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.
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.)
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.
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)
“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)
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
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)
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.
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.
So clearly if your religious beliefs caused you to engage in human sacrifice or cannibalism, you would not be protected from criminal liability. Similarly if your religion involved dancing with snakes or burning an offering, you would still be liable if someone got bitten or a building got scorched (or collapsed in an ironic “act of God”). Some of that is even related to clergy malpractice laws which relate to many cases of sexual misconduct in churches. Those cases seem obvious, right? So clearly violence and most discrimination aren’t protected. And your religions can’t endanger public safety. Though some discrimination is allowed. For example, a religion can choose not to ordain women and job bias laws do not automatically protect Catholic school teachers who aren’t aligned with the school/religion’s dogma.
One of the biggest questions most recently though is about why medical facilities (like abortion clinics) can remain open but churches cannot. But some of those same churches were hotbeds for outbreaks in the midst of the coronavirus pandemic. In a key California (below) decision and a less controversial one in Illinois, the court upheld that the right of the state to protect its citizens overrode preventing churchgoers from their houses of worship, especially with available technology available to continue many of the religion’s practices.
- Polygamy can be forbidden. – Reynolds v US (1878)
- You probably can’t have religious displays on state grounds (this one’s a little complicated but it depends on the nature and context of the display) – Van Orden v. Perry & McCreary County v. ACLU (2005)
- Churches cannot be exempted from health mandates – South Bay United Pentecostal Church v. California (2020)
Some freedom of speech can be limited during wartime. At least that’s what was stated in previous decision though I’m not sure that restriction still stands even if burning draft cards may still be criminal. The government can restrict expressions that “would create a clear and present danger that will bring about the “substantive evils”.
What we say is crucial to expressing ourselves, our views, and our goals. As an educator I esteem advocating student voice above almost all things (apart from student safety). While the rights to free speech aren’t the same in the workplace or in school, you are still allowed to talk about your wages and working conditions. That’s protected. But if you decide to engage in hate speech, your employer is free to fire you for creating a hostile work environment or because of some morality clause in your contract. Also private businesses aren’t obligated to post your words. In the same way the you can’t make Wal Mart hang a skinheads rally poster next to the missing dog sign or make NBC air a commercial about your sexual proclivities, a digital space from a private company like Facebook or Twitter can freely prohibit anything they like. The main reason they allow a lot, even controversial posts, is because it drives traffic and profit.
Even out in the open freedom to speak does not mean freedom from consequences for that speech. If you say something hateful or rude, someone else can retaliate in kind with their words. Your family, friends, and employers are not obligated to remain a part of your life if they find your beliefs and words repulsive. The government can’t restrict your speech, but I’m certainly within my right to kick you out of my house if you bug me.
What We Wear
As far as dress codes as a form of free speech, the location matters. You might get away with a bong on your t-shirt in public, but it can legally be banned at schools or a private business. Neither does free speech protect public nudity. Right now we have people arguing that they can’t be forced to wear masks. Despite what some Costco shoppers think, that’s not really true. Businesses and schools can regulate clothing, hair, tattoos, and other factors of appearance. Some more formal places even require a jacket or tie.
This is all legal as long as the requirements cannot be shown to discriminate based on religion, sex, race and national origin. So if you allowed baseball caps but not yarmulkes, you’d have an issue. Similarly, if your requirements unreasonably affect someone with a documented disability there can be an issue. That doesn’t mean you can’t require things. For example, a man with blood pressure issues can be made to wear shoes during a portion of the work day even if it leads to mild discomfort. But reasonable accommodations are required. For example, see-through masks, face shields, or adaptive masks can be suggested for people with hearing impairments, respiratory issues, or autism respectively. That may also be why you see some less reputable folks putting their underwear on their face in a form of either laziness or passive-aggressive protest. As for other limitations on speech, they include the following.
- Does not protect sedition and it can be limited during wartime – Schenck v. United States (1919)
- Did not protect an anti-war speech designed to obstruct recruiting – Gitlow v. New York (1925)
- Does not protect “fighting words” – Chaplinsky v New Hampshire (1942)
- Does not protect burning draft cards – United States v. O’Brien (1968)
- Does not protect obscenity – Miller v. California (1973)
- Does not protect a graphic sexual speech in school – Bethel School District v. Fraser (1986)
- Does not protect free access to pornography at public libraries – United States v. American Library Association (2003)
- Does not protect a public school student’s right to display a banner reading “Bong Hits 4 Jesus”. Students political speech is outweighed.
- Does not cover defamation or fraud
- Does not cover communication involved in the commission of a crime
It’s a very high bar to limit the press in America especially for a public figure. Not only must they first ask the news to publicly retract the information, but after that it requires that the author knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate. These protections though are similar to those for the rest of the public.
