The Bill of Rights: Amendment I

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. —The Bill of Rights: Amendment I

The First Amendment, among other things, prevents the government from arresting or silencing a citizen for expressing an unpopular or offensive opinion that powerful people may not want to hear.

It is also popularly misunderstood as a magical powerup that protects authors from the consequences of exercising free speech.

My right to swing my fist ends where your nose begins. Or, as the Ninth Amendment puts it, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Thus, your right to life, liberty and the pursuit of happiness takes precedence over my freedom of speech.

The owner of a theatre has a right and obligation to other patrons to eject someone who falsely shouts “fire,” just as an airline has a right and obligation to single out for extra security screening someone who makes a joke about carrying a bomb.

If an employee makes a racist or otherwise insensitive remark, the employer has the right and obligation to discipline the employee. Even if that employee remark does not amount to libel, the livelihood of co-workers who are not responsible for the employee’s remarks may be affected if customers see the company as permitting insensitive behavior.

If a football player insults an assistant coach, the head coach can order him to run laps. If the player isn’t willing to do the punishment, then he’s free to quit the team. The coach is free to order the team to wear pink tutus and ballet slippers, and the NFL is free to discipline the coach, or give him a raise if they want to. But whatever happens, it’s not a First Amendment issue, because the laws of Congress have nothing to do with the matter.

The First Amendment does not require that a citizen be furnished with a platform from which to speak. Thus, if group X invites Sally to speak at a meeting, and Joe shows up with a bullhorn to interrupt Sally’s speech, Joe’s rights are not being violated if the police show up and escort him out of the building. The First Amendment is also not a shield behind which one can hide after publishing libel, defamation, or threats against specific individuals or small groups. It does not insist that owners of private property permit protestors to camp on their front lawns, or spray paint graffiti on their walls. It does not require that city authorities stand by idly while marchers tie up traffic. It does not prohibit schools from disciplining students who post vulgar or offensive MySpace entries.

There are many good arguments for why tolerance and open-mindedness are the best default practice, particularly in educational communities where people need to be free to make mistakes in order to learn from them. However, in no case does the First Amendment protect the speaker from the consequences of the choice to speak freely. Those consequences might range from losing an election to losing your job; from losing a friend to losing your good name.

It’s purely a coincidence that I’m blogging on the First Amendment the day after some Seton Hill students launched a petition to cancel classes on the Monday after Easter. That calendar had been set over a year in advance — almost two years, really. I know both the students who spearheaded the petition, and think of them both as upstanding citizens. I have no sense that the administration can, will, or even might respond with sanctions.

The First Amendment protects their right “to petition the government for a redress of grievances,” but since the Seton Hill administration is not “the government,” the First Amendment would have absolutely no relevance.


But if those students had chosen to libel, harass, threaten, or make personal attacks, the university would be perfectly within its rights to respond with sanctions.*

If you want to say something that violates a contract with an employer, jeopardizes your enrollment with an educational institution, or flaunts the conditions of membership in the local treehouse club, the government won’t arrest you. But your employer, your institution, and your clubhouse president are likewise free to apply whatever sanctions they feel are appropriate.

* Just in case any student is worried that I’ve gotten inkling of some administrative crackdown, let me repeat — I’m not actually blogging this First Amendment piece out of concern that there was anything wrong with the petition. (I signed it, by the way, and told my class that as long as they do the work that’s due Monday, and participate in a discussion via their blogs, that’s fine with me.)

One of our administrators pointed out that she actually proposed the Friday/Monday plan that the students want, but was pressured to change that to Thursday/Friday because, as a Catholic college (so the argument went) we should be more sensitive to the liturgical significance of Holy Thursday (the day Jesus shared the Last Supper with his apostles) rather than the Monday after Easter (which is.. I don’t know? the day the apostles showed up to work late because they didn’t make it back from Jerusalem in time).