Forty-five words that were first written with a quill pen 230 years ago form what may be the most consequential sentence in United States history.
But that sentence also is one of the most misunderstood as recent comments from some of our leaders illustrate.
The sentence I refer to is the First Amendment. It is the Constitutions guarantee of fundamental rights of the American people to live their lives without government butting in.
For reference, here is what the amendment says in full: 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.
Some graduates of top law schools must have been snoozing in class when constitutional law was being taught. Sens. Josh Hawley and Ted Cruz are a couple of examples.
Hawley, R-Missouri, is a Yale law school graduate. Cruz, R-Texas, is a Harvard law school graduate. Before they were elected to the United States Senate, Hawley was Missouri attorney general and Cruz was Texas solicitor general.
It would not be surprising if someone without legal training did not fully grasp the nuances of those 45 words in the First Amendment. But it is troubling that Ivy League lawyers could be so wrong about such a fundamental part of life in America or be so willing to deliberately mislead the public.
Conservatives have groused that social media companies like Facebook and Twitter favor content with a clearly liberal bent. Cruz recently tore into corporate executives during a Senate hearing and demanded to know, Who the hell made Facebook the arbiter of political speech?
Hang on: The answer to Cruzs question is coming shortly.
Hawley was the first senator to rise in support of President Donald Trumps push to get Congress to reject the electoral votes from a handful of swing states that Joe Biden carried. After the violence at the Capitol on the day of the electoral vote certification, one of the nations big book publishers decided it no longer wanted to publish a new book Hawley has written.
The senator responded by accusing the publisher Simon & Schuster of a direct assault on the First Amendment by backing out of their deal.
Both Cruz and Hawley displayed a flawed understanding of the relationship of the First Amendment to companies like Simon & Schuster, Twitter or Facebook.
Any shade-tree lawyer should know the First Amendment prevents the government from stopping you from expressing your opinions or from demonstrating peacefully. It does not stop businesses from acting, or reacting, on free speech matters.
Hawley is free to take his manuscript to another publisher. He can decide to publish the book himself. But absent a contract clause prohibiting Simon & Schuster from canceling the deal, the company cannot be compelled to publish Hawleys book or anyone elses book.
People who are kicked off Twitter or Facebook have other options for disseminating their views, ideas and commentary especially when they live in the White House, with a press briefing room down the hall and a flock of journalists waiting there every day.
Just as Hawley cannot force Simon & Schuster to publish his book, I cannot compel the New York Times to publish these columns. Nor can I force the Trump family to put a stack of my political commentaries at the registration desk in each of their hotels.
Likewise, just as National Football League team owners have the legal right to punish players who kneel during the national anthem, Facebook or Twitter have the legal right to suspend or drop a user who violates the companies terms of service.
The First Amendment does not require Twitter and Facebook to give accounts to anyone any more than the Second Amendment requires gun manufacturers to sell you a gun.
The essayist A.J. Liebling put this First Amendment concept succinctly years ago when he wrote, Freedom of the press is limited to those who own one.
One of my friends who is not an essayist offered this not-so-succinct explanation of the intricacies of the First Amendment last week:
The government cannot punish you for waving a Confederate flag or wearing a 6MWE shirt or saluting rioters or yelling, You will not replace us. That would be censorship.
But your employer can fire you, your social media can suspend you, your publisher can drop you, and your neighbors can shun you. That is not censorship. That is your employer, your social media, your publisher, and your neighbors exercising their own rights.
Your right to free speech does not take away others right to react.
A footnote: If you are not familiar with the 6MWE acronym, organizations that study white supremacists say it is used as shorthand to claim that the 6 million Jews killed in the Holocaust werent enough.
That is a despicable position to take. The government cannot punish you for thinking or spreading a despicable message. But your boss can.
