right to free speech.” States can, however, decide to provide additional rights or protections under their constitutions. For example, Tennessee recognizes a right to “abolish the government” (Art. I, Sect. 1) and guarantees a public education system (Art. XI, Sect. 12). So, if you find yourself subject to prosecution by your state for exercising some right — check state law, too!

I think that is enough for the first installment. Next time we’ll discuss what speech is. Is it just words? Is it actions? Is it art? Come back to find out.