Friends! Romans! Countrypeople! Gather round for another fun review of the First Amendment, which may be one of my favourite amendments, but also one of the most misunderstood. This is of particular concern at the moment given the high stakes for free speech and those who want to exercise their right to dissent, so I wanted to take a moment for a quick refresher. Disclaimer: I am not an attorney, let alone a constitutional law expert, so please consider this a general opinion based on my understanding of the law. Honestly, if you’re in the position of needing a First Amendment attorney I don’t even know what you’re doing here, go talk to the nice people at the ACLU.
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.
Questions of free speech and censorship seem to be swirling around rather a lot these days from people who have an imperfect understanding of what is covered by the First Amendment versus things that probably are versus things that are definitely not. Here’s the deal: This is an amendment designed to ensure that we as individuals and we the press (for those of us who are also press) can say things without fear of retribution, though there are limits. Like some forms of hate speech, and saying things that are not true with the intent to damage someone. Libel law in the U.S. is quite complicated, and more strict than in some regions of the world to ensure that people don’t use libel suits in an attempt to suppress speech, which they do, more about which in a minute.
Let’s take some…examples of situations where people screaming about censorship have come up lately:
Is it censorship for readers to identify problems with a current or upcoming title and voice their displeasure, whether it be in the form of articles, letters to the publisher, critical reviews, or campaigns to get a publisher to temporarily halt production? No, no it is not. Individuals are not governments, nor are publishers. If a publisher decides to pull or hold a title in response to criticism, that is not censorship in the publisher’s part or that of readers. If the government stepped in and said ‘you shall not publish this title,’ that would be censorship.
Is it censorship for me to block you on Twitter? No, no it is not. I am both not a government, and not infringing on your right to express yourself. You can’t follow me or see my tweets, and vice versa, but you are welcome to merrily keep on tweeting as well as expressing yourself via other media, including email if it’s really so urgent that I see you calling me a fat retarded cunt.
Is it censorship to file a libel lawsuit against a media organisation with the functional hope of forcing that publication to close because it cannot afford legal fees or the cost of a settlement? No, but it’s pretty shitty. This is a tactic that has been used multiple times in the last year in an attempt to silence press organisations that say things people don’t like. The fact that it seems to be getting common again should be cause for concern, because while it isn’t government sponsored, it has a chilling effect.
Is it censorship for a president to refuse to hold press conferences, or to limit media access to those conferences, often in arbitrary ways related mainly to who hurt his feelings that week? No, but it’s pretty shitty. Presidents are not required to hold press conferences and communicate information that way. However, they have become traditional. The practice of functionally exercising favouritism by withholding access to the president this way is also very troubling.
Is it censorship to refuse permits to protests? Well, this is a sticky one. I think in some cases (attorneys help me out here) it could be argued as such, because you are trying to use the permit process to control speech by civilians who wish to peaceably assemble. If those civilians assemble anyway and you use force to remove them on the grounds that they don’t have a permit, that could also potentially be censorship. Whether or not a court would agree, it is most definitely a dick move. Sadly, dick moves aren’t forbidden under federal law.
Is it censorship to pass a flag burning bill? Yes.
Would it be censorship if Congress or the state house passed legislation restricting what the media could reporting, or if the president or a governor used an executive order to limit the scope of the media? Yes indeedly do it would be!
Are hate speech laws censorship? No…and this is a tricky area. The Supreme Court has faced this issue down a couple of times, because there’s an awkward divide when it comes to protecting public safety versus being a dick. Being a dick, as stated above, is not actually illegal. Neither is being a bigot. Thus, someone saying hateful things is actually protected under the First Amendment (one reason why the ACLU defends the KKK and Nazis), but if it includes an actionable incitement to violence, that is a problem. If I write an article about how I think all [racial slurs] should die, I’m within my legal rights (and also a dick). If I am at an event and I start yelling that we should kill all [racial slurs] and someone in the audience drags someone up to the stage and starts beating them, I could be prosecuted for inciting violence. Whining about the PC police and so forth ignores the fact that hate speech cases are really tricky and courts tend to err on the side of protecting free speech, even when it is repugnant speech. It should also be noted that you can’t legislate hatred away — and that even if I were legally able to stop you from screeching about [racial slurs], I’m not sure that I would, because it wouldn’t eliminate the underlying attitude. That said, if you use [racial slurs] in my presence, you will absolutely be inciting violence in the form of my fist to your face if you don’t shut up when I tell you to — and no, that’s not censorship either, though it probably would be prosecuted as assault.
Image: First amendment permit area, andjam79, Flickr