Constitution Class: The First Amendment

If you live outside the US, or even if you live in the US and just haven’t been especially interested in government stuff, our Constitutional amendments might seem a little confusing — especially given the contexts in which they’re often raised in the press. This series will explore each amendment in as nonpolitical a way as possible, and we’ll begin with the First.

When the Framers of the US Constitution were writing it, they focused the main text on how the US Federal government would be structured and how it would, at a very, very high level, be run. It established the three branches of our government — Executive, Judicial, and Legislative — and explained the balance of power between them. But the framers also wanted to carve out some specific protections, largely related to the injustices they felt they’d experienced at the hands of the British government.

The first twelve amendments proposed to the Constitution are known as the Bill of Rights; ten of those were passed along with the Constitution itself (one of the other two, governing how often Congress could give itself pay raises, actually passes more than two centuries later, while the twelfth was never ratified). The Bill of Rights carves out specific protections for the citizens of the US, calling out things that the government may not do.

The First Amendment reads:

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.

Text of the First Amendment to the US Constitution

Like most of our amendments, it’s pretty short and sweet. But much of our populace actually overstates what the First Amendment actually does.

The key phrase is right there at the beginning: Congress shall make no law.

That’s really all the First guarantees: that Congress shall make no law which:

  • Establishes a state religion
  • Prohibits the unrestricted exercise of religion
  • Abridges unrestricted speech
  • Abridges unrestricted press (media)
  • Prevents people from peaceably gathering
  • Prevents people from petitioning the government to address grievances

Notice that I’ve used the word unrestricted rather than free, because the word free actually has a few meanings in English. In the Constitution and its amendments, free is taken to mean unrestricted, rather than without price. That’s such a well-known point that it’s even used to make examples:

  • “Free as in beer” refers to something that has no price attached to it, as in a free bottle of beer.
  • “Free as in speech” refers to something that has no restrictions placed on it, such as “free speech.”

Very notably, unrestricted speech can have a cost associated with it. That is, while the government can’t stop you from saying things, your speech can have consequences. If you scream “fire” in a crowded theater, as the most popular example goes, you can be charged and prosecuted for committing a crime. If you lie about someone and cause damage to them, you can be sued for defamation, libel, or slander. Congress has passed no law telling you that you can’t say those things, but if you do, there might be consequences.

This is something a lot of people don’t get. The First Amendment does not guarantee you the right to say anything you want and protect you against consequences.

Something else people get wrong a lot is that key phrase: Congress shall make no law. The First Amendment only prohibits Congress from attempting to restrict your speech. By extension, it also prevents state governments from trying to do so, because we requires states to have their own constitutions, which must be essentially compatible with the overarching Federal constitution. So in effect, the First Amendment prevents only the government from attempting to restrict your speech.

Literally anyone else is allowed to restrict your speech as much as they want.

For example, a company that owns billboards and accepts advertising for them isn’t required to accept any ad that they don’t like. You don’t have a “right” to exercise unrestricted speech on someone else’s property. Twitter doesn’t have to publish any tweets they don’t like, because Twitter isn’t the government. If Twitter was somehow owned and run by the US government, the situation would be different: the government isn’t permitted to place restrictions on your speech. But private parties can do so all day long.

There’s a market force in play which prevents some private parties from being overly restrictive. For example, if Facebook aggressively censored everything anyone posted, people would probably stop using it, the company would go away, and something else would spring up in its wake. (Frankly, the sooner the better, but that’s a different topic.) An advertising company that was overly restrictive about the ads they accept might find themselves out of business as well. But it’s their choice: apart from worrying about losing business, private parties are absolutely allowed to restrict your speech, when your speech is expressed through their property.

If you say something in a public forum — say, on a public street corner, where the government is not permitted to restrict your speech — you can definitely face non-governmental consequences. Your employer could fire you, for example. Now, if you did not have a previous agreement in place with your employer about how you enhanced when you were off the clock, you might have grounds for a wrongful dismissal lawsuit, but that’s not because of the First Amendment. It would be because your employer fired you for a reason you both hadn’t previously agreed would be on the table.

