10 Questions About the First Amendment
Christopher Banks is a professor at Kent State who teaches graduate courses in American politics, terrorism and human rights and law, justice, and society. His undergraduate instruction includes teaching courses on constitutional law, civil rights and liberties, the judicial process, American political theory and American politics. Before receiving his doctorate, he practiced law in civil and criminal litigation.
Associate Professor Emerita Jan Leach taught in the School of Media and Journalism such topics as media ethics, graduate media ethics, newswriting, copy editing and other news courses. Additionally, Leach was the director of Kent State’s Media Law Center for Ethics and Access where she coordinated and hosted the annual Poynter KSU Media Ethics Workshop and the new “Media at the Movies” series, which focuses on media ethics in film.
Q: Why is having an understanding of the First Amendment important?
Goodman: It reflects principles that are fundamental to American democracy: the necessity of a free press, the importance of religious freedom, the value of people gathering to share ideas and protest, for example. One can’t fully appreciate what it means to be an American if you don’t understand the First Amendment.
Leach: If you are concerned about ideas or expressions, the First Amendment is really compelling and still a timely freedom that we shouldn’t take for granted. What people don’t understand is that it has been around for 200 years and it is still timely. Even though you may disagree, you have the right to think it and say it. If we didn’t have First Amendment protection, how would we know what the government is doing in our name? What kind of questions do we ask about this? What are the foundational things we believe in? To me, it’s just such a huge and important privilege we should appreciate and enjoy.
Q: The First Amendment prevents the government from arresting people for what they say, but who says the Constitution guarantees speakers a platform on campus?
Banks: The First Amendment safeguards against government censorship of ideas, or the viewpoint or content of speech. On campus, the same principle applies, even if the ideas are offensive. The expression of ideas can be regulated if they move toward conduct, or action, that presents a more immediate threat to individuals or public safety.
Goodman: You’re right. The Constitution doesn’t really guarantee speakers a platform. But what it does protect is the right of a speaker not to be excluded from a public platform like a college campus based on the content of their speech or the viewpoint they are expressing.
Q: If there was one misconception about the First Amendment, what would it be and how would you explain it to people?
Goodman: I think the biggest misconception about the First Amendment is that it prevents anyone from silencing our speech. In fact, it’s only a limitation on government censorship. A private employer or property owner that isn’t the government can censor all they want without violating the First Amendment. State actors are regulated by the First Amendment; private actors are not.
Banks: A prevalent misconception that many citizens have about the First Amendment is the belief that anything can be said without government restriction. The First Amendment protects core values of free speech and press, but there are constitutional limits placed on the exercise of those rights. No rights are absolute, and that is why it is important to understand the factual context of the exercise of the right, plus the manner in which it is conveyed, for other government interests may be at issue that might warrant a restriction on the right.
Leach: Reporter Privilege- I think many journalists - and perhaps most sources - think that the First Amendment protects journalists from ever revealing confidential sources. That's not true everywhere and journos should be aware of this. Reporters who use confidential sources can be compelled to reveal them under certain circumstances. Some states have shield laws to protect reporters from revealing confidential sources, but not all. Ohio does have a shield law, but it also has limitations. The federal government does not have a federal shield law so reporters can be held in contempt of court if they refuse to name their sources.
Q: Does the First Amendment protect speech that incites violence against members of the campus community?
Banks: This is not necessarily prohibited, and where to draw the free speech line is a “case by case” determination, but generally it depends upon if the speech will produce an immediate threat to individuals or public safety.
Goodman: It depends. In the 1969 Supreme Court decision in a case called Brandenburg v. Ohio, the Court concluded that the First Amendment does not permit a state to forbid advocacy of the use of force or of law violation except where such advocacy is intended to incite or produce imminent lawless action and is likely to incite such action. So only when the speech is intentionally inciting imminent illegal action and is likely to be successful does it lose First Amendment protection.
Q: But isn’t it true you can’t shout fire in a crowded theater?
Banks: Yes and no. If the expression of speech is a “clear and present danger” to others, as per Oliver Wendell Holmes Jr.’s famous phrase suggests, then the speech can be prohibited or regulated; but that interpretation of where to draw the free speech line has been rejected by the Supreme Court in later cases because it has a tendency to restrict the free exchange of ideas too rigidly.
Goodman: That phrase, coined by Supreme Court Justice Oliver Wendell Holmes in the case Schenck v. U.S. 100 years ago, was never a complete description of the Court’s views on the matter. In fact, the decision that phrase appeared in was reversed by the Supreme Court 40 years later. But it does reflect the fact that even today the extent of First Amendment protection is determined by the unique circumstances of where and when the speech in question is uttered.
Q: What about campus safety? Doesn’t the First Amendment have an exception for “fighting words” that are likely to provoke violence?
Banks: Yes, but the fighting words exception, which means that speech can be prohibited or regulated, is a very narrow one that typically applies in “person to person” conflicts and not usually in large crowds or public settings.
Goodman: Yes. But “fighting words” is more than just words that may provoke violence. To meet the legal definition of fighting words, the government must show that the words were uttered face-to-face, not in print or online, and have a strong likelihood of provoking violence.
Q: Are nonverbal symbols constitutionally protected?
Banks: Yes, so-called “symbolic speech” is generally protected, unless a more direct and immediate threat to others is involved.
Goodman: Yes. If there is an intent to express a message and a likelihood that the message will be understood, the government cannot act to suppress those messages just because it finds them offensive. The First Amendment is based on the belief that more speech is the remedy to offensive messages, not censorship. Of course, burning a cross on someone else’s property could result in a successful prosecution for destruction of property, arson or any one of a number of other crimes. But the symbol itself is protected speech.
Q: Is there a difference between free speech and dangerous conduct?
Banks: Yes, the former, if it is more of an idea and not a direct threat to others, enjoys protection; whereas action, or conduct, can be prohibited or regulated if it presents an immediate direct threat or harm to others.
Goodman: Speech is protected by the First Amendment, conduct is not. The challenge arises when conduct includes elements of expression and the court has to separate the two.
Q: What does having free speech on campus mean for students and faculty?
Banks: Free speech on campus must be protected as a general principle because institutions of higher learning must allow faculty and students to exchange, and debate, the content of ideas, which is a critical part of education and learning.
Goodman: It means students have the opportunity to learn by being exposed to a wide array of views and, in turn, have the right to express their own views as well, no matter how unpopular. It means the challenge of discovering the truth will not be limited by the ideas we are exposed to but only by our willingness to listen, assess and learn.
Leach: I think it’s an important protection or right that we shouldn't take for granted because it allows students and others to hear, challenge, listen to, refute and consider all kinds of ideas even if we find them horrifying. It allows the marketplace of ideas-- it may not fit your ideology but you’re still allowed to express it. To me, living in the United States and being on campus with that protection is really significant.
Q: What does the right to petition the government mean? Are there any restrictions?
Goodman: Scholars still debate what exactly the petition clause in the First Amendment covers. But it is clear that it protects our right to seek help from any branch of the government: legislative, executive or judicial.
Q: What is the difference between free speech and hate speech?
Leach: There is no legal difference between them in the United States, but there is clearly an ethics component to that; Does what you're saying harm someone? Does what you're saying incite violence against someone? Does what you're saying induce panic even though it's legally protected? It’s more of is it the right thing to do, not the legal thing to do.