By David L. Hudson Jr., First Amendment Scholar
January 3, 2006
The First Amendment affects our daily lives by ensuring that as individuals in a free, democratic society we have the freedom to voice our opinions, criticisms, objections and passions largely free from government interference. The First Amendment protects a broad range of public and personal expression on political, commercial, social and private matters.
Because of the First Amendment, we can post political signs in our yards, display bumper stickers and vanity plates on our cars, and speak out at city council meetings.
The First Amendment begins with the words, “Congress shall make no law … abridging the freedom of speech.” Although the words seem unqualified, the right is not absolute. Justice Oliver Wendell Holmes famously wrote more than 85 years ago in the 1919 decision Schenck v. United States: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
The first major qualification is that the First Amendment, as with the other freedoms in the Bill of Rights, protects us from governmental, not private, interference with our speech. If the police arrest you because of your criticism of the mayor, then your First Amendment rights likely have been violated. However, if your neighbor takes down your yard sign, you may be able to sue him or her for trespassing — but you can’t sue that private person for a First Amendment violation. There has been no state or government action.
Content and context remain important free-speech considerations despite the lofty language of the First Amendment. Content is crucial even though the U.S. Supreme Court has made clear that content-based and particularly viewpoint-based restrictions on speech are presumptively unconstitutional. Content becomes important in part because there are certain categories of speech that have been found to have such little social value that they do not merit protection. Examples include obscenity, true threats and fighting words — defined as words that incite an immediate breach of the peace.
Context — where the speech takes place — is also an important factor. Take, for example, the free-speech rights of public employees. Speech that may be protected when you are walking down the street may not be protected when you utter it in the workplace. The first guiding principle is whether one works for a public or private employer. Generally, private employees do not have First Amendment rights on the job, as there is no state actor involved. Public employees do retain a level of free-speech protection and do not forfeit their constitutional rights simply because they work for the government. In its 1968 decision Pickering v. Board of Education, the U.S. Supreme Court ruled that high school teacher Marvin Pickering had a First Amendment right to write an editorial criticizing the school board’s allocation of funds vis-à-vis academics and athletics.
“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,” Justice Thurgood Marshall wrote for the Court.
A public employee may disagree with the policies of her superiors, but she has no First Amendment right to wander around the office uttering profanities, disrupting the workplace and not performing her duties. The courts have ruled that employees retain First Amendment rights only when their expression touches on important matters of public concern, as opposed to mere personal grievances. Otherwise, the federal courts would be forced into the role of super-personnel managers.
Context becomes important in terms of timing, as well. Take the example of a citizen speaking during the public-comment period at a city council meeting. The citizen may want to speak for 30 minutes, but there is not enough time to hear such a lengthy discourse or diatribe. The government can generally impose reasonable time, place and manner restrictions on speech so long as they are content-neutral and give individuals ample alternative ways to express themselves. This means that it becomes important to know whether officials silenced the speaker because of the content of her speech and whether the individual retained an avenue to express herself.
The First Amendment remains a vibrant source of protection in our constitutional democracy, our blueprint for personal liberty. Without it, we would be at the government’s mercy when we engaged in both personal and public expression.