We the People: Contrary to popular belief, the First Amendment doesn’t guarantee the right to all speech

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What does the Bill of Rights protect?

Among the rights protected in the Bill of Rights – the first 10 amendments to the Constitution – is speech.

And speech, along with religion, press, and the rights to assemble and petition the government are at the top of the list, in the First Amendment.

While The Constitution was adopted in 1789, the Bill of Rights was not approved until enough states ratified it two years later.

The wariness around the Bill of Rights directly stemmed from a division between Federalists and Anti-Federalists, Gonzaga law professor Ann Murphy said.

The Federalists believed that the Bill of Rights would obstruct the idea of a strong, central government while the Anti-Federalists believed that power should lie in the hands of the states.

The Bill of Rights was finally ratified in 1791 after the Massachusetts Compromise saw the Federalists prevail over the Anti-Federalists.

Written by James Madison, the Bill of Rights has roots in the Virginia Declaration of Rights and protects American citizens from government intrusion and overreach through the first 10 amendments to the Constitution, Murphy said.

Liberties guaranteed in the Bill of Rights, besides those in the First Amendment, include: the right to keep and bear arms; the prohibition against forcing citizens to house soldiers without consent; freedom from unreasonable searches and seizures; the rights to due process of law, to avoid testifying against oneself when accused of a crime and to be fairly compensated when property is taken for public use; the rights to a speedy and public trial by jury, the ability to call witnesses and use of a defense attorney when accused of a crime; the right to a jury trial in civil cases; and the prohibition against excessive bail and “cruel and unusual punishment.” The last amendment in the Bill of Rights says that powers not specifically given to the federal government are reserved for the states.

In other countries such as North Korea, citizens can be arrested for criticizing their government. The freedom of speech prevents this from happening in the United States.

But the amendment, adopted on Dec. 15, 1791, does not specify what the freedom of speech protects. It has taken courts to help define its parameters.

And like many of the amendments, the freedom is not absolute.

Supreme Court Justice Oliver Wendell Holmes famously wrote in a 1919 opinion, for instance, that “the most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” In that decision, the court upheld the prosecution of two socialists who distributed flyers urging people to disobey the draft for World War I, according to an overview of the case from Oyez, an online project form Cornell University and other legal sources. In 1969, the court created the current standard, which says Congress can limit speech if it is likely to cause “imminent lawless action.”

These days, a lot of debate about free speech revolves around technology and social media. One side of the debate argues that social media companies need to crack down on lies and hate speech, both of which have at times promoted violence and threatened democracy as those believing the lies take action, such as during the Jan. 6 riot at the U.S. Capitol.

But the First Amendment doesn’t apply if those restricting speech, like social media companies, aren’t the government.

“Some believe that they have free speech rights on Facebook or Twitter. These are not government entities, and the Bill of Rights does not apply,” Murphy said. “Facebook and Twitter may suspend accounts at will. There is no free speech protection.”

U.S. Rep. Cathy McMorris Rodgers, R-Spokane, has been a vocal critic of social media companies, particularly Facebook, for removing speech.

“I believe that the best response is not to shut it down and not to try and please all sides,” McMorris Rodgers said in a recent interview. “I believe that the answer to misinformation is more speech, I believe that nobody’s 100% right and nobody’s 100% wrong.”

Wayne Unger, a visiting assistant professor of law at Gonzaga University, said it is a common misconception that the Bill of Rights prohibits private persons and businesses from impeding an individual’s right to freedom of speech.

“The Bill of Rights applies only to the government, and every level of the government (federal, state, county, municipal). For example, the Bill of Rights does not protect Jane Doe from Twitter by deleting her posts. Rather, it protects Jane Doe from being arrested for peaceful protests on public sidewalks,” Unger said.

Murphy agrees with Unger when considering the confusion of First Amendment boundaries. Consequences such as accounts being taken down and tweets being deleted are likely when spreading controversial free speech online.

“Individuals are often confused between the freedom of speech and being held to consequences for freedom of speech. The Bill of Rights protects our speech from government intrusion, even if it is hate speech,” Murphy said. “However, many times there are consequences for the use of free speech.”

Ultimately, the Bill of Rights does not protect what private entities choose to do with controversial content such as hate speech.

Rather, the Bill of Rights gives citizens of the United States freedom from their government censoring their speech.

“No one will appear at our door to arrest us for saying something critical of the government,” Murphy said.