The Misunderstanding Of The First Amendment
Posted by Mitch Mitchell on Aug 21, 2011
Last week there were some spontaneous protests in San Francisco surrounding the BART system. Someone there surmised that protesters were mobilizing themselves by using their cell phones and decided to turn off access to their signal. This generated claims of censorship, with many people saying their freedom of speech rights were being violated.
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It seems like it's time to clarify something for the masses; there is no freedom of speech law. Yeah, I know, some people are going to pull out the 1st Amendment to the Constitution and say that guarantees them the right to say whatever they want to say whenever they want to say it.
Folks, the Constitution doesn't say that, nor guarantee it. What it says is that Congress can't pass any laws inhibiting free speech. The goal of those that agreed on that principle was to allow regular people to disagree with what's going on with the government without worrying about being prosecuted, which is what kept happening in other countries around the world at that time, including England.
That was the only purpose of the "speech" part of the 1st Amendment. Even with that, there are limits on what people can get away with as it pertains to the government. For instance, one can't advocate violence against the government or any member of Congress without possibly being arrested. That's why we always hear about people getting arrested and being sentenced for threats against the President and Congress. One can't advocate violence by a group of people, such as getting a mob together with the purpose of advocating action.
And we all know of a host of other "freedom of speech" laws that have been passed where the concept isn't true. You can't yell "fire" in a crowded theater. You can't talk about bombs at an airport. You can't openly burn a cross on someone's lawn. You can't libel or slander anyone. On and on and on.
Anyone who's ever worked at any company knows there's certain behavior that's not allowed in the workplace either. You can't disclose to others how much money you make. You can't openly put down other employees. You can't always disclose how the company is doing to everyone else, or how much money the company is or isn't making. You can't disclose anything related to medical issues or if someone's getting counseling.
Think about your blog, if you have one, or your community wall, or even certain forums you might participate in. For the most part, all of them have rules that you have to adhere to; no one can get away with saying everything. Every owner has the right to set the rules of discourse because they're paying for it. That's just how it goes. I'm no different; people can disagree with me on my blogs but if there's bad language I'm going to remove it and not worry one bit because I'm paying for it and monitoring it and have a policy about it.
Do I agree with any or all policies regarding freedom of speech? Not even close. I don't believe a company has a right to tell people what they can say on their own time as long as they're not giving away company secrets. I don't believe schools can tell teachers what they can do; same with students unless they're intentionally harassing another student; there always has to be limits after all. I don't think that with our society today there can be blanket rules for anything.
So we pay for our rights or we're ready to suffer whatever consequences there are for what we have to say. Either that or temper what we have to say; it's our choice.
It’s the same in every country, not that I like that. When I was a kid, people were disappearing everyday just because somebody have decided to tell a joke in the barber shop about the party leader.
Carl, back in the day that kind of thing happened more often that some believed. These days they just track you, but they know what’s going on.
Mitch: great post. As a one-time law student, I love these kinds of questions. While I agree that free speech is not absolute, there is still a preference in the law to stop actual speech that can be deemed against the pale (ie: broadcasting troop movements)–not pre-empt what might be speech. On that score, The BART case is very interesting: a government entity shut down access to a technology that clearly facilitates speech in order to prevent a potential demonstration (a two-fer! shutting down speech & assembly!)
There is so much in there to argue about, I’m sure the lawyers will be kept very busy. My take is that they were barely in bounds doing this–they shut off everyone’s access–hard to prove it was solely intended for protestors.
As for the “fire in a crowded movie house” aspect: Holmes was saying that the panic and potential harm to folks attempting to get out of the building trumped free speech rights. Was a protest against BART service in the subways an analagous case? Would people freak out and cause a dangerous melee? Not so sure on that score.
Is eliminating access to a technology that BART is not ordinarily required to provide–a technology that merely facilitates speech–actually a limit on free speech? I also don’t think that is the case.
Great stuff! Democracy: wild, wooly and a heck of a puzzle!
Phil, it’s always a dicey road when we get into free speech issues, as well as the issue of privacy. I mean, today’s smartphones have both WiFi and digital access; how much could they really shut down? And as you said, did they have to have wireless connections in the first place?
I tend to believe all these things have to be looked at individually. For instance, where does free speech come into play when you work in an office that tells you that you can’t make any personal calls on their phones or text at the office except during lunch and breaks? If someone has children how far will that policy go? These days almost everything ends up in court and we have the top Supremes debating and coming up with rules on the fly that immediately get challenged. It’s just not as simple as what the founding fathers were hoping for.
with respect to your comment “Anyone who’s ever worked at any company knows there’s certain behavior that’s not allowed in the workplace either. You can’t disclose to others how much money you make. You can’t openly put down other employees” — actually that speech is protected activity if done between two or more employees and it relates to working conditions be it pay, how unfair the supervisor is, etc., == concerted activity under the NLRA. But that’s labor law and not 1st amendment ….
Michael, I know people that have been fired for it because it was explained to them in an employee handbook as condition of employment. Not that it stops people from talking for the most part but I can tell you it’s something I’ve never done, even as an independent consultant, mainly because I wouldn’t want to know if someone was making more than me. Overall though, labor law or 1st amendment, the presumption that one can say anything they want to at any time isn’t true.