Masks, Marches, and Mass: Teaching the Truth About 1st Amendment Freedoms

A protester flies an American flag while walking through tear gas on July 21, 2020 in Portland, Ore. (Nathan Howard/Getty Images)

First Amendment freedoms are so often spoken of in relation to our American ideals, especially right now. Throughout the pandemic people have been furious about events being cancelled, about not being allowed to go places like bars or churches, or being asked to wear a mask. I understand those frustrations only slightly generally being an introvert myself. Some though have claimed it is infringing on their 1st Amendment freedoms. Others have sought to have their voices heard marching in the streets, to state houses, and up to courthouse steps sure that they were protected by their right to speak and assemble. Clearly vandalism remains a crime, a non-violent one, but a crime nonetheless. But there are are a number of videos of officers or federal troops arresting protesters, firing rubber bullets, or using tear gas on protesters who didn’t seem to be committing any discernible crimes. They similarly claim it’s a violation of their freedoms. But people are free to do whatever they want, right? No, a ‘free country’ does not mean freedom from consequence nor does it mean you get to do whatever you want especially in someone else’s place of business or home or when it infringes on their freedoms. But let’s be clear that freedom from distraction, annoyance, or not seeing/hearing things that upset you are not ones enshrined in the U.S. Constitution (or any other national charter I’m aware of). But what is right? What does the law say? What about 1st amendment freedoms at school? What do school leaders need to know and educators need to teach about our rights? Are those rights for everyone? What are our rights elsewhere?

“Everyone is in favor of free speech. Hardly a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.”
—Winston Churchill

A little history and Context

In the modern era of tweets and likes, it’s hard to know where 1st amendment protections end. So let’s head to the start. In the summer of ’87 (1787), an incredible but flawed document known as the U.S. Constitution was seeking approval across the 13 states to help form the blueprint of a new nation formed with some novel ideas. To correct some of its initial flaws they put together the Bill of Rights to specify individual rights. Now this was not an entirely original idea. The authors pulled ideas from the Magna Carta, the 1689 English Bill of Rights, and especially the natural rights (i.e. social contract theory) eschewed by a couple guys named Hobbes and Locke who differed in how nice they thought people generally were. They threw in some Rousseau and a few patriotic ideas culled from their issues with good ole’ King George, and bam, with Madison penning those first 10 Amendments the American people were on board by ’91.

Now I’m not going to dive into the various flaws in the document that required amending later or the innate human flaws of the authors and framers that weren’t even addressed as it was signed. That’s a whole other post.. But the idea was that there were certain rights and freedoms that were innate and didn’t require the government to make true. But since they were a bit wary of government leaders at that time, the Anti-federalists thought it would be a keen idea to spell it out.

Freedoms outside America

Since then a few other countries thought that constitutional democracy idea might be good, do that idea (and a little American imperialism and commercialism) made it more universal. Some sought to improve or alter some of the ideas. In fact, though some U.S. citizens would likely debate the results, but the U.S. is no longer in the top 10 when level of freedom is ranked. Some of that relates to economic freedoms and some of it relates to racial/gender issues. There are certain freedoms though that some of those other nations do not enjoy. For example, in Germany hate speech is not considered a protected form of speech like in the U.S. Given their history, that might make some sense. Worldwide though we can see the example that began here. For example, the United Nations adopted the Universal Declaration of Human Rights. Being more recent it has 30 articles, but it starts off similarly.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Universal Declaration of Human Rights

An Overview of the 1st Amendment

There are a number of freedoms covered from the hotly debated 2nd Amendment, the ever popular courtroom drama of the 5th Amendment, and thoroughly underestimated 10th. But we’re going to focus on the 1st which has a lot going on all by itself. So let’s just just start with the text itself.

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.
Amendment I of Bill of Rights of the United States of America

What it covers

So that covers five basic freedoms: religion, speech, the press, assembly, and and the right to petition the government. And though some may try to argue otherwise, there is no “legal age” you have to reach to exercise your 1st Amendment freedoms nor is there a citizenship requirement. Columbian tourists, indigenous tribes, and and even those who have entered the country illegally enjoy those same freedoms. Though denying some of those freedoms have been used to present foreigners from obtaining visas (Kleindienst v. Mandel (1972)) so there are limits. There are also a few limitations on all of those freedoms for citizens too though. So what do they really cover? (I highly recommend Oyez for research on Supreme Court cases.)

Religion

First, this means there is no national establishment of religion. So despite arguments that America is a “Christian nation” or the strong belief systems of many Founding Fathers and presidents, the government and its connected institutions, including public schools, are set up to be secular. Yes, you can argue that most Americans identify themselves as Christian, but that is not by law. This was while some colonies had established official churches and used tax dollars to support them. And those who dissented could be tortured and killed. So there isn’t supposed to be any religious test for government office or citizenship. In fact, anti-Catholic bias and fear of him being beholden to the Vatican nearly derailed Kennedy’s rise. That means the government and religious institutions are not to commingle. It can be argued that it is good for both so the government can’t interfere in your worship and worshipers cannot co-opt the government to hold down those deemed non-believers.

