Reading any given newswire can quickly highlight a fundamental misunderstanding about the First Amendment. Confusion has been rampant for issues surrounding the Westboro Baptist Church, the Hobby Lobby debacle, and recent issues in Houston.
The problem is, for these and similar cases, the First Amendment generally shouldn’t even be at issue.
Consider the full text of the First Amendment:
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.
This has been interpreted to extend to the states and localities, meaning any action under the color of law could potentially be considered abridging free speech or free exercise. This is all well and good; speech, religion, whatever—subject to a few well-settled exceptions—we typically accept it all.
Confusion arises as to when the First Amendment applies. Here are two questions to ask before kicking and screaming about the First Amendment, which should save us all the headache of reading a sensationalized piece in our local op-ed.
1. Is There a Government Action Affecting Speech? This one is pretty simple. Whenever the law, a law, or law enforcement infringes upon someone’s free speech rights, start thinking about the First Amendment. But when someone hurts someone else’s feelings, or uses a purely legal process for the purposes of investigating potential misconduct, such as in Houston, the first place we all jump to should not be the First Amendment.
Remember the government is allowed to control or compel certain things with respect to speech. If we’re all about to start kicking and screaming over a pastor’s First Amendment rights to be sheltered from subpoena powers, but be completely okay with the “qualified” privilege journalists enjoy after Branzburg v. Hayes and In re Miller, we should all spend some CLE time learning what the First Amendment is really around for.
2. Is There a Protected Party or Liable Party?
Another important yet frequently overlooked aspect of the First Amendment is whether the party is entitled to protection. The most obvious example is a public employee, where by virtue of being such, their speech rights with respect to matters of public opinion, are inherently different from say, lying or speaking in a way that would substantially interfere with their duties.
In Snyder v. Phelps, the Supreme Court sort of had to tackle this issue, perhaps largely by virtue of a court decision for a large amount of damages becoming a crux of the analysis. In any event, the Court was steadfast—the First Amendment shielded the church from liability.
While this should not be read in any way as saying the Westboro Baptist church suit should not have been brought, it’s worth mentioning that the case was largely fueled by hype and outrage. While it’s precedent has now made the First Amendment stronger on the speech side, that same type of outrage has ostensibly weakened the First Amendment in the context of religious exercise in a different case.
The take-away is this: it’s easy to point fingers and cry “free speech” or, on the other hand, “you don’t have the right the say that!” But at the end of the day, the Constitution, and all of us, would be better served if we sat back and thought long and hard about whether the First Amendment should even be implicated.