10 Rights the First Amendment Absolutely Does Not Grant

Protest Pictures

By Dave Ross

A group of protesters, including Princeton professor Cornel West (center), march in Boston during the Occupy Boston movement to protest corporate greed.

You’ve seen the headline dozens of times. A movie star or professional athlete gets fired for making an insulting or racist comment during a TV interview. The person’s response: “Last time I checked, it’s a free country!”

That’s true. The First Amendment to the U.S. Constitution guarantees the right to freedom of speech. But that doesn’t mean that people won’t be offended by your words or that the First Amendment protects the right to say anything, anywhere or anytime without repercussions.

The full text of the First Amendment reads:

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.

The Founding Fathers drafted the Constitution in 1787, but the states refused to ratify it without a Bill of Rights explicitly saying what the new government could and could not do. Recently freed from a tyrannical king, the American people wanted a limited government with strong protections for personal freedoms and political dissent

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The Bill of Rights (which encapsulates the first 10 amendments to the Constitution) became law in 1791, but the broad freedoms outlined in the First Amendment have been refined by centuries of court rulings, including many historic Supreme Court decisions. America is still a “free country,” but you might be surprised how many rights are absolutely not granted by the First Amendment.

Several demonstrators dressed as pilgrims carry placards calling for the release of political prisoners in front of the White House, ca. 1919.
Freedom of speech is one of the pillars of American democracy. The Supreme Court has reaffirmed again and again the right of any person or group to proclaim and publish its opinions — no matter how unpopular. In a high-profile 2011 decision, the Supreme Court defended the rights of the controversial Westboro Baptist Church to protest during military funerals. The Ku Klux Klan is allowed to stage parades, and writers and artists are allowed to produce books and artwork that push the boundaries of taste.

Does that mean you can say absolutely anything to anyone at any time? Absolutely not. The Supreme Court and lower courts have identified nine types of speech that are not protected under the First Amendment

:

  • Obscenity
  • Fighting words
  • Defamation (including libel and slander)
  • Child pornography
  • Perjury
  • Blackmail
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes

These particular types of speech are unprotected because they either actively break the law, incite others to break the law, or create a potentially violent or unsafe situation. Obscenity arguably has proven the most difficult to define. In the 1973 Supreme Court case Miller v. California, the justices established a three-part test to determine whether a publication, movie, image or work of art is “obscene.” In general, such a work is protected as free speech if, “taken as a whole,” it has at least some “serious literary, artistic, political or scientific value”

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Actress Carol Burnett sued the National Enquirer for libel when it erroneously reported she had been drinking and got into an argument with Henry Kissinger in a restaurant. Burnett won in 1981.
In a 1786 letter to a friend, Thomas Jefferson wrote that “our liberty depends on the freedom of the press, and that cannot be limited without being lost”

. A free and unobstructed press provides a powerful check on government corruption. Journalists — including bloggers and other online writers — enjoy strong protections under the First Amendment, but does that mean you can publish absolutely anything?Not if it is false. This is where defamation laws come into play. Defamation is speech that is both false and damaging to someone’s reputation

. Written defamation is called libel, and spoken defamation is called slander. Over the years, the courts have established some tests for defamation. The statement must be published, false and “injurious” (proven damage to reputation). If the defamed person is a public figure (like a politician or celebrity), the libelous statement must be made with “actual malice,” meaning it wasn’t an “honest mistake,” but a conscious decision to publish a lie

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Defamation is a civil offense, not a crime. Victims of libel or slander sue the offending publication for damages. Not surprisingly, the National Enquirer and other tabloids are frequent targets of libel suits

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The American Library Association says that the “Harry Potter” series collectively is the most banned book of the 21st century.
If offended parents had their way, high school libraries would be free of such “filth” as “The Great Gatsby,” “Ulysses” and the “Harry Potter” series

.Throughout the 20th century, individual students, outside groups, and most often, parents have sought to ban or remove certain books from public school libraries. In case after case, the Supreme Court has defended a student’s First Amendment right to read and receive information.

