Commentary

Let’s clear up needless confusion about the First Amendment

January 23, 2021 8:00 am

A member of an anti-government militia holds a copy of the U.S. Constitution at the Malheur National Wildlife Refuge Headquarters on Jan. 6, 2016 near Burns, Oregon. (Photo by Justin Sullivan/Getty Images)

Forty-five words that were first written with a quill pen 230 years ago form what may be the most consequential sentence in United States history.

But that sentence also is one of the most misunderstood — as recent comments from some of our leaders illustrate.

The sentence I refer to is the First Amendment. It is the Constitution’s guarantee of fundamental rights of the American people to live their lives without government butting in.

For reference, here is what the amendment says in full: “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.”

Some graduates of top law schools must have been snoozing in class when constitutional law was being taught. Sens. Josh Hawley and Ted Cruz are a couple of examples.

Hawley, R-Missouri, is a Yale law school graduate. Cruz, R-Texas, is a Harvard law school graduate. Before they were elected to the United States Senate, Hawley was Missouri attorney general and Cruz was Texas solicitor general.

It would not be surprising if someone without legal training did not fully grasp the nuances of those 45 words in the First Amendment. But it is troubling that Ivy League lawyers could be so wrong about such a fundamental part of life in America — or be so willing to deliberately mislead the public.

Conservatives have groused that social media companies like Facebook and Twitter favor content with a clearly liberal bent. Cruz recently tore into corporate executives during a Senate hearing and demanded to know, “Who the hell made Facebook the arbiter of political speech?”

Hang on: The answer to Cruz’s question is coming shortly.

Hawley was the first senator to rise in support of President Donald Trump’s push to get Congress to reject the electoral votes from a handful of swing states that Joe Biden carried. After the violence at the Capitol on the day of the electoral vote certification, one of the nation’s big book publishers decided it no longer wanted to publish a new book Hawley has written.

The senator responded by accusing the publisher Simon & Schuster of “a direct assault on the First Amendment” by backing out of their deal.

Both Cruz and Hawley displayed a flawed understanding of the relationship of the First Amendment to companies like Simon & Schuster, Twitter or Facebook.

Any shade-tree lawyer should know the First Amendment prevents the government from stopping you from expressing your opinions or from demonstrating peacefully. It does not stop businesses from acting, or reacting, on free speech matters.

Hawley is free to take his manuscript to another publisher. He can decide to publish the book himself. But absent a contract clause prohibiting Simon & Schuster from canceling the deal, the company cannot be compelled to publish Hawley’s book — or anyone else’s book.

People who are kicked off Twitter or Facebook have other options for disseminating their views, ideas and commentary — especially when they live in the White House, with a press briefing room down the hall and a flock of journalists waiting there every day.

Just as Hawley cannot force Simon & Schuster to publish his book, I cannot compel the New York Times to publish these columns. Nor can I force the Trump family to put a stack of my political commentaries at the registration desk in each of their hotels.

Likewise, just as National Football League team owners have the legal right to punish players who kneel during the national anthem, Facebook or Twitter have the legal right to suspend or drop a user who violates the companies’ terms of service.

The First Amendment does not require Twitter and Facebook to give accounts to anyone any more than the Second Amendment requires gun manufacturers to sell you a gun.

The essayist A.J. Liebling put this First Amendment concept succinctly years ago when he wrote, “Freedom of the press is limited to those who own one.”

One of my friends who is not an essayist offered this not-so-succinct explanation of the intricacies of the First Amendment last week:

“The government cannot punish you for waving a Confederate flag or wearing a 6MWE shirt or saluting rioters or yelling, ‘You will not replace us.’ That would be censorship.

“But your employer can fire you, your social media can suspend you, your publisher can drop you, and your neighbors can shun you. That is not censorship. That is your employer, your social media, your publisher, and your neighbors exercising their own rights.

“Your right to free speech does not take away others’ right to react.”

A footnote: If you are not familiar with the 6MWE acronym, organizations that study white supremacists say it is used as shorthand to claim that the 6 million Jews killed in the Holocaust “weren’t enough.”

That is a despicable position to take. The government cannot punish you for thinking or spreading a despicable message. But your boss can.

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Randy Evans
Randy Evans

Randy Evans is executive director of the Iowa Freedom of Information Council, a 43-year-old nonprofit education and advocacy organization that works for improved government transparency and citizen accountability. He can be reached at [email protected]

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