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- Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch - April 6th, 2021
- First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF - April 6th, 2021
- Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech' - NPR - April 6th, 2021
- "Fake News" and the First Amendment - University of Dayton - News Home - April 6th, 2021
- Bar owners went beyond First Amendment rights with their 'raised voices, interrupting,' AG argues - Cambridge Day - April 6th, 2021
- Clarence Thomas blasts Section 230, wants common-carrier rules on Twitter - Ars Technica - April 6th, 2021
- Drones (and the First Amendment) take on regulatory overreach in North Carolina - Chatham Journal Weekly - April 6th, 2021
- The university response to offensive speech often reflects a feeble commitment to diversity, equity and inclusion - Poynter - April 6th, 2021
- Online event examines the relationship between free speech and firearms - Nevada Today - April 6th, 2021
- Official Website for the Governor of Maryland - maryland.gov - April 6th, 2021
- Opinion: Remembering the Core Four Pillars of Journalism Amid a Pandemic - Times of San Diego - April 6th, 2021
- Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF - April 2nd, 2021
- Is There a First Amendment Right to Tweet? - JSTOR Daily - April 2nd, 2021
- Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome - April 2nd, 2021
- The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org - April 2nd, 2021
- Why It's So Hard to Prosecute White Extremists - The Marshall Project - April 2nd, 2021
- Loeb School announces free spring classes and writing workshops - The Union Leader - April 2nd, 2021
- Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt - March 31st, 2021
- Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security - March 31st, 2021
- The First Amendment: Rarely Popular, Always Necessary - The Dispatch - March 31st, 2021
- The First Amendment: What It Is & What It Isn't - WSHU - March 31st, 2021
- Drawing a Line Between Internet Trolls and the First Amendment - Government Technology - March 31st, 2021
- BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology - March 31st, 2021
- Courts: Bystanders have right to record police under the First Amendment - Newsday - March 31st, 2021
- RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press - March 31st, 2021
- Pronouns in the University Classroom & the First Amendment - Reason - March 31st, 2021
- Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post - March 31st, 2021
- Pronouns and the Philosophy Professor - The Wall Street Journal - March 31st, 2021
- Letters to the editor | Opinion | journalpatriot.com - Wilkes Journal Patriot - March 31st, 2021
- Jane Briggs-Bunting, who championed the 1st Amendment, dies at 70 - Detroit Free Press - March 31st, 2021
- Was a Trump critic's 1st Amendment violated by Yale? We're about to find out. - MSNBC - March 31st, 2021
- The Cyberlaw Podcast: Can Editorial Middleware Cut the Power of the Big Platforms? - Lawfare - March 31st, 2021
- Judge In Chauvin Trial Rules That Underage Witnesses Can Testify - NPR - March 31st, 2021
- An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security - March 31st, 2021
- Rep. Walsh refuses to vote as House approves firearms ban at Capitol grounds - The Daily World - March 31st, 2021
- Sixth Circuit Rules That Religious Freedom Entitles Professor To Debate Students Gender Identity In Class - Above the Law - March 31st, 2021
- Attorney: Owosso Barber Won't Pay $9000 In Fines Following 'Operation Haircut' Protest - WKAR - March 31st, 2021
- Court: University of Iowa officials can be held liable for First Amendment violations - The Gazette - March 23rd, 2021
- 'Clear and gross violation of First Amendment freedom': Andy Harris faults government over COVID battle with church - KPVI News 6 - March 23rd, 2021
- Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much - Techdirt - March 23rd, 2021
- Roundtable debate discusses UPD and First Amendment rights - Binghamton University Pipe Dream - March 21st, 2021
- How the meat lobby is waging war on the First Amendment - Crain's Chicago Business - March 16th, 2021
