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.

None.

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).

6 thoughts on “The Bill of Rights: Amendment I

  1. I’m not a lawyer, Joe, but the First Amendment refers specifically to the ability of Congress to make laws. Lots of private institutions get federal funds of some sort, just as public institutions also get private funds.
    I can understand if you don’t want to answer my questions in a public forum, but these are some questions that come to my mind. (You’re welcome to e-mail me, though.)
    Is the issue that someone in the administration is punishing you for supporting a student project that involved nudity?
    If the student-photographer went directly to you because she had reason to believe the administration would object to her ideas, then you may have an academic freedom issue — something that should be of interest to all professors who teach potentially objectionable subject matter, from evolution to the Holocaust to Allen Ginsberg to nuclear physics.
    I regularly hand out keys to editors and other key staff members, so they can access the space the students use to produce the student paper, and I make no attempt to supervise them personally all the time. But I know these students personally. I can imagine feeling a little irked if somebody else loaned a key to a student whom I hadn’t already approved as trustworthy.
    Is the issue here that some students experienced a medical emergency in a campus location that they weren’t officially cleared to use — thus potentially exposing the university to a lawsuit? If so, maybe it’s really a turf issue here, and your student’s freedom to express herself through photography isn’t affected at all.
    Have your superiors known about, but never objected to, other times when faculty members made space-related decisions when the head wasn’t available?
    Does your school have a policy that requires student photographers to have their models sign waivers, and if so, did your student follow that policy?
    A reporter from Inside Higher Education or the Chronicle of Higher Education might be interested in such a story, since the increasing reliance on adjunct professors means more teachers lack the protection that tenure is supposed to offer to teachers who have already proved themselves over the long haul, but who make challenging choices that some people in power find upsetting.

  2. My name is Joe Billera. I taught Photography at a University for the past 27 years. I am 57 years old and have never been reprimanded for the lest infraction. It is a Private Catholic Institution, but has received 4 million from The Commonwealth of PA. I was teaching my 2 sections of Intro to Photography this past semester as well as a Practicum or Independent Study. One of my students wanted to do a project on nude portraiture. She had taken my Intro Course and is a very intelligent, and responsible individual. We discussed the classic approach to the nude, i.e. Edward Weston, Brett Weston, Imogen Cunningham, Andre Kertez, etc. All Master Photographers whose work is shown in major Art Institutions all over the world. The level of taste and execution is undeniable. She indicated to me that the Department had knowledge of her project. She needed permission to use the TV/Film Studio and the Department head was not available so I gave her permission. He routinely gives her permission to use the studio over the weekend. Her model passed out because she has a long history of low blood pressure and according to her , “passes out all the time.”
    My student got scared and responsibly contacted University Security who promptly responded. They proceeded to write up the incident because the model was using body paint and they felt that could’ve contributed to her passing out. The model refused emergency assistance stating that she passes out all the time from low blood pressure. There were 4 students present, Lighting, make-up Lucy, and set person. All the students are above the age of 18. There is no policy of any kind in the TV/Film or Faculty Handbook that sets any kind of precedent . I have a lawyer and I’m waiting to hear from the ACLU.
    I was brought in at the end of the semester and fired for, “lack of proper judgement and supervision.” The incident happened on December 8, I was terminated on December 23. They will allow me to Appeal the decision.
    My question to you is do I have a 1st Amendment case here with regard to freedom of expression? I realize that this is a Private Catholic University and not necessarily subject to the laws of the Constitution, but the University recently did receive 4 million dollars from The Commonwealth of PA. Does that change its Private status?
    Thank You for the time and consideration. Joe Bilera

  3. Whether a university can or should do that is only one part of the picture. The fact is that corporations DO behave that way.

    The principle of academic freedom protects my right to teach journalism in an environment where students won’t be punished for an editorial critizing the administration. Calling an individual administrator stupid and boneheaded is different from calling a POLICY stupid and boneheaded. That being the case, I’m emphasizing what the First Amendment does NOT do, rather than emphasizing the importance of the rights protected by the First Amendment.

    When word gets out that a private institution has censored its students or faculty, the result is very bad PR. But students who libel, defame, or threaten aren’t magically protected by additional special rights that only apply to them.

  4. I’m not disagreeing with you, but while the first amendent doesn’t stop non-government institutions from retailiated because someone said something they didn’t like, it also doesn’t say anything about whether they *should*.

    While the 1st amendment protects free speech against the government, it’s also true that there’s a certain cultural value to allowing free speech in general. Can a private university discipline a student who says that the university’s policies are stupid and boneheaded? Well, the first amendment might not protect the student, but whether the university *should* or not is a completely different question.

  5. Although I support having the Monday relief in the FUTURE, I don’t get the hubub…who really believes a course calendar can be changed the week before the break?

    A student today actually tried to use his knowledge that I signed the petition to get out of class on Monday. “I know you signed the petition for cancelling class on Monday, and since I have 8 hours to drive back….(wink, wink…)”

    Spring Fever (and that’s all this really is, honestly) is spreading like Ebola. This week, I’ve also had students skip classes to attend Opening Day for the Pirates game and others left early for Easter break (and will probably boycott Monday, too). The latter case was actually on the phone with one of my students at the beginning of the very same class he said he needed to miss…calling from his dorm room.

    Jesus wept.

    Arnzen graded papers.

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