The Truth About the First Amendment

 

First Amendment of the United States Constitution via LexRoll

  Although most people know the First Amendment prevents the United States government from imposing on people's freedom from religion, freedom of religion, freedom of the press, freedom of peaceable assembly, and freedom to petition a redress of grievances, there are a lot of nuances to it that many misunderstand or overlook. 

     One of the biggest misconceptions is that no one is allowed to infringe on any of one's freedom of the First Amendment; however, that is not the case. In fact, according to the State Action Doctrine, "Without government involvement, no constitutional claim can be made because only the government can violate your constitutional rights; therefore, the First Amendment does not reach private actors." This is the result of the first five words of the amendment, "Congress shall make no law," which limits potential violations of the first amendment to only actions taken by the government. Originally, it was limited to actions taken by Congress, however, the inclusion of state and local governments began in 1925 after the precedent-setting Supreme Court case of Gitlow v. New York.

    Another important component of the First Amendment and First Amendment Law is the Speech/Action Dichotomy. This question must be answered to determine if the First Amendment applies to a case or not. Under the First Amendment, freedom of speech is a protected right, however, actions are not. Despite this, actions can be protected under the First Amendment as protected speech if they are shown to be an expressive action. Actions are considered expressive if they are intended to convey a message to an audience. 

    Finally, one other misconception about the First Amendment is that it is absolute and a shield against any other law. This is incorrect, as there are exceptions to what it protects. For example, speech that incites panic or a threat to a government official is not protected as free speech. The First Amendment is also not a shield against laws of general applicability, meaning that one cannot vandalize a government building and rightfully claim it is an expressive action (which would grant protection under the First Amendment); they would be guilty of vandalism because the First Amendment is not a shield. 

Protestors at the Capitol Building via NBC News

    First Amendment debates have been a hot topic in the news and in Washington D.C., especially recently following the impeachment of former President Donald J. Trump for the incitement of the Capitol riots on January 6th. Although speech is typically protected under the First Amendment, incitement is one of the types of speech that can unprotected, specifically speech that incites "imminent lawless action." This precedent was established in the 1969 Supreme Court case of Brandenburg v. Ohio. If it is deemed that his speech was the instigator to the Capitol riots, he would not be protected by the First Amendment, and the U.S. Senate can choose to convict him for the charge of incitement of insurrection. 

    There have been arguments on both sides as to whether or not President Trump incited the riots. Danny Cevallos for NBC news argued that in a criminal court, there is a solid defense that could be made in his favor that would be strong enough to plant reasonable doubt in the mind of the jury. However, he also writes that even though that is the case criminally, in the Senate they are only "bound by the two-thirds supermajority vote standard - and not much else," thus acknowledging the impeachment trial will work differently than a typical criminal trial.

    On the other side, Joshua Matz and Norm Eisen published an Opinion piece for Politico claiming that Trump's speech should not be protected by the First Amendment. They point out that in the past the Supreme Court has held government officials to a standard where they have less First Amendment protections because of their duties, therefore President Trump should not have more protection than others. They also stated, "...even if Trump's statements would not count as "incitement" under cases limiting the government's power to punished private speakers, the House is fully authorized to find that Trump's actions constitute a high crime and misdemeanor," adding their belief that his statements fully instigated the riots at the Capitol. 

    In conclusion, the First Amendment allows people to speak out about their thoughts, practice whatever religious beliefs they so choose, publish articles that may paint political figures in a negative light, and many more things, freely without fear of constitutionally-just government infringement. On the hand, it does not allow people induce panic, make true threats, incite imminent lawless action, as well as a few other types speech. It also does not condone the usage of the First Amendment as protection against other laws of general applicability.