First Amendment Theory

Overview

First Amendment theory is the body of scholarship devoted to understanding and explicating the meaning of the First Amendment to the United States Constitution. The First Amendment is succinct; it states that "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 straightforward statement is dissected into its component clauses by Constitutional scholars, so that there are separate lines of inquiry regarding the Establishment Clause concerning religion, the right of peaceful assembly, and so on. In most discussions of First Amendment theory, the main topic of interest is freedom of speech.

The Framers of the Constitution included protection for free speech within the First Amendment in part to signify its importance; it is widely recognized that liberty and democracy cannot flourish in an environment lacking freedom of speech. This is because throughout history, kings and governments have often sought to silence their critics by any means at their disposal, from imprisonment to exile or even execution. Under such authoritarian rule, not only criticism is stifled, but also creativity, curiosity, and civic engagement. The whole idea of democracy is that people put forward their beliefs into the "marketplace of ideas" and there they are evaluated by others, to be either rejected or adopted. This system can only function if citizens feel safe expressing themselves honestly; the moment people realize that the government might punish them for their expression, some will remain silent in fear (Whitmore, 2012).

While most people understand the spirit of the First Amendment's protection of speech, when it comes to the details of its implementation, and the philosophical underpinnings of the rights being protected, there is much greater room for debate. The field of First Amendment theory is home to numerous historians, legal scholars, and social scientists, each with his or her own views on the overarching purpose of the First Amendment. Many of these ideas fall under the broad heading of what has been termed the "checking function," meaning that free speech is protected as a means of checking the power of the government. Part of the context of the framers of the Constitution was having been subject to rule by a government that continually overstepped its bounds, intruding further and further into people's lives simply because it could (Redish & Shust, 2015). As a result, they sought to devise a system of governance in which all power is reserved to the people, with the only exceptions being those powers specifically granted to the government, either in the Constitution or in subsequent legislation (Byrum, 2017).

Further Insights

It is helpful to remember that no matter how arcane the arguments of First Amendment theory may become, they do have an ultimate purpose, which is to more clearly define how legal cases concerning freedom of speech should be decided. Courts have long sought guidance on this point, because when the facts of a case do not provide a ready answer as to what its disposition should be, a jurist's instinctive response is to return to first principles, and ask why the law was created in the first place. In the case of free speech, the First Amendment was created not to protect the government from having embarrassing information revealed, but to protect citizens from being silenced when they attempt to bring to light those facts that others would prefer to keep hidden. This is the reason why courts will often give preference to protecting speech under the First Amendment if there is any type of social benefit to be gained by allowing the speech (Mitchell, 2016).

One set of theorists suggests that the purpose of the First Amendment is to enshrine protection for the truth, so that even when the truth is something that the government might not want to hear, people will still feel that they are able to speak it. Naturally, however, the discussion does not end there, because this approach to First Amendment thinking raises still other questions, such as what is meant by truth, how does one know when something is true, can something be true for one person but not for another, and so on. If truth is defined as a statement that is factually accurate from an objective point of view, one is immediately confronted by the problem of what to do when discussion of the truth is inconvenient or even dangerous (Blitz, 2009). An example might be a hypothetical situation in which the government is secretly developing a weapon that will allow it to win a war it is engaged in, unless word gets out about the technology and allows the enemy to neutralize the threat.

The question becomes, if a person learns of the weapon, should she be able to inform others—possibly endangering the entire country, and certainly jeopardizing the lives of many soldiers—simply because she has the right to do so under the First Amendment? Many answer this question by stating that there should be certain types of information that are exempt from First Amendment protection, such as speech that is treasonous or that might compromise national security. However, establishing such exceptions to the First Amendment opens up the possibility that the government might classify speech that it does not like, such as criticism of its policies and priorities, as threatening national security. Thus, the debate engendered by the notion that the purpose of the First Amendment is to protect the truth is one that raises far more questions than it answers.

While the idea that the First Amendment exists to protect the truth quickly leads to abstract concepts of objectivity and subjectivity, other theories are more pragmatic in nature. Some suggest that freedom of speech is needed so that democracy may function, similar to the "marketplace of ideas" concept. This can be thought of as an almost Darwinian approach to policymaking, as it imagines a society in which everyone puts forward their ideas for how things should be, no matter how strange or impractical these ideas may seem, and the best ideas emerge after all of the others have been evaluated and then dismissed. Only by having an environment in which any idea can be proposed does this model work; when certain ideas, beliefs, or attitudes are considered "off limits," societal blind spots are created (Johnson, 2016).

These blind spots, in turn, can develop into areas of weakness that go unaddressed for long periods of time, until they precipitate or intensify a catastrophe. One can imagine a society in which the government actively discourages people from sharing their concerns about the public health system—that is, whenever someone raises the subject, that person is denounced or otherwise made to suffer. Before much time passes, the subject will be avoided whenever possible, and eventually there will be an outbreak of disease, a scandal concerning contaminated medicine, or some other disaster that could have been avoided if the government had not made it all but impossible to point out the failings of the system.

