When are your First Amendment rights at stake?

People restrict speech all the time. Organizations often punish others for the things they say. The NFL recently tried to institute a policy regarding players’ protests during the National Anthem. Twitter permanently banned the account of too-eager-to-take-his-shirt-off Alex Jones, the Infowars conspiracy theorist. Whenever something happens that restricts a person’s speech, we hear cries about the First Amendment and free-speech violations. But when are your First Amendment rights at stake?

The First Amendment and the Bill of Rights

The First Amendment is part of the Bill of Rights, the first ten amendments to the U.S. Constitution. The First Amendment[1] outlines 5 rights. They are 1) freedom of religion[2], 2) freedom of speech, 3) freedom of the press, 4) freedom to peaceably assemble, and 5) freedom to petition the government for a redress of grievances.

The First Amendment (like the rest of the Bill of Rights) exists to restrain government power. The Bill of Rights was adopted to add to the Constitution specific personal freedoms, clear limitations on government power, and declarations that all powers not delegated to Congress by the Constitution are reserved for the states or the people. It prevents the government, and only the government, from acting or doing certain things. The First Amendment begins, “Congress shall make no law . . .” (emphasis added). There is no restriction in the First Amendment (or any of the amendments in the Bill of Rights) on private actors.

How to Know If the First Amendment is Involved

Anytime you hear someone say something about a violation of the First Amendment or of free-speech rights, ask yourself: Is the government acting? If the answer is, “No,” then there cannot be a Constitutional violation, and your analysis is over.

If the answer is “yes, the government is acting,” then you must ask whether the government’s action is allowed under the Constitution. Free speech is a fundamental right. If the government is acting in a way that restrains people’s free-speech rights, we subject the government’s action to “strict scrutiny.”[3] To survive strict scrutiny, the government action must be necessary in order to achieve a “compelling” government interest. “Courts commonly require that government action be no broader than necessary to advance its compelling interest,” i.e., that the government choose the least restrictive means to achieve its compelling interest.[4] If the government chooses the least restrictive means to achieve its compelling interest, then its action is likely lawful. On the other hand, if the government’s interest is not compelling, the action is not lawful. Or, if the government does not choose the least restrictive means to achieve its interest, then the action is not lawful.

Real-Life Examples

So if the NFL institutes a policy that prohibits a player from protesting during the National Anthem, would that violate the First Amendment? No. The NFL is not a government actor, so the NFL can restrict speech, and it has nothing to do with the Constitution.

Now that Twitter has permanently banned Alex Jones of InfoWars, does that violate Alex Jones’s constitutional speech rights? No. Twitter is a private actor, and it can ban whoever it wants. Same with Facebook.

Some argue that, while it may be legal for companies like Facebook and Twitter to ban people, the companies shouldn’t do that because it violates the spirit of the First Amendment, i.e., the free exchange of ideas. But the spirit or intent of the First Amendment was only to prevent the government from interfering with the free exchange of ideas. Its purpose was never to restrain individuals or force people to hear ideas that they don’t want to hear. If someone is peddling some nonsense on his YouTube channel, we don’t have to listen. If Twitter or Facebook wants to disable an account to prevent a person from speaking on Twitter or Facebook’s platform, that’s fine. It’s legal. And it doesn’t violate the spirit or any other part of the First Amendment.

But what if Congress passed a law that required Twitter to allow Alex Jones to have an account, and to be able to publish tweets through the company’s platform? What if Congress passed a law that required NFL players to stand for the National Anthem? In those cases, the government is acting, so the Constitution is implicated, and the speech rights of Twitter and of those forced to stand for the National Anthem likely are being violated.[5]

Conclusion

The First Amendment exists only to restrain government action. Whenever someone talks about the First Amendment being violated, ask yourself, “Is the government acting?” If the government is not the one acting, the First Amendment is not implicated.[6]

[1] The text of 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 of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[2] “Freedom of Religion” actually involves two separate restrictions on government power: 1) the government cannot form an official State religion, and 2) the government cannot prevent an individual from the free exercise of his/her religion.

[3] Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1057 (Colo. 2002).

[4] Id. at 1057-58.

[5] The U.S. Supreme Court has already held that students cannot be forced to stand and recite the Pledge of Allegiance. West Virginia State Board of Edu. v. Barnette, 319 U.S. 624 (1943).

[6] There are some exceptions to the general rule that only government action can implicate the Constitution. These include the 13^th Amendment (which prohibits slavery and applies to private actors as well as the government), or if the state delegates to a private party a function traditionally reserved exclusively to the state (then the private actor may become a state actor). For purposes of this blog, we don’t need to get into these exceptions.