What the First Amendment Does and Does Not Protect
What the First Amendment Does and Does Not Protect
By David L. Hudson, Jr.
In this age of political polarization, a perilous pandemic, and pervasive protest, the First Amendment comes sharply into focus. After all, Americans assume that they can speak their mind, criticize government officials, and engage in certain forms of direct action. The First Amendment serves as our blueprint for personal freedom, it is what Justice Benjamin Cardozo famously referred to as “the matrix” — the indispensable freedom.
But, the First Amendment also is gravely misunderstood. We live in an age of ignorance about basic constitutional principles. This piece seeks to provide understanding about what is protected and what is not.
- The First Amendment Protects Criticism of Public Officials.
Perhaps the most fundamental First Amendment principle is that citizens can speak freely and criticize government officials. The words of the Constitution begin the words “We the People,” not “We the Leaders.”
Justice William Brennan referred to this in New York Times Co. v. Sullivan (1964), a ruling that constitutionalized libel law and saved the civil rights movement. He wrote that there is a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open. Further, it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
The ruling insulated those who criticized Southern officials of civil rights abuses from a crushing libel verdict. It doesn’t mean that people can say anything about public officials. If a person makes a false statement of fact, knowing the statement is false, or in reckless disregard of the truth, there remains the possibility of a libel suit.
But, gone are the days of something like the Sedition Act of 1798, an awful law passed only seven years after the ratification of the First Amendment that allowed Federalist officials to prosecute newspaper editors aligned with the opposing political party, the Democratic-Republicans.
- The First Amendment Protects Much Offensive and Even Hateful Speech
The First Amendment protects much speech that we don’t like. It protects offensive, ugly, and even repugnant speech. Once again, Justice William Brennan expressed this quite eloquently in Texas v. Johnson (1989), a case about flag burning, when he wrote: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.”
There is no general hate speech exception in United States jurisprudence. It doesn’t mean that all hateful expression is protected. If hate speech devolves into the narrow unprotected categories of actual threats, fighting words, or incites imminent lawless action, it loses the cloak of protection.
Many people acknowledge this principle in the ideal but can’t accept it in the real. They act in what the late, great author Nat Hentoff called “Free Speech for Me But Not For Thee.” In a free society, we must accept that other persons will hold ideas or beliefs that are offensive to our core beings.
- The First Amendment Protects Peaceful Protest.
The First Amendment protects the right to peaceful assembly. The women suffragists of the 1910s and the civil rights protestors in the 1950s and 1960s exercised this right in a public fashion, exposing the ugly underbelly of gender and racial discrimination. Perhaps the most eloquent example of this occurred in Columbia, South Carolina when nearly 200 African-American students marched from a local church to the statehouse with “Down with Segregation” signs and chanting hymns such as “We Shall Overcome.” Along the way, a white student joined them. He was Frederick Hart, who later became a world-renown sculptor.
Officials arrested most of the students and charged them with breach of the peace. They took their case to the U.S. Supreme Court. “The circumstances, in this case, reflect an exercise of these constitutional rights in their most pristine and classic form,” Justice Potter Stewart wrote for the Court in Edwards v. South Carolina (1963). “The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.” Stewart wrote that the student-protesters’ actions represented the epitome of the First Amendment freedoms of assembly and petition, writing. “They peaceably assembled at the site of the State Government and there peaceably expressed their grievances to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.”
- The First Amendment Does Not Protect Looting and Violence Against Persons.
The First Amendment protects peaceful protestors — that was the essence of the Civil Rights Movement and the reason the amendment was crucial to the movement’s success. As John Lewis famously said, the civil rights movement without the First Amendment would be akin to a “bird without wings.”
But, let’s be crystal clear. The First Amendment does not protect violent assembly, looting, and violence perpetrated against law enforcement officials or others. Some may justify looting and rioting as an expression of raging against a discriminatory machine. But, the First Amendment does not safeguard such conduct. The Report of the National Commission on Civil Disorders said it well back in 1968:
“How can the nation realize the promise of a single society — one nation indivisible — which remains unfulfilled?”
Violence surely cannot build that society. Disruption and disorder will nourish not justice, but repression. Those few who would destroy civil order and the rule of law strike at the freedom of every citizen. They must know that the community cannot and will not tolerate coercion and mob action.”
The First Amendment can serve as the key tool in galvanizing for social justice. It is not the vehicle for abject violence.
- David L. Hudson, Jr. is a professor at Belmont University College of Law who writes and regularly speaks on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), the author of a 12-part lecture series entitled Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series entitled The American Constitution 101 (2019).
