From the NFL national anthem saga to the crucible of college campuses, cries of “First Amendment free speech” are thrown around like a pop slogan, while the depth and meaning of the right memorialized in the Constitution are blurred to the point that it’s nearly unrecognizable.
Lost in the mostly uncivil current discussion is the full power — and real intent — of what the Founders called “the principal pillar.”
A quick primer, so we have a basis to properly discuss what is “protected free speech.” The First Amendment to the U.S. Constitution is part of what is known as the Bill of Rights. The First Amendment, like much of the Constitution, specifies the rights of the individual (speech, religion, press, and assembly) as immutable facts, but it does so in the context of restraining the power of government over those rights. In other words, the right to free speech is not debatable; the power of government over that right is limited.
The Supreme Court has held over the years that flag burning, public displays insulting American institutions, and published documents critical of America generally and the government, in particular, are constitutional exercises of free speech — and that they are therefore “protected” from government-imposed limits. They are not protected from public scorn.
Likewise, the Supreme Court has held that so-called “reasonable time, place and manner” restrictions on free speech are constitutional. Keeping potentially violent protestors separated while they demonstrate at the same location (see, Charlottesville, Virginia) is one of those vital constitutional limits a government can place on free speech.
What the First Amendment does not guarantee, or even address, is protection from the private consequences of public speech. There is no magic to it. Merely invoking the phrase “free speech” does not mean that everyone else has to take a knee. After all, every American has the same right, particularly when they disagree.
Employers may, under many circumstances, fire or punish employees who choose to post inflammatory remarks online or engage in public demonstrations that the employer finds objectionable, like taking a knee during the national anthem. Sponsors may abandon entertainers or athletes. Future employers may choose to avoid those with a track record of speaking out, and private organizations may shun them from participating.
When the clash of ideas reveals a particularly unpopular position, the majority may demand that some price be paid — and they have the right to do so. Even a president can express his opinion that he’d love to see someone get fired. Costs can be exacted for exercising free speech rights, because the First Amendment is a limit on government power — not people power. This is the “marketplace of ideas” developed by John Milton, John Stuart Mill, and adopted by free speech proponents in Supreme Court cases.
So into the maelstrom goes the reality of First Amendment “free speech,” whether on college campuses or at our sports stadiums.
As U.S. Attorney General Jeff Sessions made clear this week, thirty-three percent of public universities (which are government entities) have speech codes that “constrict free speech . . . under the First Amendment.” He warned schools and their leaders to ensure that freedom of expression is protected, which particularly includes public universities as arms of the state. The first question in First Amendment legal analysis is whether the government has used its power to limit or otherwise violate the fundamental right to speech. As Sessions said, speech is under assault on college campuses, whether by the heckler’s veto or by ideological litmus tests. On public campuses, those assaults are unconstitutional.
And then we turn to the NFL flag controversy. Despite the failure of a relatively small bloc of athletes and league representatives to articulate a coherent rationale for why players would take a knee, and what it means to do so, our First Amendment analysis merely concludes that the government cannot enact policies that prohibit them from doing so.
What the band of athletes and their media defenders have failed to comprehend is that everyone else has the equal right to protest against their protest, including the President of the United States. The knee-takers do not have the right to be protected from the consequences — loud, public consequences — of their actions in the American marketplace of ideas. It is only by understanding what “First Amendment free speech” actually means that protestors, counter-protestors, and everyone else with an opinion and a Twitter account will best guide their choice of speech. When it comes to the First Amendment, don’t believe the hype.
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general. To read more of his reports — Go Here Now.
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