- Protecting sources doesn’t protect them being compelled to testify – Branzburg v. Hayes (1971)
- The bar for defamation isn’t unlimited & its lower for private citizens (not public figures) – Gertz vs. Robert Welch, Inc. (1974)
- It doesn’t protect newspapers from litigation for breaking confidentiality – Cohen v. Cowles Media Co. (1982)
- Schools can limit their newspapers in line with school policy – Hazelwood School District v. Kuhlmeier (1988)
Obviously when it comes to assembly location matters. You clearly can’t break into and assemble in someone else’s house or business. You can’t break the law and steal or vandelize as you gather. Yes, some may wisely argue that a nation whose laws have subordinated large groups of Americans is not just and morally needs to be ignored. But I recall the John Lewis’s “good trouble” didn’t require further illegal action from him though he was often arrested.
In some cases, the government can require a permit as a condition of protesting on public property. For example, the government often can require a permit for parades in the streets, given the impact on vehicle traffic. Likewise, governments can require them for large protests in public parks and plazas, in order to ensure fairness among the various groups seeking to use the site.
On the other hand, the First Amendment generally bans government from requiring a permit when one person or a small group protest in a park, or when a group of any size protest on a public sidewalk in a manner that does not burden pedestrian or vehicle traffic. Often these freedoms are connected too since governments may block online speech or websites to prevent people from coordinating assembling. But that kind of crackdown is not supposed to be legal in America.
- It does not include the right to riot, destroy property, harm others, or use violence while protesting
- A government may set rules on where, when, and how public protests and other gatherings can take place. The rules must be reasonable, for legitimate safety concerns, and not be biased based on content.
- In some cases permits are required – Cox v. New Hampshire (1939)
- Buffer zones may be required for safety – Hill v. Colorado, (2000); McCullen v. Coakley (2014)
Again I will remind you of the connections and overlap between many of these freedoms so the rare exceptions are similar, but the ones for petition generally have to do with time, place, and manner restrictions. For example, you probably wouldn’t get away a massive protest inside a private restaurant because you think they charge too much for appetizers. But then again you may be okay protesting outside that same restaurant because they mistreat their workers. A lot of those requirements have to do with permitting.
- Governments can require permits for large gatherings (there are exceptions) – Cox v. New Hampshire (1941)
- Companies can’t use petitions to manipulate markets – California Motor Transport Co. v. Trucking Unlimited (1972)
- It doesn’t provide absolute immunity for libelous petitions – McDonald v. Smith (1985)
- The government can release you name on a referendum or petition – John Doe #1 v. Reed (2010)
The 1st Amendment in Schools
Schools have long been a hot bed for free speech and assembly arguments as you can see above. We’ve also seen classic books like The Adventures of Huckleberry Finn, To Kill a Mockingbird, and even the Harry Potter series get banned or burned for various reasons. So what should teachers and administrators keep in mind?
The U.S. Supreme Court ruled that students and teachers do not shed their First Amendment rights at the school gate, but there are limitations if the freedom is likely to disrupt school, is obscene, or promotes drugs or criminal behavior. Those limitations though cannot discriminate against people of color, women, men, LGBTQ groups, immigrant groups, people with disabilities, or pregnant students.
Censorship Banning Books
Obviously schools can have certain protections in place like blocking explicit internet content. And they also have to have certain other protections to keep a student’s data private according to COPPA, FERPA, and other guidelines. Censorship though has long played a role in the American story. As for books, even though courts have limited a school’s ability to remove books from the library, school’s still retain the right remove books deemed “pervasively vulgar or “educationally unsuitable.” Schools additionally still retained the right to choose not to acquire certain books.
In a world where kids were now being strapped with bulletproof backpacks to prevent school shootings, referees horribly forcing students to cut their hair, or rules that perpetuate gender stereotypes or rape culture we are reexamining what dress codes work. But I’ll say right away that if a school deems that not wearing a mask would lead to any student fear and would disrupt class, they can mandate masks. I give examples above of exemptions and alternatives for students with IEPs or staff with disabilities, But it is legal and not an infringement of 1st Amendment rights. So the schools that have long prevented short skirts, dreadlocks, or sleeveless Ts now saying they can’t mandate masks are legally wrong.
Speech On Campus
All the freedoms continue for students on a campus. Some would argue it is those very freedoms that allow for the quality debate and open communication necessary for the education of an open society. Threats and harassment are obviously not protected, but hateful or bigoted speech still is. Yes, schools can maintain codes of conduct that remove students from speaking or acting inappropriately in certain environments or threats, or that creates a pervasively hostile environment for vulnerable students. But merely offensive or bigoted speech does not rise to that level. But schools are also not obligated to provide a platform for anyone. They can invite or disinvite anyone they would like. And students can protest any of those invitees. So while schools can expel students for speaking or acting out in ways they deem unseemly, the very nature of open debate means they should attempt to limit those restrictions to only where truly necessary.
So there are some limitations and ways schools should consider these freedoms, but there are also ways to to allow and empower students activism and engagement in their communities. That can even involve some fun and educational social studies games. Isn’t our main goal as educators to integrate our students meaningfully into society while also inspiring them to make this world a better place? How exactly we can make it be better is up for debate. But isn’t that the whole point of the 1st Amendment to begin with and why we should all learn more about it. I hope this helps with that. And, if not, you’re free to say so.