Is America A Christian Nation? with flag and cross background

This right lets people freely exercise their religion (with some limitations). That means you can be Christian, Muslim, Zoroastrian, athiest, Wiccan, or a Pastafarian worshipping in the Church of the Flying Spaghetti Monster (a real thing). And it doesn’t matter if your religion has 3 or 3 billion followers. So while the Puritans sought to make Massachusetts pure, Roger Williams won out with the freedom of Rhode Island. So you can teach your own children in the path of your religion, but public schools cannot have their teachers mandating or advocating a particular religious affiliation.

It hasn’t been perfectly practiced like when Mormons were slaughtered in Missouri, Native American students were prevented from practicing their faith in an attempt to “educate and assimilate” them, or more recent talk of “Muslim travel bans”. But there have been some key decisions expanding religious freedoms.

Stores can be closed on religious holidays – Braunfeld v. Brown (1961)
States cannot require a person to abandon their religious beliefs in order to receive benefits – Sherbert v. Verner (1963)
The state should not be involved in funding religious institutions – Lemon v. Kurtzman (1971)

Speech

“To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.”
Frederick Douglass, 1860.

Freedom of speech in America covers a wide array of things. It can be a typed essay, a spoken word, an arm band, or a flag. Students protesting for environmental protections is included and so is flag burning and so is a Ku Klux Klan rally. Obviously some of those images may strike you and your sense of moral justice differently. But according to the U.S. Constitution and the Supreme Court even hate speech and symbolic gestures are covered. So though, like Jake Blues, I too hate Illinois Nazis (a bold stand I know) they too have the right to speak in America. And that is distinct from some European nations. There are some past cases where free speech was limited, but we seem to be leaning in the direction of greater freedom.

We have made errors here too. In the past the U.S. has actually limited speech in war time in ways I don’t think it should have. But now the key questions relate to the ongoing protests, the pandemic, and now post offices?! Questions about marching and permits are more about assembly (below). Whether masks can be mandated or whether a student cursing out a teacher is included is all about speech though. So too are the issue of censorship on college campuses, bans on social media, or kneeling during an anthem matters of free speech. So here’s some of the rights you get.

Not to speak or recite the Pledge of Allegiance (I wish I had known this when I got in trouble for goofing around during the pledge as a kid and my teacher made me write it 100 times) WVBOE v. Barnette (1943)
Words that lead to anger or violence can still be protected – Terminiello v. City of Chicago (1949); Brandenburg v. Ohio (1969)
You cannot be fired for complaining about your school board – Pickering v. Board (1968)
Students can wear black armbands – Tinker v. Des Moines (1969).
You can personally have obscene material – Stanley v. Georgia (1969)
To use certain offensive words and phrases to convey political messages. – Cohen v. California (1971)
To contribute money to political campaigns – Buckley v. Valeo (1976)
To advertise – WVBoP v. Virginia Consumer Council (1976)
You can’t remove books from school libraries because of content (though you can decide not to purchase them initially) – Island Trees School District v. Pico (1982)
To engage in symbolic speech, burning the flag – Texas v. Johnson (1989)

Press

Despite the vilification of modern media the press is considered an essential tool for free speech and a functioning democratic republic. That is because it is created for the governed to be informed to help them know the actions of those in power. That knowledge, which you could argue is harder to come by in a sea of willing and sometimes willfully false voices, is still crucial to keep the government accountable to the people. It is why they are sometimes referred to as the Fourth Estate or fourth branch of government. They are watchdogs investigate and report on government wrongdoing as well as share a broad range of ideas. That’s at least the idea to help them stand as a bulwark against tyranny. And it was originally the vehicle for America’s Revolution to begin and spread.

Now biased and yellow journalism have existed longer than this nation even if the terms to describe them as “fake news” have changed. The Boston Gazette had the likes of Franklin and Sam Adams writing of patriotic opposition to the crown in the early 1700s while the Boston Gazette remained loyal to the crown. So even the original newspapers had “their side”. That phenomenon is not new. It’s a much longer discussion, but the quality of journalism has little bearing on the need of this freedom to exist. In a modern example, a New York federal judge ruled that President Trump violated the rights of seven Twitter users when they were blocked from Trump’s Twitter account after being critical. So we have new challenges too.

