In Which I Provide a High School Level Explanation of “Freedom of Speech” To Morons

The greatest scholar in American history on the First Amendment

Let me first explain that I have not taken a course on the First Amendment, nor have I taken the second half of my school’s Constitutional Law Course (yet). This is also a blog mainly designed to provide me an outlet for whining my half-baked political ideas without spamming the Facebook feeds belonging to my poor friends. Given these facts I feel it necessary to disclaim the following blog post by saying that the First Amendment analysis here is something that any US Citizen with a high school education should know before whining about someone stepping on their “rights”. So the myriad of my lawyer (or pre-lawyer) friends who might read this blog can keep their better informed opinions to themselves (or not).

This post is also not meant to condemn people in general for being concerned with growing restrictions on people’s right to speech in this country. The First Amendment is without a doubt the most important contribution that our country has given the rest of the world in demonstrating the basic necessities for a functioning democracy. With the “right to privacy” in our society becoming a narrower and more fleeting legal concept, the right to be free from government interference in our ability to speak our mind has been laden with consequences that people should consider atrocious and disgusting. That said, the lack of proper education in civics and government (a conscious campaign of the 1% in my mind) has left many people completely unaware of what this important right means.

“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 was (and in some countries remains) a very radical concept for a government to provide its citizens. Lets think about this idea for a minute. The American Constitution is essential providing everyone regardless of their class, biological make up, or beliefs the almost unfettered ability to say whatever the hell is on their mind and not have to worry about the most powerful embodiment of societal power (the government) to tell them to stop under penalty of criminal or civil action. However as powerful as this essential right is, there are some considerable exceptions, and recent events in the news provides us with a handy primer of what sort of “speech” is not necessarily protected by the First Amendment.

Assassination Threats

Welcome to the harsh side of "American Exceptionalism" kid

Even the broadest interpretations of the First Amendment carve out some exceptions for people dumb enough to advocate for the murder of public officials. For example, U.S.C. Title 18, § 871 makes threatening the President of the United States a class D felony, and the language of the statute provides for an expansion of the common law concept of “assault”. This law was further explained in Watts v. US where the court distinguished the crime of making an actual “threat” from hyperbolic jackassery. Nevertheless the Secret Service (understandably) takes these things pretty seriously, and they have the right to investigate someone who makes a comment that can be interpreted as threatening the life of the President to see if said douche is serious.

However even if someone is not criminally liable for advocating or ambiguously stating something with blatantly violent undertones concerning politics, it does expose someone to the wrath of public opinion. Unfortunately for blowhards everywhere, the Bill of Rights does not protect someone from the non-violent punitive consequences of speech when it comes from members of the public. This concept has been shorthanded as “the marketplace of ideas”. In short, if your idea sucks, the public has the right to demonstrate how displeased they are in a variety of ways.

This is something that poor Lauren Pierce of the University of Texas at Austin learned the hard way last month when she tweeted this genius piece of political analysis:

“Y’all as tempting as it may be, don’t shoot Obama. We need him to go down in history as the WORST president we’ve EVER had! #2012.”

Unfortunately for Lauren people failed to see the apparent “joke” that Pierce was trying to make and she was forced out of her prestigious position as President of the College Republicans (by the way, is there anymore universally insufferable group of asshats than “College Republicans” in higher education? I can only think of two worse groups: Baseball Players or Physics Professors with tenure). When she faced public condemnation, the Vice President of the College Republicans (who later faced her own public experience with jackassery) attempted to defend this joke threatening our first black president with another statement that should depress anyone who supports public universal education:

“I don’t really see anything wrong with it…. It’s just a personal comment, not representative of any group. Just freedom of speech, you know?”

Umm no. The Secret Service didn’t lock up Pierce, nor did the President respond with anything as tone deaf or idiotic as this gem from the Bush Administration. Rather society universally decided that Lauren Pierce was a terrible person who needed a metaphorical public flogging for a few days in order to learn what is socially acceptable to say. She wasn’t asked to leave school, nor was the local campus Klavern that she headed defunded and forced to disband. In a way she is lucky; if she were employed at the time the publicity that she generated as a result of her stupidity would probably get her fired (unless she happen to be a best selling author or US Senator).

More on the Marketplace of Ideas

TI sporting a pretty brave mustache for a declared heterosexual

Recently the Rapper TI resurfaced from his latest jaunt in federal prison to give VIBE magazine this nugget of analysis concerning Tracy Morgan’s idiotic homophobic rant:

“Man, I will say this, the funniest joke I ever heard Tracy say during a stand-up was, ‘C’mon man, I think gay people are too sensitive. If you can take a dick, you can take a joke.’ [Cracks up laughing.] That shit was funny to me. And it’s kind of true.’ While T.I. makes clear that he supports anyone’s sexual preference, he then connects, in his opinion, a current oversensitivity among gay people with a consequential and ironic offense of the First Amendment. “They’re like,‘If you have an opinion against us, we’re gonna shut you down.’ … That’s not American. If you’re gay you should have the right to be gay in peace, and if you’re against it you should have the right to be against it in peace.”

