“Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” – Benjamin Franklin
(Or, as Ice-T might have said, “What’s up, Tip? You ain’t gettin’ no free speech?”)
A few days ago, the New York Post published an online article, which originally appeared on thecentersquare.com, with a headline that read, “Majority of Americans Believe the First Amendment Goes Too Far: Poll.”[1]
If you saw the Post’s headline, you might have winced at the “click-bait” ridiculousness of it, thinking, “no way most Americans think that,” and wonder, “what’s the real story?” Sadly though, some people might have seen that headline and agreed, “hell yeah, screw individual liberty!” Or, you might have sacrificed the time and read the article, only to find that the headline is a gross over-simplification of what the poll actually reveals. And if you were truly curious and so inclined (i.e., you sincerely care about the erosion of what should be our most cherished individual liberty – freedom from government interference with our right to speak our mind), you might have downloaded the poll results[2] and learned that the questions are not phrased with the specificity necessary to elicit a useful answer, and you might surmise from reading the pollster’s own analysis that vast liberties are taken in the assessment of the information.[3]
But what the underlying poll (and its predecessor polls from the Polarization Research Lab[4]) reveals is the most frightening and most problematic part – the part about which not enough people are talking – most Americans do not understand their own rights.
Only America believes -- No, … Only America insists that if you honestly feel that the First Amendment goes too far, …
you do not understand the rights guaranteed by the First Amendment,
you do not understand why exceptions to those rights are so few and strictly applied, and
you do not understand why it cannot matter that you are offended, upset, misled, or emotionally hurt by another citizen’s expression.
If you honestly feel that the First Amendment goes too far, maybe you do not deserve the very protection it provides.
Only America suspects that a “majority of Americans” (to use the poll’s metric) don’t fully comprehend the First Amendment. In fact, based on most social media videos depicting the state of American knowledge, Only America would venture to say the number is much higher than just a simple majority. Just start with something as basic as, “are ‘freedom of speech’ and the First Amendment the same thing?” Chances are, less than 50% of Americans realize that the two are not co-extensive. But forget about the literal words of the First Amendment – how about we just ask, “what rights are addressed in the First Amendment?” Just list them. Do you think even 25% of Americans could answer with all five rights recited in the First Amendment: namely, freedom of religion, freedom of speech, and of the press, and the right to assemble and petition the government?
For the record, the First Amendment to the Constitution of the Unted States of America, 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.[5]
Hopefully, since we hear so much about freedom of speech and freedom to protest in the news these days, most Americans would at least reference freedom of speech, freedom of the press and the right to protest (“the right of the people peaceably to assemble, and to petition the government for a redress of grievances”). Then again, hoping that most Americans know that those rights are included in the First Amendment of the U.S. Constitution might be asking a lot … but that is not the point. The point is that many Americans don’t understand what those rights entail, or said another way, what is and what is NOT protected by the constitutional guarantee of those rights.
But even more importantly, how do we go about protecting such important rights if we don’t even understand them?
Well, … let’s start a Healthy Discussion.
Congress shall make no law abridging the freedom of speech. Congress shall make no law abridging the right of the people peaceably to assemble and petition the government for redress of grievances. Congress shall make no law. Congress! The First Amendment prohibits the government[6] from making laws that abridge, or “cut into,” your right to say what you want, and your right gather with others to complain about what you don’t like. So, the government cannot stop you from saying stuff and gathering peacefully to ask the government to change stuff. Doesn’t say a word about preventing your private employer, or the stores you shop at, or your local private club from stopping you … However, there are limitations to the prohibitions on the government – sometimes the government can stop you from saying things. For example, a (perhaps) more well-known example of a constitutionally “permissible” limitation on freedom of speech is that one may not yell “fire” in a crowded theater[7] – as that could very well create a public safety issue as people stampede for the exits in the dark, and therefore, the government has a justifiable interest in preventing you from expressing yourself in that way. It should be noted that this example is often criticized as a misused and unfortunately over-used rationale for limiting free speech.[8] It is often said that the “yelling ‘fire’ in a crowded theater” rationale is simply a “placeholder justification for regulating any speech that someone believes is harmful or objectionable.”[9] Only America agrees – sadly, it is too often used improperly to limit speech. The courts of the United States have long held that laws that curtail (or “abridge”) freedom of speech can still be constitutional in certain circumstances – immediate and actual public safety being one such circumstance. There are a gazillion resources on the intricacies of American Constitutional Law and Jurisprudence,[10] and we encourage you to read one or more, (but please don’t go to law school – we don’t need more lawyers – study a science or learn a skill). Nonetheless, the key point here is that it is the government that is restricted. The government may not abridge rights.
The First Amendment doesn’t mention private entities. If your neighbor decides to set up shop on your front lawn or your front stoop and voice his concerns (peacefully) through a bullhorn about how the local fraternal lodge has wrongly changed their rules and have called his bar tab due immediately – do you think that’s his constitutional right to do so? Of course not. You’re going to ask him to stop and/or leave your porch and property, and you have every right to do so, and the local police can arrest your neighbor for trespass if he does not stop/leave. Whether you care or not, you have the right to abridge his freedom to assemble and protest on your property. Private property rights trump freedom of speech and the freedom to protest.