- Requirements are an assault on the First Amendment - Antelope Valley Press - March 16th, 2021
- Biden Justice Department inherits tricky tech, media law issues - Reporters Committee for Freedom of the Press - March 16th, 2021
- Letter: Why the left wants the First Amendment modified - Daily Journal - March 16th, 2021
- Opinion | Iowa protest bill stifles free speech and assembly through harsh penalties - UI The Daily Iowan - March 16th, 2021
- Sunshine Week and a Show Me State statesman - The Highland County Press - March 16th, 2021
- Twitter Sued Texas AG Ken Paxton over First Amendment Concerns - Dallas Observer - March 16th, 2021
- Ammon Bundy arrested after missing trial on trespass charge - ABC News - March 16th, 2021
- Santa Monica Lawmakers Withdraw Law That Would Have Restricted Certain Forms of Protest - SM Mirror - Santa Monica Mirror - March 16th, 2021
- Control over online speech should be in the hands of users, not the government - Bucks County Courier Times - March 16th, 2021
- Court clarifies protections for testifying workers, but rules they can still be demoted - coloradopolitics.com - March 16th, 2021
- Who Gets First Amendment Protections These Days, Anyway? - Slate - March 7th, 2021
- Let's keep Tennessee's knee off the First Amendment - Johnson City Press (subscription) - March 7th, 2021
- Eyman Commentary: I'm Committed to Appealing Restrictions on the First Amendment - Centralia Chronicle - March 7th, 2021
- After settlement, freedom of speech, yellow sign and First Amendment 'stand tall in Brookfield' - Worcester Telegram - March 7th, 2021
- Judge Andrew P. Napolitano: Silencing free speech -- when the First Amendment is not enforced, this can happen - Fox News - March 7th, 2021
- Editorial: The public square doesn't always get First Amendment protection - The Bulletin - March 7th, 2021
- Lets keep Tennessees knee off the First Amendment | Opinion - Daily News Journal - March 7th, 2021
- Keep Tennessee's knee off the First Amendment - Murfreesboro Post - March 7th, 2021
- Impeachment and the First Amendment, Revisited Reason.com - Reason - March 7th, 2021
- Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners - Techdirt - March 7th, 2021
- Mountlake Terrace High School again honored with First Amendment Press Freedom Award - MLT News - March 7th, 2021
- Death threats and rule changes cause some to fear for the First Amendment in New Port Richey - WMNF - WMNF - March 7th, 2021
- Student Editor Sues University Over Alleged First Amendment Violation - The College Post - March 7th, 2021
- Do we not understand the 1st amendment? - The Wahkiakum County Eagle - March 7th, 2021
- Gov. Greg Abbott touts bill to stop Twitter, Facebook from banning Texans - The Texas Tribune - March 7th, 2021
- Commentary: I'm committed to appealing these ridiculous restrictions on the First Amendment - The Reflector - March 7th, 2021
- Mayor Frey tells WCCO radio that the city is ready for trial - 1033 Amp Radio - March 7th, 2021
- Florida Reporter thinks Trustee needs permission to speak; received Emancipation Proclamation and First Amendment in response to FOIA request -... - March 7th, 2021
- Trump Impeachment Trial And The 1st Amendment Debate : Trump Impeachment Trial: Live Updates - NPR - February 14th, 2021
- Trumps claim impeachment violates the 1st Amendment and Brandenburg v. Ohio, explained - Vox.com - February 14th, 2021
- WATCH: Trump not protected by First Amendment for inciting insurrection, Rep. Raskin says - PBS NewsHour - February 14th, 2021
- The Insurrection, Police Accountability, and the First Amendment - brennancenter.org - February 14th, 2021
- Opinion: Guns shouldn't trump the First Amendment - The Missouri Times - February 14th, 2021
- Comment: Trump's lawyers have it wrong on First Amendment, too | HeraldNet.com - The Daily Herald - February 14th, 2021
- Highlights of Day 4 of the Trump Impeachment Trial - The New York Times - February 14th, 2021
- The Atlantic The Great Free-Speech Reversal - The Atlantic - January 29th, 2021
- First Ammendment Rights What Is the First Ammendment? - Reader's Digest - January 29th, 2021
- [OPINION] Does the First Amendment apply to what you post on social media? - Asian Journal News - January 29th, 2021