Dear TI, with all of your experience with the American legal system I thought that you would have picked up a more complex idea of what the First Amendment does and does not protect. Here is the main problem with your thought: it is TOTALLY “American” to call Tracy Morgan, and by extension you, a giant piece of shit. It’s ironic but your right to say these horrendously stupid things (which do nothing but demonstrate your fear of throbbing penises) also allows the rest of us to ask that NBC fire you or choose to no longer buy your increasingly crappy records. You really have no right to live in “peace” from criticism.


One of the interesting quirks in “Free” Speech in this country is that we also imported most of our jurisprudence from the English. This importation included the adoption of “defamation”, which according to my handy Black’s Law Dictionary is when someone commits an act that:

[Harms] the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern the plaintiff is constitutionally required [i.e. the 1st Amendment demands it] to prove both the statement’s falsity and the defendant’s fault”.

Now the laws concerning Defamation are a “mess” (my torts casebook actually said this on the first page discussing the law). For the sake of simplicity let’s say that if someone knowingly (or recklessly) says something about a public figure that they know is false and that public figure is harmed as a result, the defendant can expect to pay some damages to that harmed public figure.

Now “defamation” is a word that gets tossed around in the public sphere on a pretty regular basis. This probably because it is a big fancy word that sounds scary as hell and is fun to accuse some schmuck of committing it in an argument. But the recent troubles of Presidential Candidate/crank Ron Paul demonstrate, “truth” will always act as a defense against defamation.

And that’s the problem with Ron Paul supporters crying “defamation” whenever someone calls the Congressperson a “racist”, “homophobe”, or “ill-informed jackass” (that one comes from me) those leveling those accusations can consider themselves immune from civil damages simply because these accusations are TRUE (or at least can be reasonably interpreted that way). So before you start a flame war and throw around the word “defamation”, supporters of Paul must realize that people can accuse Ron Paul of having dumbass opinions on race, sexual orientation, and economics because the validity behind these allegations can be largely proven in court.

Hate Speech

One of the newer issues addressing the First Amendment is so called “hate speech”. This concept usually involves incendiary statements made by someone to provoke violence against another individual on the basis of the victims gender, race, ethnicity, sexual orientation, etc. Usually the statute involves some sort of sentence enhancement for an individual who commits a crime (such as a murder) that is based on an expressed hatred for that victims protected social group.

Some enterprising assholes in the GOP made a big deal out of the Matthew Shepard and James Byrd Hate Crime Prevention act, which President Obama signed into law in 2010. Their idea is that this legislation would prevent some wonderfully evil pastors, political leaders, or radio hosts from airing their hateful opinions in the public sphere under penalty of Federal law. Here’s the problem with this jackass idea.

Fred Phelps: The world's most accomplished troll

In 2010, the same year that this law was passed, the Supreme Court in an 8-1 opinion denied civil damages to the father of a dead Iraq War Veteran whose funeral was picketed by (the personification of evil) Fred Phelps on the basis of Phelps’ issue with America’s “love” of homosexuality. In Snyder v. Phelps the court lamented the assholery of Phelps and his cult, but upheld an expansive view of the First Amendment which allowed assholes like the Reverend to publicly express whatever they thought of gay people without fear of civil or criminal reprisals.

It is in this decision that we can truly isolate the intellectual dishonesty of those on the right claiming some sort of existential threat to the first amendment in creating hate crimes legislation. No law banning “hate speech” as a matter of law will ever survive Constitutional scrutiny. What has been continually restricted beginning with Chaplinsky v. New Hampshire has been “fighting words”, or statements that: “incite an immediate breach of the peace”. Republicans feigning concern with the rights of the accused on this one issue are doing so knowing that intent and motive go directly towards proving guilt in a crime or tort, but that without a separate illegal act against the interests of a person no court can condemn a citizen on the basis of their terrible opinions. In claiming their concern with hate crime legislation as a broad concept, the right wing is really doing nothing more than attempting to disguise their own hatred and prejudice with an extremely flawed “slippery slope” analysis in the hope of preventing any legal protection to the groups that they despise.

So at the end of the day what should you take away from this? Basically feel free to speak your mind, but be aware that unrepentant stupidity in any form has consequences. But rejoice, in America these consequences probably don’t involve being tossed in jail. So troll away!


About stefanbc

I am an attorney who works mainly in criminal defense, child welfare, and medical marijuana advocacy. I live in Long Beach with my wife and four pets. View all posts by stefanbc

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