There’s a lot of talk about the First Amendment this week. In the most recent indictment of TFG – this one focused on the leading role he played in the conspiracy to overturn the 2020 presidential election – his defenders are claiming that he had a “first amendment right” to do the things he is accused of doing in his desperate effort to hold onto power after losing to President Biden in both the popular vote count and electoral vote totals. They go on to claim that any effort to keep him from talking publicly about the information disclosed throughout the course of this investigation and trial is an additional violation of his right to free speech.
So let’s review this amendment a bit.
History is helpful here (it often is). When the framers were forced to include this amendment in the Bill of Rights, the meaning they ascribed to it was very limited. By “freedom of speech,” they meant little beyond what is protected by the Constitution’s “speech and debate” clause, which protects members of Congress from being sued for things they say on the floor of the House or Senate. By “freedom of press,” they meant that newspapers did not have to be licensed by the government before they could publish the news of the day.
They did not mean – by any stretch of reasonable imagination – the first amendment protections that are now embodied in these few words. We have solid historical evidence that they did not mean what today’s America believes about free expression. Less than a decade after the passage of the Bill of Rights, Congress passed – and President John Adams signed into law – the Alien and Sedition Acts, which restricted everyone’s rights to say things derogatory about the people in power. It was only after Thomas Jefferson was elected President in 1800 that serious objections were raised to the “criminalization of expression.” It’s important to remember that Jefferson was not a participant in the creation of the Constitution or the Bill of Rights.
Since then, the courts have operated with an understanding that this amendment is not an absolute “all skate” to anyone who wants to say anything to, or about, anyone or anything. A functional civil society, the courts have generally opined, requires some limitation on how people can express their opinions. From the time of Jefferson up to today, public officials have made it clear that, in the words of Justice Robert Jackson in 1949,
"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
This has not resulted in absolute standards, but it is safe to say that the courts have generally moved in an identifiable direction that balances the competing needs for freedom and order. Here’s how this may be summed up:
Speech that endangers public safety is not protected by the First Amendment. The famous phrase about “yelling fire in a crowded” comes from an opinion written by Justice Oliver Wendell Holmes in the 1917 case Schenck v. United States. In an otherwise flawed opinion (Homes himself said his opinion was wrong just a few years later), Holmes said that freedom of speech cannot be absolute. He said you can’t yell fire in a crowded theater (to which I add the proviso “unless there is actually a fire.”) Later cases elaborated on the need to restrict speech that, in Holmes’s words, presented a “clear and present danger” to the community.
Obscenity is generally not afforded the protection of the First Amendment. The problem with this, of course, is in the definition of obscenity. In 1964, Justice Potter Stewart responded to a question about how he defined something as obscene by saying, “I know it when I see it.” Not very helpful. A later case noted that something could be identified as obscene if it violated community standards, had no artistic merit, or had no redeeming social characteristics. We can all agree, I think, that these are not very helpful instructions for someone who is trying to determine whether something they’ve created – a movie or a painting or a work of fiction or song lyrics– is “obscene” and could then place them in opposition to the law.
When I was teaching High School government, we talked about obscenity laws. I asked them why Michaelangelo’s iconic David (in all his full-frontal-nudity glory) was not considered obscene but that a tawdry modern novel didn’t meet the test of acceptability. In a remarkable application of common sense to this thorny problem, my students concluded that art that was “naked but old” could not be obscene. This is as good as any solution legal scholars have been able to come up with.
Libel (written) and slander (spoken) are generally not afforded First Amendment protection. In general, you are not permitted to say or print negative things about someone else if these things are untrue. (Truth is an absolute defense against accusations of libel or slander.) It should be noted that this was not the “common law” standard from a couple of centuries ago; the older rule was that a negative comment that was actually true was more harmful to public order than a false statement – particularly if the negative comment was against the conduct of a public figure or government official. Now, the standard is that you can’t make negative statements against anyone, although the standard is different for public figures versus private citizens.
Private citizens have strong protections against libel and slander. The only test is that something is that a statement be both defamatory and wrong.
Public figures don’t have such strong protections. If they are accused of something defamatory and inaccurate, they have to prove that the statement was made with “actual malice” – that is, that the person making the statement knew that it was incorrect but made the statement anyway in order to hurt the person they were defaming. The theory goes something like this: if an individual has used publicity to gain visibility and celebrity, then they cannot claim the same level of protection as that afforded to an individual whose life has been lived outside of the limelight.
There are all sorts of court orders that restrict individual freedoms in any number of ways. Lawyers can’t divulge details of their private consultations with their clients, doctors can’t talk about their patient’s medical problems at the neighborhood barbecue, and so forth. Grand jurors are prohibited from speaking about their deliberations until they are made public; defendants are routinely instructed to avoid defaming their accusers in public or private statements. So-called “gag orders,” while not routine, are common in high-profile cases. There is no constitutional right to use your celebrity status to attack the prosecutors, witnesses, or jurors involved in your case. If you want to know the impact of such public accusations, check out what happened to Ruby Freeman and her daughter, Shaye Moss, after TFG included attacks on them as part of his effort to push “The Big Lie” that the 2020 election was stolen from him
So the claims by TFG and his supporters that his actions encouraging efforts to “stop the steal,” as well as his current willingness to threaten and defame the people arrayed against him, are protected by the First Amendment are simply incorrect. The problem is that most of them (at least the lawyers defending him, the five (6?) lawyers identified in the indictment as co-conspirators, and his congressional defenders who are also lawyers [I’m talking to you, Lindsey] ) know this. They just hope that you don’t.
A favorite phrase that an attorney/friend likes to use with regard to documents is, "It (the document) doesn't say!" Although there are countless interpretations of the Bill of Rights, many of which I've read with interest, I will always remember that attorney's words.