Bo Statham: Understanding the true meaning of the First Amendment

In the media and commentary, letters to the editor and other communications, there is much misinformation and confusion as to the meaning and application of the freedom of speech provision of the First Amendment to the United States Constitution. This fundamental protection is relevant to several issues and controversies of current national interest.

The first 10 amendments, known as the Bill of Rights, were adopted in 1791, only two years after the Constitution became effective. The purpose of eight of those amendments was to protect individuals against the tyranny of government, a commitment made by the Founding Fathers in 1788 in order to secure ratification of the Constitution by at least nine of the original thirteen states.

There are three widespread misunderstandings of the freedom of speech as guaranteed in the First Amendment: 1) both the government and individuals are prohibited from infringing on anyone’s speech; 2) the freedom is absolute; and 3) the freedom applies only to American citizens.

First, only governmental action that abridges the freedom is prohibited. Restraining government action is the underlying purpose of the Bill of Rights and the only possible meaning of the Amendment’s language that “Congress shall make no law… abridging the freedom of speech….” An individual cannot “deny” another person’s freedom of speech.

Thus, Donald Sterling may have a civil cause of action against the National Basketball Association for punishing him because of his racial comments, but there is no issue of “freedom of speech” in this sordid affair.

Second, the freedom of speech is subject to limitations. Perhaps the most famous statement of this is the language of Mr. Justice Holmes in a 1919 Supreme Court decision “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic….” Other limitations apply to individual constitutional rights, such as background checks to prevent criminals and incompetent persons from buying guns.

Third, it’s not only American citizens who are entitled to freedom of speech. As noted above, the language of the First Amendment does not limit its protection to citizens; in fact, neither the word “citizen” nor “citizens” appears in the Bill of Rights. The failure to limit the right to citizens has significance because the Amendment does speak of the right of the “people” peaceably to assemble and to petition the government for a redress of grievances. The Fourteenth Amendment likewise provides no State shall deprive any “person” of life, liberty or property without due process of law.

The Supreme Court has held for more than a hundred years non-citizens are protected by the First, Fifth and Fourteenth Amendments. While it’s a little risky to generalize on this point in today’s political climate, constitutional rights generally extend to “people” or “persons” physically in this country.

In recent protests in Murrieta, Calif., concerning the flood of immigrant children coming into the United States, a number of angry protestors waived the American flag. Another carried a sign that read, “The Bill of Rights is for Citizens!” Not only were the protestors demeaning the humanitarian values the flag stands for, they were wrong about the constitutional rights they professed to be exercising.

Bo Statham is a retired lawyer, congressional aide and businessman. He lives in Gardnerville and can be reached at bostatham@me.com.