Let’s begin with the fact that, though leaders may not like it, media is free to criticize the government. In 1735, long before we were a nation, John Peter Zengee, printer of the New York Weekly Journal, was tried for libel for criticizing the governor. He argued the truth as a defense. This didn’t stop the failure of the Sedition Act of 1798, which allowed for the criminal prosecution of those who mocked the president or the government. In a regression, Adams used it to convict Jefferson loyalists perhaps echoing chants of “lock them up”. More freedom failures. But through the imperfect press we seek to shine a light on governmental inequity or ineptitude. And that makes it crucial and also makes it frequently challenged and a difficult idea to understand in the age of social media. Here though are some key tenets.

The government can’t (in nearly all cases) censor or prohibit a publication in advance – Near v. Minnesota (1931); New York Times Co. vs. United States (1971); Nebraska Press Association v. Stuart (1976)
The bar for claims of libel is high – New York Times v. Sullivan (1964); Curtis Publishing v. Butts (1966)
The right to attend criminal trials Richmond Newspapers v. Virginia (1980)
Cameras are generally allowed in court rooms – Chandler v. Florida (1981)
All of us can take photos in public locations even of other people. You can even sell photos of someone else’s kid as art pieces despite what an officer once tried to tell me at a public park. This though is a question of courtesy more than law.
Many states only require 1 party consent to record conversations

AssemblE

One could argue that our nation borne out of the violence of public assembly and protest. Most historians would even agree that events like the Boston Massacre and the Boston Tea Party included items thrown at soldiers and vandalism of property. That seems reminiscent of some modern protests that are railed against. That’s not to say those acts aren’t illegal, but they are in line with other historic American events. And on the right side of the law is not necessarily on the right side of history. MLK and John Lewis were legally exercising their right to assemble on the Edmund Pettus bridge when the figures tasked with executing the law violently assaulted them. And that was mirrored throughout the civil rights movement with arrests at lunch counters and on busses. In decades prior women were arrested protesting in front of the Triangle Shirtwaist Factory while legally protesting working conditions. And only after 146 people died in 1911 due to those conditions did America have the stomach to change those working laws.

So this freedom is innately tied to free speech as people generally gather to speak about or protest an issue. At the same time the the Triangle garment workers protested there were simultaneous protests for women’s suffrage as well as socialism (tied heavily to the worker’s movement). People also gather for a wide array of other issues that can be limited sometimes, like in a pandemic. But I’ll discuss the limitations later. In a modern context this can include events like the Women’s March or the ‘Liberate Minnesota’ rally. It can also be going to church, a club meeting, or a game night with friends.

Now as protesters are being dispersed, teargassed, beaten we are reminded of the past. Where can we legally march? Do we need a permit? That depends really. Yes, city’s can set ordinances for large gatherings, but spontaneous responses to current events can supersede that. Also the government can’t make the fees or permits overly burdensome. So requiring millions in insurance must have exemptions. Here are some key assembly right you have.

Public squares are free from most restrictions
Government cannot limit the size – Housing Works, Inc. v. Safir (2000)
Private property can sometimes be legally open to protest – Marsh v. State of Ala., (1946)

Petition

It is important to note that that though assembly and petition were originally thought of as independent that changed after U.S. v. Cruikshank (1876), incidents surrounding a racist massacre in Louisiana (it seems like there’s been a lot of those in American history), showed the two rights were related. You could also argue most of these freedoms are interconnected which is perhaps why they are all in one Amendment. But I split it here for clarity. So send your problems to your leaders. Now you can even d it with ResistBot.

You can’t be forced to share the names of attendees – Bates v. Little Rock (1960)
Your petitions can address injustice by the very government that would stop it – NAACP v. Button (1963)
Governments can’t disperse a legally marching crowd – Edwards v. SC (1963), Cox v. Louisiana (1965)
States can’t stop people circulating petitions – Meyer v. Grant (1988)
Petition circulators don’t have to be registered voters, wear name badges, or disclose information about themselves – Buckley v. American Constitutional Law Foundation (1999)

What It Doesn’t

So it’s clear that any time a person exercises of one of these freedoms impedes someone else’s it’s likely to cause a legal conflict. A lot of people famously remember the catchphrase about of not being able to shout fire in a crowded theatre from Oliver Wendell Holmes, Jr.. But Christopher Hitchens argued that Holmes was wrong as he argued that same idea while he was limiting free speech when there was a genuine “fire in our democratic institutions”. There are times that is obvious, but when it isn’t the courts become involved.

Bart Simpson writing the 1st Amendment doesn't cover burping on a chalkboard

Some limitations are locational. What a private business or school can mandate is different from what the government can. But it is clear the limitations are “well defined and narrowly limited”. At times the U.S. has banned and burned books like the bawdy novel ”Fanny Hill” that imagined what a prostitute’s memoirs might sound like. From Adams’s effort to silence his critics to the Sedition Acts of 1918, the U.S. has at times been quite restrictive. Censorship advocates tell us we need to balance the freedom of speech with the harm that speech does. This is arguable philosophically, but it is wrong legally. Here’s the law on it.