Friday, July 30, 2021

The problem with (and for) first amendmenters

We keep hearing claims that the First Amendment allows x or the prevention of y is a violation of someone's First Amendment rights.Yet again and again, whatever happened was not and this prompts the twin questions of does the claimant not know or does s/he know and is consciously misrepresenting those rights. Both have educational implications.

The first relates to the education of the speaker or writer, the second to that of the audience or listeners and readers. A third and to me more important matter is that every right brings with it responsibilities, but more of that below.

In essence, the First Amendment protects speech, religion, press, assembly and the right to petition the government ... from restrictions of the government. However such protection is not absolute, for example, saying or writing untrue things about another person or shouting "fire" in a crowded theater are restricted.

This is the first problematic claim by First Amendmenters. "Free speech" does have some restrictions and so their not knowing where a line is drawn, or knowing and intentionally crossing it, is not a First Amendment issue. It is hard to believe that any public figure, business leader or politician, does not know and understand this, and so any such transgression must be queried as must any acceptance of such.

Of course, the definition of what does and does not and should and should not fall under this exception is a matter for the courts and for great legal minds. Personally, I think that some offensive language should be outlawed in some situations, but I am not the boss of this. 

Schools must teach that there are certain restrictions on what we can do, and that we have a responsibility to each other to respect them. Your "right" to ignore a red light directly affects, and may even remove, my right to live. My "right" to play loud music late at night impinges on your right to sleep, to enjoy your home and even to work effectively tomorrow.

The second problematic claim by First Amendmenters is that "free speech" exists everywhere. It doesn't. The language is clear : congress cannot restrict speech and courts have over the years extended this to any form of government, eg state-level, and to any organ, eg public schools. This is often described as the public square idea, that you can say what you want in the public square.

Of course, you should respect the place and the audience, for example glorifying Hitler or child slavery should be constrained, but these are ethical or moral choices and not legal. The law is clear. If you want to state in the public square that all left-handers are the spawn of Satan you are legally able to do so. However again, schools must teach that there are certain social expectations of what we can do, and that we have a responsibility to each other to respect them. Swearing in a football game is ok; swearing in a museum is not.

The problem I mentioned is that the First Amendment applies to government and public areas; it does not apply to private property. If you come into my home, I can tell you what to say and not to say and you can choose to leave if you do not want to comply or I can throw you out. Stores and malls are private property and they can make as a condition of entry for example, no swearing or no religious proselytizing or no short shorts.

Private and independent schools have long used this as a point of differentiation, USP if you will. Religious schools offer religious classes or teach "science"and "history" from their religious perspective. I used to say in various pitches that a non-public school can say "tearing the heads of chickens is wrong"; a public school can only say. "don't do it here". This is of course hyperbole, but the point is that public schools must allow things that a private school can proscribe.

When First Amendmenters claim that they are being prevented from speaking at a private university, or from having a rally at a hotel, or from wearing a message on a t-shirt in a private store or from posting certain content on a private social media they are being inaccurate. The owner(s) of the private space can do this because they are specifically excluded from the First Amendment or because the First Amendment specifically allows them to do so.

When a First Amendmenter makes such a claim, as a public figure, business leader or politician s/he knows that it is false and s/he is relying on the ignorance of the audience. Sadly, and increasingly frequently, such a reliance works and this is where schools have a role.

Schools must teach the difference between private and public, and between people and government, and how major laws such as the First Amendment apply in this sphere. They must also teach that rights apply in the public area, and that each right involves responsibilities, and that privileges apply in the private which can be withdrawn, and how to behave appropriately in both. Civic education is really civil education.

**Please leave your comments or queries below.**

Further reading

https://www.mtsu.edu/first-amendment/page/things-you-need

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