In the public health example the speech being restricted is valid criticism, yet there are also situations in which speech might at first appear more problematic, such as the speech of groups who feel that the government is untrustworthy and that it must be resisted at every turn (Coenen, 2018). Often these groups isolate themselves from the rest of society, using extremist rhetoric and refusing to cooperate with even the most basic institutions of society, such as paying taxes or voting. One might assume that such sharp opposition to the government might cross the line into treason and therefore incur the wrath of the state, but for the most part First Amendment speech extends even to the radical doctrines of hostile fringe groups. In practice, restricting this kind of speech tends to encourage the very movements it arises from.

If, for example, a group of people claim that the government is out to get them and is monitoring their every word so that it can seize an opportunity to accuse them of treason and throw them in prison, then accusing them of treason and incarcerating them would, in their eyes, confirm all of their worst fears and encourage followers. By allowing First Amendment protection to encompass all ideas, an opportunity is created for the rest of society to confront those ideas and evaluate them. Further, allowing the expression of deeply unpatriotic or even dangerous ideas, instead of forbidding anti-government speech, undercuts arguments that are merely paranoid and resists feeding the resentment that drives such ideas (Magarian, 2012).

Issues

One of the most frequently misunderstood aspects of the First Amendment is the distinction between being free of restrictions on one's speech by the government, and being free of the consequences of one's speech. Time and again in the news, stories appear about a person who was fired from his or her job as a result of making biased, hateful, or controversial comments. These former employees, along with any supporters they have attracted, are heard to lament that freedom of speech is a thing of the past. This view misses the point of the First Amendment, which is that the government—not private citizens, business owners, or employers—is not permitted to restrict the people's free expression of ideas, or punish those whose speech it does not like. There is nothing in the First Amendment that prevents an employer from firing someone whose free expression threatens to alienate customers or interfere with business in some other manner (Shaub, 2012).

First Amendment issues have taken a more prominent place in the news in the aftermath of the 2010 Supreme Court decision in Citizens United v. Federal Election Commission. The details of the case are somewhat convoluted, but the principal finding of the Court was that it is unconstitutional for the government to limit the amount of money that a corporation or other organization may give to a political campaign. The basis for this decision is that giving money to a campaign in order to support its platform and candidates is a form of speech, and therefore the First Amendment protects that speech from government interference. A secondary finding is that corporations and similar groups have essentially the same rights as individual citizens. The case has intensified the political debate surrounding the question of what rights an organization should have, and what responsibilities should go along with those rights, as well as the novel idea that campaign spending is equivalent to speech. On one side, commentators argue that if the government is allowed to place limits on a corporation's speech by capping the amount that it is allowed to spend for campaign donations, then it will only be a matter of time before the government also tries to place other limits on individuals' political speech, such as specifying what can be discussed, where, when, and for how long. Others hold the view that the problem with the Court's decision is not in its protection of campaign donations as political speech protected under the First Amendment. Rather, they argue that the problem is the Court's willingness to give corporations all of the same rights as real people.

Interestingly, Citizens United is another instance of courts attempting to reach a decision by returning to the basic purpose that motivated the creation of the law in the first place. When the issue is seen in this light, those in favor of the Court's decision have concluded that the fundamental purpose of the First Amendment is to protect speech, insofar as it can be defined as an abstract concept of expression, without regard to its source or destination. Critics of Citizens Uniteddisagree, feeling instead that at the most basic level, what the First Amendment is intended to protect is not the vague notion of "speech," but people whose liberty is in jeopardy (Carter, 2017). The decision in Citizens United polarized discussion of the First Amendment and became conflated with support for particular candidates and policies. Political affiliation rather than objective analysis of the First Amendment seem to rule positions on the issue. With the passage of time the public discourse on this case and its implications for free speech will take on a more rational tone, having benefited from a larger perspective. Until such a time arrives, there is little doubt that opinions regarding the purpose and proper application of the First Amendment will sharply differ.

In the 2020s, some groups, such as PEN America, feel that bans on critical race theory threaten rights guaranteed by the First Amendment. Critical race theory is an intellectual and social movement based on the idea that race is not biological but is instead a socially constructed way to oppress groups of people, such as those of color. By mid-2022, nearly forty states had either adopted or introduced laws restricting the teaching of race—in particular critical race theory—in the K-12 classroom. Experts believe that this First Amendment issue may make its way to the US Supreme Court.

Bibliography

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Coenen, D. T. (2018). Free speech and generally applicable laws: A new doctrinal synthesis. Iowa Law Review, 103(2), 435–505.

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Magarian, G. P. (2012). Speaking truth to firepower: How the first amendment destabilizes the second. Texas Law Review, 91(1), 49–99.

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