By Sandy K. Johnson
In an era when journalists are verbally and even physically attacked for doing their jobs, a look back at how the First Amendment was created and evolved over 200 years might be helpful.
The ink was barely dry on the Constitution when some Founding Fathers became agitated about protecting certain inalienable rights from an overbearing federal government. “They insisted there be a Bill of Rights” in exchange for their support, according to Stephen Wermiel, a professor at the American University Washington College of Law.
With an assist from James Madison, they settled on this language:
“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.”
Fact: It wasn’t even the First Amendment at the time. It was the third, but the first two weren’t ratified, so it de facto became the First Amendment in the Bill of Rights.
That was 1791. Over the next 200-plus years, the people and the government – largely through the courts – painstakingly gave definition to the First Amendment.
What it does not protect: incitement to commit violence, obscenity, child pornography, true threats, defamation, blackmail, lying under oath or soliciting someone to commit a crime for you.
The courts have other tests to determine if speech will be protected. For example, are rules against certain speech based on the content of the speech or the viewpoint it represents? Do regulations restrict speech or conduct? Do regulations prevent speech or punish it after the fact? And does the speech in question take place on government property or other special settings such as schools, prisons or military bases.
Then there are things the Founding Fathers never could have envisioned that have been litigated in the courts: music, gestures, protest clothing such as t-shirts or arm bands, burning the American flag, video games and computer code. And now comes the “free-for-all” of social media, said Lata Nott, executive director of the Newseum Institute’s First Amendment Center. Speech online is governed by a mashup of rules from the U.S. Supreme Court, tech companies, the federal government and international standards, Nott said.
Most Americans seem to understand the breadth of the rights covered by the First Amendment. In a 2017 First Amendment Center survey, only one in five believed First Amendment protections go too far.