The First Amendment Has Limits

Once the draft of the U.S. Constitution was ready to go out to the individual states, the state assemblies of New York, Massachusetts, and Rhode Island signaled that they would only ratify the Constitution as written if there was a Bill of Rights. Rather than go back to the drawing board and redraft a document approved by the representatives of all thirteen states, James Madison agreed to draft a Bill of Rights.

Madison relied heavily on Virginia’s Declaration of Rights written by George Mason in his original draft of the Bill of Rights. In his first draft to be debated, Madison’s draft contained 19 amendments. They were eventually whittled down to the 10, which became the Bill of Rights.

To those men who led a bitter eight-year war against the British to win our independence, the rights were listed in order of importance to the members of the Continental (Confederation) Congress and the Constitutional Convention.

The First Amendment reads Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The words in the Constitution have been open to interpretation, and the ultimate and final arbiter of any law or policy is the Supreme Court. Over the 235 years, the Supreme Court has placed very clear limits on what is and what is not “free speech, freedom of expression, and freedom to assemble.”

With each ruling, the court establishes boundaries on what is free speech and what is not. It has made rulings on a laundry list of topics in nine broad categories that include:

  1. When the government can and cannot regulate free speech
  2. Defamation and false statements
  3. What corporations can and cannot say
  4. Rules campaign finance and campaign ads in the electoral process
  5. Child pornography
  6. Fighting words, hostile audiences, and true threats
  7. Obscenity
  8. Rights of criminals in prisons
  9. Students

Space does not allow a discussion of the rulings in each of these categories, but the one that seems to continually push the boundaries of free speech are protests. Under the First Amendment, we are guaranteed the right to assemble, protest, and express our opinion.

However, the Supreme Court has made it very, very clear that if someone threatens another individual either directly or indirectly or if one encourages someone to commit a crime, one’s First Amendment protection evaporates immediately. The struggle the court has in its ruling is that statements made by the protestor may be his opinion, but the listener may take it as a threat.

The court has been forced to dig into the implications of a threat and determine if, in fact, a threat has been implied or made. Historically, the Supreme Court has been reluctant to limit First Amendment rights knowing that the legal precedent that it sets can be used by later Supreme Court justices to further limit one of our most precious freedoms.

So, the next time you see a protest with whom you disagree, remember it is their right to do so. However, if the protestors incite others to commit a crime or use what the court calls “fighting words” or uses obscenities, then their First Amendment rights evaporate instantly, and they can be prosecuted to the full extent of the law.

Image is of George Mason whose Virginia Declaration of Rights became the basis of the U.S. Bill of Rights.

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