But what if your neighbor was protesting your local township’s new rule? If he is on your property, your private property interests still trump his right to expression and protest. But what if he is on the public sidewalk in front of your house? Or in a township park? Or on the sidewalk across from the Township Municipal Building? Well, in each case it’s increasingly more likely he does have a right to protest – to petition the government for redress. Is his right unfettered? No – there can be limitations. Get back to that treatise on American Constitutional Law that you picked up … there are many nuances to what the government may and may not do to limit expression and public protests. A good, short primer on this can be found at The First Amendment: Categories of Speech. Much of this is a basic two-part analysis: first, (assuming the speech is not unprotected – true threats, defamation, fraud, etc.), determine what level of legal scrutiny the law or limitation requires based, for example, on whether it is the law or limitation on expression is content-neutral, that is – does the law or limitation apply only to only certain expression or is it universal and across the board? If it’s universal (content-neutral), it’s less likely to seem like censorship of certain ideas and may receive less scrutiny. For example, a law that prohibits all gatherings and speeches during rush hour is content-neutral, but a law that prohibits alternative energy demonstrations during rush hour is not content-neutral. Second, what is the government’s interest in restricting expression? The safety of the public can be a legitimate government interest. Some levels of scrutiny require a “compelling” government interest. Maintaining the peace can be a legitimate government interest. Restraining the advertisement of an “unpopular” group is not a legitimate government interest. The main point here is that courts apply complex and stringent tests to government limitations on free speech, as they should. If someone wants to dance naked in the middle of the Brooklyn Bridge during rush hour to protest the federal government’s latest law on some topic of interest to that person, do they have a constitutional right to do so? Of course not – for a number of reasons, including public safety and public decency. But that doesn’t mean we don’t need to be vigilant and circumspect whenever the government does try to limit free speech.
What about the content of speech? Can the government limit what words you can say or how you can express yourself? Beyond “public safety”? Sure – we see it in obscenity laws, false advertising, and threats of violence or intimidation. Violence (actual, not emotional or metaphysical) is never protected speech. But what is violence, what is intimidation, and what is just political rhetoric? An easy example could be the difference between someone saying, “we should obliterate the entire country of [Insert: Russia/China/North Korea/etc.],” and someone saying, “we should grab our guns and go shoot up the local [Insert that country’s] cultural center next Saturday.” The former is nothing more than a generalized, ambiguous political message disparaging an entire nation considered hostile to our own by many. The latter is a much more concrete call for violence against a specific location, specific people and at a specific time. The former is protected political speech, the latter is intimidation and a true threat and not protected by the First Amendment. The government cannot punish you for saying the former. The government can arrest you for saying the latter. We are seeing this very distinction today in the way various Americans are reacting to the Israel-Hamas war.[11] Calling for attacks on Jewish students at a specific school in the immediate near future is a true threat and not protected. Chanting anti-Zionism slogans at an otherwise peaceful assembly in a public space is protected political speech – no matter whether you agree with the speech or not.
Sometimes it’s much more difficult to draw the line. One of the most well-regarded and famous American constitutional law scholars of the 20th century, Gerald Gunther – a Stanford law professor who clerked for both Judge Learned Hand and Chief Justice Earl Warren of the Supreme Court, and whose own family fled Nazi Germany in 1938 after their synagogue was violently vandalized, and who was singled out by his own elementary school teacher in Germany and called a “Jew-pig” – famously argued against Stanford’s 1980’s adoption of a student rule of conduct that sought to limit hate speech by stating, “[t]he lesson I have drawn from my childhood in Nazi Germany and my happier adult life in [the United States of America] is the need to walk the sometimes difficult path of denouncing the bigot’s hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law.”[12]
It is an unfortunate truth that the speech that needs to be protected from censorship the most is often the most offensive and most unpalatable speech. It’s kind of like Fourth Amendment limits on police action – it is rarely law enforcement action with respect fine, upstanding, law-abiding citizens that ends up before the Supreme Court to determine what is and is not an unreasonable search … we can’t let our distaste for the criminal himself determine our level of protection of our constitutional rights.
So, where does that leave us? Well … you cannot call for violence against people with whom you disagree. And you do not have a constitutional right to assemble and protest on private property. Those are easy. Only America believes the vast majority of Americans understand these basic principles.
But, what about the right to protest in a common area of a private university that receives public funding? Is that public or private property? Would that university’s administration be a “government actor” in limiting a peaceful protest in such an arena? Those are certainly reasonable questions and could be a whole ‘nother other Healthy Discussion. However, regardless of whether it’s a public university, the First Amendment does not give anyone the right to destroy property or commit acts of vandalism at that publicly funded university. The First Amendment does not give anyone the right to block the access of others to public places – your rights do not supersede the rights of others.
So here we are, back at the beginning – the poll referenced in the New York Post article. Why should you care that “a majority of Americans think the First Amendment goes too far”?
You should care because if that is true – that a majority of Americans believe that – the rest of us must all work to correct that. The free exchange of ideas is the absolute bedrock of every freedom and right we hold dear as Americans. Without freedom of speech, we are not free. Government limits on speech must be absolutely minimized.
