Pop quiz: True or false? The First Amendment is absolute in its protections of speech and of the press?
That is not a trick question. And the sad fact is study after study suggests most Americans will not know the answer.
A 2016 survey conducted by the Newseum Institute’s First Amendment Center found that 39 percent of Americans could not name a single First Amendment freedom. A majority have never read the First Amendment at all. And if those numbers were anywhere close to accurate in 2016, we can expect the situation to have worsened in the era of “alternative facts.”
For the record, the First Amendment guarantees five freedoms: Freedom of religion, of speech, and of the press, the right of assembly and the right to petition the government for a redress of grievances.
But to answer our pop quiz question, the amendment is NOT absolute in its protections. And — this is most critical given the current political discussion — it does NOT apply to private actions. Note the first phrase: “Congress shall make no law … ”
The First Amendment applies to government action, not private. The government, with some extraordinarily high-bar exceptions, cannot regulate speech or the press. The amendment protects the rights of citizens to express the most controversial, even offensive political views without worrying the FBI will come knocking. The amendment gives newspapers the right to publish editorials that criticize the government in the harshest terms without fear the doors will be padlocked by authorities.
These are remarkable protections not common in the world even today.
But the key to understanding the First Amendment in the current situation is understanding it applies to government action only.
As a private business, a newspaper has the right to determine its content. If you submit a letter to the editor of this newspaper and it is rejected, your First Amendment rights are not being violated. The government has not interfered with your speech. You can go to the nearest street corner and read your letter out loud, or nail a copy to a utility pole, or copy it and hand it out in your neighborhood. That is free speech.
Twitter, Facebook and YouTube are businesses, not government entities. President Trump’s First Amendment rights were not violated when the social media platforms banned his posts. The people who run those companies simply decided the president’s posts were not in compliance with their terms of service and standards and so banned him. Amazon, Google and Apple are private businesses. They did not violate the First Amendment rights of the conservative social media platform Parler when they dropped it from their app stores. Parler is free to find another way to distribute its platform.
Missouri Sen. Josh Hawley, the Republican lawmaker who first led the effort to reject Joe Biden’s Electoral College win, is facing a terrific backlash for his actions. Among other things, his book publisher canceled his contract. A lawyer and career politician who knows better, he immediately claimed his First Amendment rights were being violated. Hogwash. His publisher simply did not like what he had done and so showed him the door. He is free to find another publisher — if he can.
As noted, there are limitations and First Amendment law can be utterly confusing and far too complex — especially where it relates to the digital space — to properly address here.
But it is important to understand that not all speech is protected. The old cliché, you cannot yell “fire” in a crowded theater, is perfectly true. Political speech is protected. Those attending the president’s “Save America” rally last week had every right to express in the strongest terms their anger over the election outcome and their fears for America’s future.
Those who stormed the Capitol building to deliver political messages in carved graffiti, or in their own feces, or in written manifestos left on the rotunda floor cannot claim First Amendment protection.
The confusion over the nature of First Amendment rights is more than an academic concern. If Americans do not understand the rights they are granted by the document at the foundation of our system then there is a greater likelihood those rights could be compromised or taken away altogether.
Steven A. Smith is associate professor emeritus in the University of Idaho School of Journalism and Mass Media. He was a newspaper reporter and editor for 40 years.