The First Amendment is one of the most critical and often misunderstood amendments to the U.S. Constitution. Controversies over the First Amendment protections of free speech and a free press are rampant today. In particular, the section of the Amendment that states: “Congress shall make no law abridging the freedom of speech, or of the press” (U.S. Constitution, 1791, Amendment I) is currently the subject of many popular myths. Some pertinent facts concerning these myths remain less known or misunderstood.
Although there are many myths about what the First Amendment says about free speech and a free press, four prominent myths are currently impacting modern discourse in the U.S.
The first myth is the idea that no one can violate your First Amendment rights to free speech. In reality, the First Amendment right to free speech or free press usually only applies when the government is trying to impact these rights negatively. Private businesses or organizations can limit or influence your free speech and press rights unless they are acting in the interests of the federal or state governments. For example, when NFL football players take a knee during the National Anthem, they are not expressing any First Amendment rights and may violate some NFL workplace rules. The players and the NFL management are the only entities that can solve this conflict, and the federal government has no constitutional role in this disagreement (Lewis, 2017). Clearly, government violations of free speech or press rights of the average citizen can happen, but that is where our constitutional protections come into play.
Another common myth is that the First Amendment protects your right not to be offended by another person. Again, the facts are that the First Amendment protects your free speech and free press rights from actions by the government, not from individual citizens. Recently, we have seen neo-Nazis and white supremacists marching in some U.S. cities, shouting what many may consider offensive and disturbing slogans and chants. Again, the First Amendment does not prevent what has been described as “hate speech” by individuals unless the speech incites violence or is intended to do so. However, the Supreme Court has identified specific categories of speech/press that are less protected and can be regulated. Examples of regulated speech/press include obscenity, fraud, child pornography, insider trading, perjury, blackmail, speech that incites lawless action, plagiarism, slander, libel, defamation, and regulation of commercial advertising.
In these instances, the regulation of free speech/press is intended to protect citizens from harm and not from being offended. When someone uses speech to deliberately and measurably harm someone else, then the government can regulate and control that speech (McGowan, 2012). Free speech and press are critical to our democracy but also protecting our people from harm is equally vital to our government.
The ability of students to express their free speech and free press rights has also been the subject of controversy. Many people do not think students have the right to protest things that they find are offensive, unjust, or not fair (Sachs, 2018). This myth is wrong on several counts, but the fact is the right to protest only applies to public schools. Also, students may speak their minds or publish their opinions as long as it does not disrupt school activities. Also, students have the right to wear clothing that expresses their views if it does not disrupt school (ACLU, 2018). Learning your rights should begin early, and students should know what they specifically can and cannot do in their schools when it comes to speech and press issues.
Our last myth involves the modern version of a free press: social media. Outrage has emerged from some elements of society concerning what is being published on social media websites (Poushter, 2015). Angry citizens have complained that these websites must not allow lies, rumors, and conspiracies that disparage other people or groups to proliferate. Congress has reacted with proposed legislation to censor some forms of online speech (Tucker, 2008). Again, it must be noted that social media websites are, for the most part, private entities and are not subject to the control or oversight of the central government. When Facebook or Twitter members publish comments and opinions that are unpopular or even false, the only entity that can police these actions are the owners of the media websites. Again, we see the purpose of the Constitution is to primarily protect us from our government while allowing as much freedom as possible.
Free speech and press are supremely important to a free society and must be protected, but we also must understand our government’s role in protecting these rights. The purpose of our government, according to our Constitution, is to protect us from the government. Remember, “…once you give the government the ability to silence unpopular speech, no one is safe. Once you start playing favorites with the protections of the First Amendment, you put yourself at the mercy of shifting political whims. Free speech only for some translates directly into free speech for none” (Rottman, 2014, Para. 10-11).
Happy Constitution Day!
Written by John Ackerman, PhD and Gabe Starika-Jolivet, PhD of the University of Arizona Global Campus for Constitution Day, 2018. John Ackerman, PhD is an Associate Professor of Political Science and International Relations. He is Core Faculty for political science and government as well as military studies. Gabe Starika-Jolivet, PhD is an Associate Professor of Political Science and International Relations, and Chair of both the Political Science and Government and Military Studies online degree programs.
American Civil Liberties Union (ACLU). (2018). Know your rights: Students’ free speech rights in public schools. Washington, D.C.: American Civil Liberties Union. Retrieved from https://www.aclu.org/know-your-rights/students-free-speech-rights-public-schools
Lewis, N. (2017, October 5). The NFL and the first amendment: A guide to the debate. The Washington Post. Retrieved from https://www.washingtonpost.com/news/fact-checker/wp/2017/10/05/the-nfl-and-the-first-amendment-a-guide-to-the-debate/?noredirect=on&utm_term=.8c7f0c2bba09
McGowan, M. K. (2012, January 5). Dispelling myths about free speech. Wellesley, MA: The Albright Institute. Retrieved from https://www.wellesley.edu/albright/about
Poushter, J. (2015, November 20). 40% of millennials ok with limiting speech offensive to minorities. Washington, D.C.: Pew Research Center. Retrieved from http://www.pewresearch.org/fact-tank/2015/11/20/40-of-millennials-ok-with-limiting-speech-offensive-to-minorities/
Rottman, G. (2014, October 22). Free speech for some means free speech for none. Washington, D.C.: American Civil Liberties Union. Retrieved from https://www.aclu.org/blog/free-speech/free-speech-some-means-free-speech-none
Tucker, J. (2008, January 16). Free speech and “cyber-bullying.” Washington, D.C.: American Civil Liberties Union. Retrieved from https://www.aclu.org/blog/free-speech/free-speech-and-cyber-bullying
Sachs, J. A. (2018, March 16). The ‘campus free speech crisis’ is a myth. Here are the facts. The Washington Post. Retrieved from https://www.washingtonpost.com/news/monkey-cage/wp/2018/03/16/the-campus-free-speech-crisis-is-a-myth-here-are-the-facts/?utm_term=.946c05d2a504