The Bill of Rights

That’s it. That’s the entirety of our Constitution’s First Amendment, the central tenet of our American way of life that gets dragged out every time someone’s banned from Twitter.

There’s a lot going on in those few sentences, and it’s important to know when and how it applies to common situations – and, equally as important, when it doesn’t.

Let’s look at some common First Amendment arguments; illuminated and debunked by a constitutional expert.

This is not a First Amendment issue though plenty of people think it is.

This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn’t apply to private organizations. “So if, say, Twitter decides to ban you, you’d be a bit out of luck,” Nott says. “You can’t make a First Amendment claim in court.”

However, while it’s not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech.

If you work for a private company, it’s probably not a First Amendment issue.

“It’s the company’s right to discipline their employees’ speech,” Nott says.

But just because a private employer has the right to fire someone for something they say doesn’t give them legal carte blanche. Depending on what the fired employee said, the employer could be in violation of the Civil Rights Act, or possibly in violation of contract law

If you’re a government employee, it’s complicated.

Institutions like police departments, public schools and local government branches can’t restrict employee’s free speech rights, but they do need to assure that such speech doesn’t keep the employee from doing their job. It’s definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee’s speech in a constitutional manner.

Real Life Example

  • Google reportedly fired a male engineer who, in a memo, argued women are not biologically fit for tech roles. It’s not a First Amendment issue because the government is not involved.
  • However, Nott says she’s heard of cases where police officers sued after being fired for saying or writing racist remarks, and courts have ruled in favor of the department. In that case, she says, “They decided that for police officers, in their community, being a known racist impacts their ability to do their job.”
  • However, public servants like police officers are also allowed to act as private citizens, and a flurry of recent cases have ended up coming down on the side of the officer. in 2016, the Supreme Court ruled in favor of a police officer who sued his department when he was demoted after he was spotted in public holding a yard sign for a mayoral candidate.

    If it’s a private institution, it’s probably not a First Amendment issue.

    If it’s a public institution, the lines can get blurry.

    “If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights,” Nott says. That doesn’t mean you can’t put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can’t do so in a way that discriminates against a certain point of view.

    If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge.

    “If a speaker were to take legal action for being blocked from speaking, they can’t do it against the students. You can’t take constitutional action against a group of private citizens,” she adds.

    Such a complaint would have to go against the school, for allowing the constitutional breach to happen.

    Real Life Example

  • Two conservative organizations filed a federal lawsuit after a speaking event at UC Berkely featuring Ann Coulter was rescheduled following violent protests and threats. The groups argued the change of venue and time was “repressive” and marginalized conservative views. The school says they acted out of concern for safety.
  • The question of intent is central to arguments like these. “If they moved her because her life is under threat, that seems pretty viewpoint neutral,” Nott says. “But if a school moves a speaker just to shove them to the side then that is unconstitutional.”

    Definitely a First Amendment issue.

    But, like pretty much everything in law, there are exceptions and nuances.

    “It’s definitely unconstitutional, unless you are trying to incite people to violence with your speech,” Nott says. Even then, it needs to be a true threat – one that has immediacy and some sort of actual intent.

    Real Life Example

  • During the Vietnam War, a man was giving a speech and said, if he got drafted, his first bullet would be for then-President Lyndon B. Johnson. Courts ruled that it wasn’t a true threat.
  • “They looked at the context, and it was hyperbole,” Nott says. “The audience took is as a joke, they laughed, and it was clearly a joke. If he was going to meet with LBJ the next day, or had said it in a serious way to a serious audience, that would be a different set of circumstances.”

    It’s a private company, so it’s not a First Amendment issue.

    There’s that refrain again: Private companies, like social media sites, can do whatever they want.

    But regulating conversations and posts online is a delicate balance for social media giants like Facebook.

    While such sites retain the right to remove content they don’t like, they are also protected by the Communications Decency Act, Section 230.

    “That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do,” Nott says. This covers things like obscenity, violence and threats.

    The problem is, this protection often butts up against the enforcement of basic community standards.

    “Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news,” Nott says. “And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection.”

    What speech isn't covered under the First Amendment?

  • Obscenity (the definition relies on context, but regular old porn is not considered obscene)
  • Fighting words
  • Defamation
  • Child pornography
  • Perjury
  • Blackmail
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes
  • Plagiarism of copyrighted material

  • Source: The Newseum Institute

    This is a First Amendment issue, at the very least in spirit.

    “Symbolic speech is protected by the constitution,” Nott says. “In essence, you have the right to not speak. You have the right to silence.”

    In theory, a private employer could require you to stand for the anthem or say the Pledge of Allegiance, but such a requirement may run afoul of the Civil Rights Act. Even in schools, where there have been some cases of students being singled out for sitting or kneeling for the anthem, it would be hard to provide justification for punishment.

    “This is an act of political speech, the most protected type of speech,” Nott says. “It’s completely not disruptive because it’s silent.” Plus, it is buttressed by court cases that have decided there is no requirement to salute the flag.

    A First Amendment issue – usually.

    You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated.

    This is, unless you were doing something unlawful at the time of your arrest.

    In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention?

    “That’s tough,” Nott says. “If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it’s not a crime to record police activities in a public space.”

    If it’s a student publication, it’s a First Amendment issue.

    Nott points to a landmark Supreme Court cases from 1969 that has acted as a standard for cases involving free speech at public universities and colleges. That’s Tinker v. Des Moines Independent Community School District, which you can read more about below.

    Another case, Bazaar v. Fortune from 1973, helps tailor these guidelines to the student press by stating that schools cannot act as “private publishers” just because they fund a student publication or program. In other words, they can’t punish the publication – whether it be through student firings, budget cuts or withdrawals or a ban – just for printing or broadcasting something they don’t like.

    Now, a gentle reminder that this is just for PUBLIC schools. All together now: Private institutions can (usually) do what they want!

    Real Life Example

  • Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
  • In December of 1965, three students were suspended for wearing black armbands to school to protest the Vietnam War. The school argued the display was a distraction and possibly a danger to students, and the case went all the way up the judicial chain. The Supreme Court didn’t bite.
  • “While schools have a responsibility to keep their students sage, [the Supreme Court] decided that the armbands didn’t invade the rights of others,” Nott says. “And ultimately, the school asking students to remove the bands infringed upon their rights.”
  • This case is used as a gold standard for free speech in schools.