Employers are absolutely allowed to, for example, place restrictions on your speech at work — because employers are not the government (excepting when the government is an employer, in which case the government is usually afforded the same latitude as any private employer). Your employer can establish a policy that forbids political conversations at work, and that’s totally legal. Now, a bunch of people may choose to quit, and it’s possible that employer would have trouble retaining employees with such a policy in place, but that’s market pressures, not a protection of the First Amendment.

In theory, the First Amendment doesn’t prevent employers from discriminating on the basis of your religion. As far as the First Amendment goes, an employer could choose to only hire Christians. The First Amendment only restricts Congress from passing laws that require you to be, say, Christian. People mis this up a lot, because Congress has passed Federal laws that prohibit workplace discrimination based on religion. So in effect, employers can’t require that you follow a particular religion in order to gain employment, but it’s not because of the First Amendment per se. Instead, it’s because of other laws.

Our courts have interpreted the First Amendment in varying ways over the years. For example, many communities restrict you from expressing yourself at high volumes, using noise ordinances. They can’t restrict your speech, but they can restrict you from forcibly shoving your speech into other people’s ear-holes. Courts generally tend to uphold those ordinances; the Framers didn’t have sound amplification, and the extent of your free speech was the limit of your own unassisted voice.

We’ve also agreed, as a society, to place certain governmental restrictions on speech in order to maintain what the majority feels is a civil environment. For example, our Federal Communications Commission (FCC), which governs things like the transmission of information over open frequencies (e.g., broadcast radio or TV), has a list of words you can’t say. However, you can say those words on broadcasts carried over private means, such as cable lines, provided the owner of those means allows it. The upshot is that you can curse a lot more on cable TV or streaming services than you can on broadcast radio.

Obscenity is not considered protected speech. What we define as “obscene” tends to shift and evolve over the years, but courts have agreed that the government can restrict it, hence our bans on filth like child porn, and our restrictions on how legal porn can be sold and accessed.

Political speech is considered “extra protected.” This is a direct outcome of the Framers’ original intent, as the main speech they felt the British government was restricting was the colonists’ badmouthing of the British government. So courts will tend to offer a lot more leeway on political speech, when questions arise about whether something can be restricted or not. For example, a private citizen can sue you for saying something bad about them in public, if what you said isn’t true. A politician usually can’t do the same thing, because allowing them to do so might “chill” overall political free speech, making other people afraid to speak their minds about politicians. There are some limits: threatening violence against a politician isn’t protected, for example.

The First Amendment’s protection on peaceable gatherings also has a key limiter: Congress shall make no law. In practice, this means you’re allowed to peaceably assemble (peaceably, guys — riots don’t count) only on public property, which is where laws hold sway. Private property owners can prevent you from assembling, which is why a shopping mall can prevent you from having political demonstrations inside the mall. And even publicly owned property isn’t fully on the table: Federal installations like military bases, for example, aren’t a place where the First Amendment protects your right to assemble.

No protections in US law are absolute, and the First Amendment is no exception.

The First Amendment is probably one of the most oft-cited amendments in US law and politics. It’s the one almost all Americans will get testy about if they feel it’s being threatened. In many ways, the First is the single most defining piece of law in our entire country. It’s so ingrained into the fabric of the US that it can take literally hours to explain to one of our citizens that most other countries don’t have something like it; we take freedom of speech and religion as an unalterable physical fact of the universe. When an American encounters legal restrictions on speech in other countries, you can usually hear our brains rebooting over and over. As a result, we tend to assign more weight and protection to the First Amendment than it really deserves or conveys, claiming that any restriction on our speech, or any consequences from our speech, is a violation of the First.

Now, of course, you know better.

So that’s my primer on the First Amendment. Did you find this useful? Do you have any follow-up questions? Sound off in the comments. Next time, heaven help us, we’ll tackle the most difficult of our Constitutional amendments: the Second.

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