For many people, the First Amendment is like a mountain off in the distance: Its general outlines are familiar, but the surface details may not be.
The First Amendment was added to the American Constitution in 1791, along with nine other amendments, which together are known as the Bill of Rights. The protection for freedom of speech provided by the First Amendment is probably its most familiar feature, but it actually contains six separate rights — covering free speech, free press, the free exercise of religion, prohibiting the establishment of a religion by the government, the right to petition the government for redress of grievances and the right to peaceably assemble.
It’s important to understand that the Founders’ main goal in giving constitutional protection to freedom of speech was not simply to encourage citizens to speak their minds, but to create an effective check on the power of the federal government.
The Founders feared strong central governments, having witnessed the abuses that occurred in Europe. They believed that empowering people to criticize the government without fear of punishment would expose and deter attempts by government officials to engage in authoritarian behavior.
The Founders well understood that giving such broad protection to everyone’s speech was, for the time, a radical experiment. But it was also a logical extension of the core values on which the Declaration of Independence and the Constitution were grounded.
The Supreme Court has eloquently described this experiment — “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Application of the Constitution’s free speech guarantee requires an understanding of certain key principles. First, it covers only government action, attempts by the government — whether federal, state or local — to restrict speech. That’s why the First Amendment doesn’t apply to censorship by social media companies like Twitter and Facebook, or to protests by athletes like Colin Kaepernick.
Second, despite the unconditional language in which the First Amendment is framed (“Congress shall make no law”), the Founders recognized that the free speech protection wasn’t absolute, that some exceptions were allowed. For example, libel claims and copyright infringement existed when the First Amendment was adopted, and they weren’t affected by it.
It’s also worth noting that although “freedom of the press” is a separately enumerated right in the First Amendment, the Supreme Court has held that the protections for freedom of speech are so broad that freedom of the press doesn’t add anything beyond them — in other words, the two rights are effectively the same.
Because the First Amendment provides virtually no guidance about how it should be applied in particular cases, the meaning of the free speech guarantee has been almost entirely developed by the Supreme Court, which has issued scores of decisions over the years interpreting it. Among the most important principles adopted by the Court is that “freedom of speech” covers much more than just speech — it protects almost any form of expression, no matter how conveyed — including things like nude dancing and burning the American flag.
The Court has also held that the First Amendment by implication prohibits the government from compelling people to say things they don’t want to say, such as a loyalty oath. And the Court has determined that corporations have free speech protections, just as individuals do.
Over time, the court’s decisions have produced a body of law that can be very complex, sometimes inconsistent and not always predictable. Because new issues are constantly arising, the court has developed a five-part framework for analyzing the constitutionality of restrictions on expression.
So-called “prior restraints” — where the government completely prohibits someone from speaking — are the least tolerated kind of restriction, and are hardly ever permitted. Also receiving a very formidable degree of protection are restrictions targeting the content of particular speech, where the government disapproves of the speaker’s message. Restrictions aimed at how speech is conveyed rather than the content of the speech (for example, where a city prohibits rock concerts on public property after midnight) are referred to as “content-neutral,” and they’re given somewhat more leeway, though the protection for speech is still substantial. After this in the framework is “commercial speech,” basically advertising, which does enjoy some First Amendment protection, though it’s weaker than for most other types of expression. The final — and very small — category is speech that receives no First Amendment protection. This includes expression that is used to conduct illegal activities, such as blackmail, harassment and threats of violence, or that creates an imminent danger of public harm (falsely yelling “fire” in a crowded theater).
Currently, many of the biggest First Amendment issues are being generated by the enormous expansion of the internet, social media, and electronic information technology, which the Founders obviously never dreamed of. In the next article in this series, we’ll examine some of those issues in more detail.
Anfinson is a Minneapolis-based First Amendment attorney.
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