First Amendment Protections

The First Amendment is part of the Bill Of Rights of the Constitution.  While this is the “highest law of the land”, it is important to note that it doesn’t actually apply to everything; it only applies to the government.

The text is:

“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.”

What It Means

The Federal Government (that’s Washington D.C.) can’t censor your ideas.  Based on ideas.

This was a change from the pre-U.S. law criminalizing Seditious Libel on the basis that insulting the government weakens it.

What It Excludes

It does not say that the following are protected:

  • Speech that may endanger.  In other words, you cannot yell “Fire” in a theatre, because someone could get hurt in the stampede.  That’s not protected.
  • “Incitement” is also not protected.  For example, a hate group could not go into a neighborhood high in the demographic they target and spout off; that would be “incitement.”
  • You cannot force anyone else to publish your speech.  In other words, Facebook can censor you.  The New York Times can censor you.  Because even then, you could stand outside and speak; your speech is not abridged.
  • Your Employer.  To paraphrase the amendment, your employer “could make a rule prohibiting your exercise of freedom of speech while in their employ.”  Basically, you can choose to say whatever you want, but they can choose to employ whomever they’d like… and it can be based on what those people said.
    For example, while most people would agree that homophobic or antisemitic speech is offensive, at the national level it is protected.  But your employer would probably fire you for saying it, largely due to the impact on them.
  • Lies (False statements of Fact.)  In 1974 in Gertz v. Robert Welch, Inc., SCOTUS determined that there is no value to lies.
  • Trademarks and Commercial Speech.

Common Misconceptions

Separation of Church And State

This phrase was invented after the signing of the Constitution by Thomas Jefferson in a letter to a church in  Baptist Association in Danbury, Connecticut.  It isn’t part of the Constitution nor the Bill Of Rights.

In 1962, SCOTUS decided in Engel v. Vitale that schools could not mandate school prayer.  This was the first prohibition on state-sponsored religion.

You Can’t Be Fired, Harassed, etc.

There is no protection for your speech from your fellow citizens.  This includes your employer, your co-workers, etc.  That’s got nothing to do with the First Amendment, as it applies only to the Federal Government.

So you absolutely can be fired.  In fact, in most employment is “at will,” meaning the employee can be fired for no reason at all, with a few exceptions:

  • Statutory… can’t be fired for being in a protected class such as gender, religion, race… but that does not protect the employee from being fired for performance or mouthing off.
  • Contract… one of the few benefits unions bring is protection from arbitrary firing.

Even if your speech was appropriate today, much like Thomas Jefferson, you could wind up on the wrong side of history next year and be fired.

The Bottom Line

The First Amendment does not protect you from the consequences of your speech.  It doesn’t protect you from your employer deciding to fire you, from your club expelling you or your friends ostracizing you.  The only thing the First Amendment does is, it allows you to dig that hole for yourself with no interference from the U.S. Government.

That’s it.

So watch what you say.  You can be fired for it.

2 thoughts on “First Amendment Protections

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