Legalese — The First Amendment

first amendment
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“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

These are the actual words of the First Amendment to the Constitution of the United States of America. 

The First Amendment gets bandied about quite a bit whenever free speech or freedom of religion comes up in conversation.  The conventional wisdom seems to be that the First Amendment guarantees an absolute freedom of speech and an absolute freedom of religion: this simply isn’t true.

First of all, look at the subject of the sentence that makes up the Amendment: Congress.  Congress is the entity that can’t make any laws establishing a particular religion or prohibiting the free exercise of any particular religion, or preventing anyone from saying what they want or the press from saying what it chooses to say.  Congress.

That isn’t to say that a private entity or business or individual can’t have restrictions.  My house, my rules.  In my house, you may not say hateful things.  If you do, you have to leave.  My house is not a public forum.  I am not Congress.  I can make whatever rules I like in my house.  For that matter, there is no freedom of religion in my house.  You may not worship a God that insists I am going to Hell in my house.  Not openly, anyway.  As soon as we step into a public forum, it’s a different story, but in my living room, I can make the rules.

That said, every rule has exceptions.  The United States Supreme Court has ruled over the years that freedom of speech is not absolute.  You can’t defame someone with lies, you can’t create a clear and present danger with speech, you can’t disrupt the educational process, and obscenity is not protected speech.  We want these exceptions to exist – I daresay there isn’t anyone reading this who thinks that child pornography should be protected by freedom of speech or that human sacrifice should be protected by the freedom of religion provisions of the Constitution. 

The question is, then, where does the line get drawn? Where is the line drawn between “you can say what you want” and “okay, but not that – you’ve gone too far with that”?  My living room is obviously a private space.  But is a dining room that is privately owned but open to public use a private space?  Those are terribly difficult questions, and the lack of unanimous decisions from the greatest legal minds our country has to offer shows that there are no easy answers.

Bear in mind that freedom of speech is not synonymous with freedom from consequences.  Yes, you can say whatever you like in most instances here in the United States.  But there may be repercussions.  Maybe not legal ones[1], but social ones.  You may be shunned.  You may be banned from certain social events or clubs.  People may not like you or your opinions. 

In other words, you get what you give.  Kindness begets kindness.  Hate begets hate.  Forgiveness begets forgiveness and anger begets anger.  Judgment renders judgment and open-mindedness provokes the same.  That’s not in the Constitution, but it is in the world, and there’s nothing Congress can do to change it.   


[1] Or maybe, as Amber Heard and Johnny Depp are finding out.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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