First Amendment things to knowFirst Amendment graphic at johnbandler.com

by John Bandler

First Amendment Q&A

  • What is the highest law in the U.S. regarding government's restriction of speech and expression?
    • The First Amendment of the U.S. Constitution
  • What does the First Amendment protect against?
    • The First Amendment is a limit on the powers of government to restrict speech, expression, and religion.
  • If a judge decides police obtained evidence unlawfully, what might the judge do?
    • Suppress (exclude) the evidence pursuant to the exclusionary rule and the Fourth Amendment.
  • What document contains the fundamental principles underlying all U.S. laws?
    • U.S. Constitution
  • Why are case decisions important?
    • They establish law, precedent (stare decisis)
  • What concept describes the weight given to a prior decision by a court?
    • Legal precedent (stare decisis, authority)
  • The First Amendment was ratified in 1791, thus is couldn't possibly be applied to the complicated issues we face today regarding online speech. True/False
    • False
  • The First Amendment only says what Congress cannot do, but the the Executive and Judicial branches can do whatever they want. True/False
    • False

The First Amendment

Here's the First Amendment (I added the line breaks to separate each phrase).

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.

Interesting 1st Amendment facts and conclusions by John

  • Ratified 1791
  • Word count: 45
  • Words unchanged since 1791 (232 years)
  • Number of words written since 1791 about what these 45 words mean?  Millions and probably billions!
  • The phrase "free speech" means totally different things to different people.
  • To be more precise, instead of talking about "free speech", first consider what the First Amendment protects.
  • The First Amendment protects from government limitations upon speech.
  • Government limitations upon speech could be criminal (e.g. an arrest and criminal prosecution based on speech or expression)
  • Government limitations upon speech could be civil (e.g. using the power of the civil courts to make someone pay money because of their speech or expression, such as in a defamation lawsuit (libel, slander).
  • One of my frequent corrections is reminding students to capitalize First Amendment, since it is a proper noun.

Speech categories and my diagrams

Let's outline a way to categorize speech, starting with the biggest category (everything) and then smaller and smaller subsets of that.

I think my diagrams help categorize different types of speech, and what consequences might result from that speech.

  • All speech (any speech or expression)
  • Annoying speech (speech that annoys at least one person)
  • Unfriending speech (speech that annoys a person enough that they take some type of action, like their speaking, unfriending, boycotting, etc.)
  • Protected speech (speech that is protected by the First Amendment in some way)
  • Civilly actionable speech (a very small subset of the above, speech that someone could sue for and make the person pay money in damages)
  • Criminally actionable speech (a tiny, infinitesimal subset of the above, speech that could get someone arrested and prosecuted)

John's diagram part 1 - the categories

Speech Categories and the First Amendment

Here we show the five main categories, but they are not to scale, they are big enough so you can see the color scheme, the labels, and a little bit of description.

The categories are:

  • All speech
  • Annoying speech (might annoy someone)
  • Unfriending speech
  • Civilly actionable speech
  • Criminally actionable speech

John's diagram part 2 - "Protected speech"

Speech categories 1st Amendment Protected or Not

Now we are highlighting "protected speech" with this diagram.

Of course, this is a bit of a simplification.

Note that certain speech might be "protected" from any criminal prosecution, but fair game for a criminal prosecution.

Remember the key point which is protection from government interference.

Just because speech is protected from government interference does not mean the speech can be made without any type of consequences at all. People might protest, boycott, and etc.

We can debate "cancel culture", but if we are talking about the First Amendment, we need to remember the First Amendment is about what government can do, not about what "society" and individuals can or should do.

John's diagram part 3 - closer to scale!

Speech categories - a better scale?

This diagram is a little bit closer to scale.

The main takeaway here is the vast majority of speech is protected by the First Amendment. A small sliver could be subject to valid civil claims, and a really tiny piece could be criminally punished.

Let's get lawyerly

[This section is a work in progress]

Court decisions and the law need a process for deciding whether statements are criminally actionable or civilly actionable. And for deciding whether a government action regarding speech is lawful or violates the First Amendment.

So here are some principles.

  • Is the government restriction on speech "content neutral" or "content based"?
    • Content neutral means the restriction does not depend on what the content of the speech is
    • Content based means the restriction is about certain types of speech
  • Certain speech restrictions will get "strict scrutiny" by the courts
  • If the government restriction on speech is not content neutral, it needs to be narrowly tailored to serve a significant government interest, and will get strict scrutiny
  • Government may restrict or punish speech that presents a "clear and present danger" or "imminent" danger
  • "Fighting words" are not protected speech. Fighting words are words that inflict injury or tend to incite an immediate breach of the peace. (Chaplinksy v. New Hampshire, 1942)
  • Defamation: A civil cause of action for defamation. Defamation can include libel (written speech) or slander (spoken). A plaintiff must establish that the defendant said something false, and that it caused financial harm (damages). If the plaintiff is a public figure, they must also show actual malice.

First Amendment Chronology and Case Progression

[This section is a work in progress]

An evolution of law and interpretation.

First Amendment ratified in 1791

Interesting concepts and cases that touch upon the First Amendment

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The U.S. Supreme Court provides greater protection for speech about public officials and public figures, requiring a defamation case to show "actual malice". Actual malice meaning the person knew what they said was false, or said it with a reckless disregard for whether it was false.

There is a lot of speech out there

There is a lot of speech out there, and a lot of it contains false information, conspiracy theories, hateful speech, criminal speech, and more. Whether for profit, political gain, nation-state advantage or simple ignorance, there is lots of propaganda, misinformation, and disinformation.

Let's hope enough people will seek, rely upon, and act upon reliable information, facts, logic, and reason.

Disclaimer

These are short Q&As and summaries cannot be expected to capture all nuances of all terms or decisions.

Purpose of this page

This page is a study aid for my students, and a place for me to draw quiz and assignment questions from. The goal is for students to learn important concepts, especially foundational concepts that provide footholds for learning more complex concepts.

Links

This page is hosted at https://johnbandler.com/things-to-know-first-amendmen, copyright John Bandler, all rights reserved.

Posted 11/28/2023 based on years of teaching. Updated 11/28/2023