8 Ways One Can Lose One’s First Amendment Rights

Recently, what is covered and what is not protected by our First Amendment rights has been in the news. For the record, the First Amendment to the U.S. Constitution reads:

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.

This right, which some correctly call a privilege of being a citizen or legal resident of the United States, has limits. Twice in the 300+ posts of this blog, the origins of the First Amendment and to whom it applies and doesn’t were covered.

On March 21^st, 2021, Origin of the Scope of the First Amendment – https://marcliebman.com/origin-of-the-scope-of-the-first-amendment/ – was posted. Two years, eight months later, on November 25^th, 2023, the subject was revisited in the post titled The First Amendment Has Limits – https://marcliebman.com/the-first-amendment-has-limits/ .

While they are not prerequisites for reading what follows, they may help you understand the current debate over what is allowed under the First Amendment and what is not.

In our 249-year history, our court system, led by the Supreme Court, has established where a citizen or legal alien is protected by the First Amendment. Some are blatantly obvious, some not so and are complex legal issues. And others will surprise you.  are complex legal issues. What follows are eight ways (there are many more) one can lose First Amendment protections for not only speech but also the right of assembly:

1. Incitement – if one – citizen or non-citizen – encourages another individual to commit a crime. This also includes encouraging a person to commit suicide.
2. False Statements of Fact – by making false statements in public (on the Internet, newspapers, magazines, radio, TV, etc.) that are libelous or slanderous, or affect another’s civil liberties, or are based on a false factual connotation.
3. Fighting Words – individuals cannot utter words publicly that could cause a “breach of the peace” or cause a brawl or riot.
4. Threatening the President of the United States – making a written or verbal threat against the President of the United States may cost one their First Amendment protection.
5. Obscenity – shout obscenities in a public gathering or on a media outlet, and it could cost you First Amendment protection.
6. Educator – what one can say as an educator when employed by a government-run institution or one that receives Federal funding is limited.
7. Public speaking – ditto reasons 1 through 6.
8. Non-citizens – if one is not a citizen and has made statements in the past that are not protected by the First Amendment, the Federal government is permitted to deny the person entry into the U.S.

To bring this to March 2025. Holding a protest against Israel at Columbia University is protected by the First Amendment if the organizers follow the rules the university has for governing them. However, what is not protected is shouting “From the River to the Sea,” holding signs “Kill all the Jews,” occupying campus buildings without permission, vandalizing and/or destroying university property.

And, if one’s student visa or green card granting residency was based on an application containing false information, one loses one’s First Amendment protection. Why? All of the above actions make you a criminal subject to arrest and prosecution. For those, the Fourth, Fifth, Sixth, and Eighth Amendments apply. All we need now are prosecutors who wants to enforce the law.

1885 Cartoon by Joseph Keppler called Attack on Our Ramparts.