In a landmark 1982 Supreme Court case, the justices ruled that a local New York board of education violated its students’ constitutional rights by removing nine books identified by a conservative organization as “anti-American, anti-Christian, anti-Semitic, and just plain filthy”

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School officials cannot restrict access to books just because they disagree with the content and ideas found in them. Sexually explicit material and offensive language are the top reasons for challenging books, but those reasons alone haven’t held up in court. The only justifiable reason cited by the Supreme Court for removing a book from a public school libraries is if it qualifies as “pervasively vulgar”

. “Harry Potter” should be safe for now.

The First Amendment allows you to discuss religious and political matters at work but employers can forbid it if they find it disruptive to the workplace.

The First Amendment rejects any government restriction of free speech, but does that mean you are free to say whatever you want at the workplace without fear of getting fired? Clearly, some types of speech — like open threats or sexual harassment — are grounds for disciplinary action according to workplace policies. But what about other types of protected free speech, like professions of deeply held religious or political beliefs?

In both public and private workplaces, employees reserve the right to display religious or political signs or symbols at their desks and discuss their opinions with co-workers as long as those desktop displays and conversations do not create a hostile work environment

[sources: First Amendment Center, Snyder].

Of course, one person’s casual conversation is another person’s harassment. Employers reserve the right to discipline or fire a worker who continues to proselytize after warnings that such behavior is disrupting productivity or making co-workers uncomfortable. That’s as long as employers are sure they won’t run afoul of laws prohibiting employment discrimination based on race, color, religion, sex and other characteristics[sources: First Amendment Center, Snyder].

First graders pray silently in a South Carolina public school in 1966. At the time, the state’s school districts left the “prayer issue” to the teacher’s discretion.
Not that long ago, public schoolchildren across America — of all religious backgrounds — began their day with a recitation of the Lord’s Prayer. It wasn’t until a pair of landmark Supreme Court decisions in 1962 and 1963 that state-sponsored, mandatory school prayer was deemed a violation of the First Amendment’s “establishment clause” forbidding the establishment of a state religion

.But the First Amendment is tricky. The same sentence that outlaws the establishment of a national religion protects the rights of individuals to express and live according to their own religious convictions. Students are free to pray in school, form Bible study groups and openly discuss religious views in the classroom, as long as the religious messages come from the student, not the public institution.

This puts public school teachers in a constitutionally precarious position. Public school teachers are individuals with the right to freely practice their religion. But public school teachers are also considered “representatives of the state” by the U.S. Department of Education. Teachers are free to pray individually before, during and after school, and even form a lunchtime Bible study group with other teachers, but they are prohibited from endorsing or participating in religious activities directly with students during the school day

. That includes praying with students or joining student-run religious groups in anything other than a monitoring role

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A Chick-Fil-A employee tries to hand out lemonade during a protest at a Chick-Fil-A restaurant in Decatur, Ga. in 2012. People protested the chain nationwide after the COO (the son of the founder) voiced opposition to gay marriage.

The right to “peaceable assembly” is a fundamental First Amendment protection that allows citizens to gather to publically air their grievances. Freedom of assembly is what empowered the nonviolent civil rights movement of the 1960s to bring the injustices of segregation to national attention. So why is it that we often see scenes on TV of police arresting peaceful protesters or employing tear gas to disperse a crowd?

First of all, protests that occur on private property are unprotected by the First Amendment. A private property owner reserves to right to kick out individuals or groups for any reason

. If protesters refuse to vacate private property, they can be arrested for trespassing.

But what about protests in public streets and town squares? The Supreme Court has found that cities and municipalities have the right to restrict the time, place and manner of public demonstrations. These restrictions on the freedom of assembly are constitutional as long as they are “content-neutral,” meaning the same rules are applied to everyone — from Girl Scouts to Neo Nazis — regardless of the content of a group’s message

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Most cities require permits for parades, protest marches and picket lines. They also have laws against blocking traffic and making excessive noise after certain hours. Groups that break those laws can be forcibly dispersed or arrested, even if their speech is otherwise protected.

