What the First Amendment Doesn’t Mean

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.

I want to talk briefly (I hope) about the portion of the First Amendment that I’ve highlighted above. Why? Because, of late (and yet again), there seems to be quite a bit of confusion.

In essence, the freedom of speech clause of the First Amendment prohibits the government (and, based on rulings from the Supreme Court, that means both federal and state governments) from abridging a person’s right to speak freely. But that right isn’t absolute. Thus, for example, you have the right to defame me — but I have the right to to sue you and to recover damages from you for the defamatory statement. Similarly, the government can limit speech using what are often referred to as “reasonable time, place, and manner restrictions”. Thus, for example, the government can pass a noise ordinance prohibiting noise above a certain volume at certain hours. But what is important to understand about this type of restriction is that it needs to be “content neutral”; thus, the government could pass a noise ordinance that applied to all noise but it couldn’t pass a noise ordinance that only applied to politicians standing on a corner; it could pass an ordinance regarding signs placed along streets, but it couldn’t limit the ordinance to political signs. Similarly, the government could pass an ordinance limiting the allowable decibel level for a car stereo but couldn’t have that ordinance only apply to rap music. Of course, the law is far more complex and there are exceptions to every rule…

And the government can ban certain types of speech, but those instances are very, very rare and limited, the most obvious being speech that serves as an incitement to violence.

Some of the current interesting or “hot” issues involve some of the following questions:

• Can a school (part of the government) prohibit students from speaking online on certain subjects if the speech is not done on school computers or from school grounds (or punish kids who do so)?
• Can a government ban speech that instructs someone in how to break a law, so long as no violence is involved (for example, there is a law that makes it illegal to provide information on how to crack a computer password)?
• Can the government ban people from lying about military medals and honors that they claim to have received?
• Can the government require certain types of warnings (think of cigarette packaging, for example)?

Obviously, there are numerous speech-related First Amendment issues before the courts, but those offer a highlight of some of the current issues. One thing to keep in mind, however, is that there are varying “levels” of speech, with political speech being deemed the most important and thus entitled to the most protection down to commercial speech (i.e., advertising) being entitled to some protection but not the same degree of protection as political speech and on down to obscenity which is entitled to little, if any, protection.

But the problem is that far too many people don’t seem to really understand some of the core concepts of this provision of the First Amendment. The recent flap over Rush Limbaugh’s outrageous comments offers a prime example.

I’ve heard or read more than a few commentators or individuals remark that Limbaugh was simply exercising his First Amendment rights. And that’s true. He was. The First Amendment gives people the right to say really stupid, really hurtful things. It even gives them a (limited) right to lie. But many of the people who have noted that he was exercising his First Amendment rights have either explicitly argued or implicitly suggested that, because he was exercising his First Amendment rights, criticism of Limbaugh is inappropriate. And that is wrong. Let me repeat something that I said last time I wrote on this very subject (Freedom of Speech Just Isn’t That Complicated (and other notes about Hank Williams Jr.)):

The First Amendment means that I can stand on a tree stump and shout my ideas to the world; but it does not mean that anybody has to come listen. The First Amendment means that I can write a book with crazy ideas; but it does not mean that anybody has to read it. And the First Amendment means that I can tell a newspaper reporter what I really think; but it doesn’t mean that he has to print it.

The other thing worth noting (and which seems to confuse many people) is that Limbaugh certainly has the right to say those hurtful things, but he doesn’t have a right to a $400 million radio contract or the right to say those things over the radio and on a station opened by a private corporation. Think of it this way: If you walk over to the local TV or radio station and tell them that you want to exercise your First Amendment rights and to please show you to the studio so that you can tell the world what you think, what do you think will happen? Exactly. Limbaugh has the same rights that you do. He can put up a soap box on a street corner or find a nice tree stump from which to spout his ideas (if the hate- and fear-mongering that he spews can properly be called “ideas”); but he has no First Amendment right to say what he wants on the radio. Now that doesn’t mean that the government can force him off of the radio for his comments — but the owner of the radio station can (subject to the terms of their contract). And there is no constitutional mandate for anyone to advertise on Limbaugh’s show.

Furthermore, and I can’t quite figure out why people have a hard time with this, criticism of Limbaugh is, itself, speech protected by the First Amendment.

And remember what I said about the intersection between the First Amendment and defamation? Right. Limbaugh had the right to call Sandra Fluke a slut and a prostitute. And she, most likely, has the right to sue him for defaming her and, again most likely, all she will have to prove is that he said it and that she isn’t. I don’t know about you, but I think that I would feel entitled to reasonable compensation from someone who told 20 million listeners that I was a prostitute.

So, when people call or write to Limbaugh’s sponsors and ask them to stop advertising on Limbaugh’s program, they are exercising their First Amendment rights. When people call or write to Limbaugh’s employer and ask them to take his program off the air, they are exercising their First Amendment rights. And when advertisers choose whether to continue their advertisements on Limbaugh’s show, they are, in essence, exercising their own First Amendment rights, too.

One central goal of the First Amendment was to allow ideas to be expressed and for those ideas to complete in the “marketplace of ideas”. Republicans are supposed to love free markets, right? Well, Limbaugh threw his thoughts into the marketplace of ideas and others are responding with their own views on Limbaugh’s thoughts. And the marketplace of ideas is choosing which of those competing views is the “winner”. Given that 30 or more advertisers have pulled advertising from Limbaugh’s program, it would appear that calling someone a slut and prostitute as a part of a three-day long all out personal attack is not a viewpoint that the marketplace supports.

Finally, as long as I’m talking about Limbaugh, I really ought to mention my own personal involvement and how I know, first hand, just how casually he lies. Some of you may remember how I led a social media effort (through Facebook) in April and May 2011 to get the Indianapolis Motor Speedway to rescind their invitation to Donald Trump to drive the pace car for the 100th Anniversary running of the Indianapolis 500 (I wrote about the effort and its result in my posts We Don’t Want Donald Trump to Drive the Indy 500 Pace Car and We Don’t Want Donald Trump to Drive the Indy 500 Pace Car (update); the Facebook page is still online … and still has over 17,000 “likes”). But apparently, I never got around to posting about Rush Limbaugh’s reaction to those efforts, including calling me a "Democrat fundraiser, operative, hack, or what have you" and a "wacko". I took those comments — especially being called a “wacko” — as a sort of badge of honor. But the primary reason that I raise this is the fact that Limbaugh, based on who knows what, but certainly not from talking to me, referred to me as a “Democratic fundraiser”. I’m not and never have been. Yes, I’ve given tiny amounts of money on a handful of occasions (I think I gave $25 to the Obama campaign and $50 to Vi Simpson when she was thinking of running for Governor of Indiana). I’ve never fundraised for a Democratic candidate or the party (at least I certainly don’t recall doing so). But you see, when it comes to Limbaugh, despite his claims to “integrity” and whatever else, truth just doesn’t seem to be that important. If he lied, so casually, about little ol’ me and on such a relatively trivial matter, then what might he do when the subject is far more important and the stakes are far higher?

So, yes, the First Amendment gives Limbaugh the right to lie all he wants (well, to a point) and to say mean and hurtful things. And the First Amendment also gives people — like you and me — the right to criticism him for his lies and hurtful statements.