The second reason you should care about the poll referenced in the New York Post article is that it is sadly emblematic of our how we are fed and how we consume information. An organization populated with academics from leading Ivy League institutions collects data on political polarization and citizen’s beliefs on our core rights (The Polarization Research Lab), then teams up with another reputable organization that advocates for free expression to publish the results of that data collection (FIRE), and then news outlets (e.g., centersquare.com, the New York Post, etc.) publish articles summarizing the results with headlines that claim more than half of Americans don’t agree with the scope of our most fundamental rights. How many people do you think looked at the poll and the data? One of the organizations involved, FIRE, says, “only 32% of Americans said they would be ‘not at all’ comfortable with the government limiting the free speech of pro-Hamas protesters.” Where do they get that? Well, they asked 1000 Americans, “[h]ow comfortable, if at all, would you be with the United States limiting the free speech of people rallying in support of Hamas?” What a horribly phrased question! “Comfortable,” “limiting,” “rallying in support” … how much more ambiguous could they have been? What exactly does “comfortable” mean? Limit them how exactly? Does “rallying” mean gathering? Or does “rallying” mean blocking traffic, starting fires and physically intimidating people? You could ask those same 1000 people to define those three things and get 1000 different shades of gray! And if you combine those that answered “not comfortable at all” with those who answered “not very comfortable,” you would get 70% … 7 out of ten Americans are not comfortable with the government limiting free speech regardless of whether they agree with the protestors. Is it any wonder where the expression, “there are liars, damned liars, and statisticians” comes from?
The vast majority of Americans understand the value of free speech and the right to protest. The vast majority of Americans value private property and their own right to their peace. You may not agree with a protestor, but most Americans value the right of that person to protest peacefully. It may be someone else’s protest today, but it could be your protest tomorrow. Let’s educate our fellow Americans and encourage our fellow citizens to learn about their constitutional rights, rather than simply accept irresponsible reporting that makes it seem like all hope is lost.
Do you agree? Are we wildly off base? We want to hear from you. Tell us we hit the nail on the head, or that we’re off our rocker. Join the Healthy Discussion and consider wearing Only America™ Patriot Gear to show you love the United States of America no matter where you stand.
[1] Jessop, L., “Majority of Americans Believe the First Amendment Goes Too Far: Poll”, New York Post Online, August 7, 2024, (originally published by www.thecentersquare.com on August 7, 2024), https://nypost.com/2024/08/07/us-news/majority-of-americans-believe-the-first-amendment-goes-too-far-poll/ (Accessed August 8, 2024).
[2] National Speech Index – July 2024 Topline Results, Foundation for Individual Rights and Expression (“FIRE”)/Polarization Research Lab, https://www.thefire.org/sites/default/files/2024/07/NSI-July-2024-Topline-Results.pdf (Accessed August 8, 2024).
[3] Based on polling data which indicates that only 47% of respondents completely disagree with the statement, “the First Amendment goes too far in the rights it guarantees,” the Chief Research Advisor at the FIRE Organization, Sean Stevens, said, “Evidently, one out of every two Americans wishes they had fewer civil liberties, … [m]any of them reject the right to assemble, to have a free press, and to petition the government. This is a dictator’s fantasy.” FIRE Website, August 1, 2024, https://www.thefire.org/news/poll-majority-americans-believe-first-amendment-goes-too-far-rights-it-guarantees (Accessed August 8, 2024).
[4] https://polarizationresearchlab.org/
[5] U.S. Constitution, Amendment I., see, e.g., https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-amendment-i
[6] While the First Amendment states “Congress shall make no law,” this has been interpreted by the Supreme Court to include all branches of government and extends to the States via the 14th Amendment. Gitlow v. New York, 268 U.S. 652 (1925).
[7] Schenck v. United States, 249 U.S. 47, 52 (1919), “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
[8] Kosseff, J., “America’s Favorite Flimsy Pretext for Limiting Free Speech,” The Atlantic, January 4, 2022, https://www.theatlantic.com/ideas/archive/2022/01/shouting-fire-crowded-theater-speech-regulation/621151/ (Accessed August 10, 2024).
[9] Kosseff, J., “How to Yell ‘Fire’ in a Crowded Theater,” Reason Magazine, December 2023, https://reason.com/2023/10/24/how-to-yell-fire-in-a-crowded-theater/ (Accessed August 10, 2024).
[10] The list would go on forever – there is everything from “Constitutional Law for Dummies,” to full-on Constitutional Law texts used in law schools across America. Hell, go visit the Constitution Center in Philadelphia!
[11] Creeley, W., “As Campuses Reel, a Reminder of the First Amendment’s Boundaries,” FIRE Website, November 3, 2023, https://www.thefire.org/news/campuses-reel-reminder-first-amendments-boundaries (Accessed August 11, 2024).
[12] Casper, G. (2004). Gerald Gunther, 26 May 1927 · 30 July 2002. Proceedings of the American Philosophical Society, 148(4), 494–497. http://www.jstor.org/stable/1558143 (Accessed August 11, 2024).