An illustration of England’s King John signing the Magna Carta in 1215. The document was the first ever signed by a king of England to protect the rights of his subjects.

Hidden among the more prominent rights guaranteed by the First Amendment is the right to “petition the government for a redress of grievances.” Despite its low profile, the right to petition has a long and honored pedigree dating back to the Magna Carta in 1215

. The right and ability to complain to government officials is a critical function of a representative democracy. Whether or not that official actually listens, well, that’s another story.

To comply with the First Amendment right to petition, government entities and agencies must provide a way to contact them. Every government office, including the White House, has e-mail addresses and phone numbers to submit comments and questions. But nothing in the First Amendment — or anywhere else in the Constitution — requires that the government answer those requests or even read them

. Instead, a democratic system relies on the voters to remove officials who are unresponsive to public opinion.

President Barack Obama shares some thoughts with Charles King of Housing Works, who heckled the President during his remarks on the National HIV/AIDS Strategy in 2010.

The framers of the Constitution were most concerned about government censorship of political opposition. But if the First Amendment guarantees the right to free speech, then it also prohibits any action — not just by the government, but also private groups and individuals — that aims to censor or silence unpopular viewpoints.

Here’s an example. A Chinese dignitary is invited to a college campus to give speech. Midway through her remarks, a student activist begins to boo and yell about China’s human rights abuses. The protester is so loud that he drowns out the dignitary’s speech entirely.

This is called a heckler’s veto, when the opinion of one angry person — or a group of people — tries to silence all debate. The term arose from a series of Supreme Court cases in the late 1940s. In each case, the police detained a public speaker out of fear that his speech would provoke a violent reaction from the crowd

. The court sided with the speaker, arguing that it’s the police’s duty to protect free speech even if it incites anger in others. The “heckler” — whether it’s a single protester or an angry mob — does not have the right to “veto” opposing viewpoints.

“A function of free speech under our system of government is to invite dispute,” wrote the justices

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New York Times reporter Judith Miller testifes before the Senate Judiciary Committee on reporters’ privilege legislation in Washington, 2005.

The Founding Fathers viewed a free press as one of the most effective political watchdogs. But if reporters are to do their jobs well, they need avenues for acquiring sensitive or confidential information

. In some cases, this involves an inside source that “leaks” the information under the condition of anonymity. Most U.S. states have passed shield laws that protect journalists from having to reveal their sources, but the federal government offers no such protection.

Back in 1972, the Supreme Court ruled that a reporter had to testify before a grand jury if he or she witnessed a crime. In 2005, that ruling was reaffirmed when Judith Miller, a reporter for The New York Times, spent 85 days in jail after refusing to name a confidential source who had leaked the name of an undercover CIA officer — itself a federal crime

. Journalists continue to lobby for a national shield law to safeguard reporters against the very real threat of imprisonment for protecting a source.

Back in 1922, women were arrested for defying a Chicago edict banning abbreviated bathing suits on beaches.

Fashion is a wonderful example of free expression. Although the First Amendment doesn’t mention “freedom of expression” by name, the courts often lumps together the freedoms of speech, religion, press, assembly and petition as forms of expression

. So if you’re free to express yourself through your clothes, what about clothing that’s offensive, revealing or nonexistent?

Here again, our First Amendment freedoms are limited by location. The Supreme Court has ruled that private property owners can kick people off the premises for wearing an offensive T-shirt or no shirt at all

. For instance, a restaurant is within its rights to put up a sign saying, “No Shirt, No Shoes, No Service.” Similarly, individual states and cities can set their own public nudity and decency laws that dictate what people can legally wear or not wear in public.

In a 1991 case, the Supreme Court affirmed that states also have the right to restrict nude dancing in adult clubs. The justices ruled that public nudity laws apply even during private shows. It’s not a restriction of the freedom of expression, justices concluded, because the dancers are still free to express themselves erotically wearing a “scant amount of clothing”

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