Commentary: What the First Amendment does and what it doesn’t do – Albany Times Union

Most people know, or think they know, that the U.S. Constitution guarantees free speech.

Well, yes and no. What the First Amendment to the Constitution actually says is this:

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.

Congress shall make no law ... means that the government cannot criminalize speech, and we all know that there are exceptions, the most well known being falsely shouting Fire! where that would create a panic and possible loss of life.

We have laws criminalizing lying when one has sworn to tell the truth (perjury), and a somewhat obscure law making it a crime to lie to the FBI. I didnt even know about this one until 2002 Louisiana state Insurance Commissioner James Brown was charged and convicted for it. So if the FBI ever wants to talk to you, about anything, either decline or have a lawyer present should anything you tell them turn out to be untrue.

There is also a long history of cases in which the government has tried to limit political speech. In recent years, rarely has the government prevailed, and if it did, it was later overturned.

As Supreme Court Justice Hugo Black stated in Mills v. State of Alabama, Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.

As for dangerous political speech, in Schenck v. U.S., the court articulated the clear and present danger standard, but in Brandenburg v. Ohio, the court modified it to speech advocating violence that was imminent and probable for speech to be curtailed.

This constitutional provision does not stop private actors from stifling speech. The biggest offenders are employers, who often place restrictions on what you can say about the company, at risk of firing. Bad news, but no state action, so no violation of free speech in the constitutional sense, unless, of course, you work for the government. Then you may be covered.

The difference bears on the current kerfuffle regarding free speech over Spotify podcaster Joe Rogan, who has hosted people who give out incorrect medical information on COVID-19, which, if believed, could result in deaths. Some musicians whose music is on Spotify asked that their work be taken off.

Some people screamed, Censorship! Others said, Good for them! Cries of Free speech! rang on both sides.

This is not a free speech issue. The podcaster has not been arrested. Nothing he did violates the law. The musicians who object are exercising their rights to not be associated with his content.

This brings me back to what free speech means. If you believe the First Amendment does not apply to lies, well, yes, mostly it does. And if you argue that Rogans right to free speech is being curtailed, no, it is not. We are allowed to speak as we please, even if what we say isnt true, but we are not immunized from the consequences of what we say.

The late writer Christopher Hitchens said in his memoir, Hitch 22, that one of the main reasons he decided to become an American citizen was his respect for the protections of speech, and the press, in our First Amendment, protections not explicitly provided in his native Great Britain.

Lets not misconstrue what these great rights mean.

Now retired, J. Michael Malec of Albany formerly worked as a legislative lobbyist for the American Civil Liberties Union in Louisiana.

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Commentary: What the First Amendment does and what it doesn't do - Albany Times Union