Guest post: A Lawyer’s Riff On The First Amendment

I Don’t Agree With What You Say, But I Will Defend To The Death Your Right To Say It.

First thing’s first, basic disclaimer, because lawyers are so used to the legal world that we just assume people are waiting to sue us: These are all opinions and what we call “black letter law,” as in simplified and pretty set concepts, and none of this is to be taken as legal advice, merely the pontification of a lawyer who likes the sound of her own writing. You want legal advice? Go hire a lawyer.

This month is a damn good one for a post on the First Amendment, and it’s not just because I’m doing a blog tour to promote my new book.

We all know what happened last Friday, what happened all over social media and in big cities across the country, and what has been happening the past year or so whenever we open our mouths.

I’m not going to say it’s just the special snowflakes on the left coming out of the woodwork and bashing everyone right of Lenin who are the problem, because I’m sure there are people like that on the more conservative side, but the snowflakes are the ones I’ve run in to so that’s mostly what I’ll be referencing.

And if I come off as condescending in this post, that’s directed towards the snowflakes who have been pissing me off lately, not at you, the reader. If you are a snowflake, you have it coming.

Okay, groundwork… and fairly roundabout groundwork at that, laid, now onto the Constitution.

The First Amendment:

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.

First off, the Constitution does not apply to dealings between individuals. It is only applicable to the government dealing with others. So when you post your beliefs on Facebook and the snowflake blasts you, reports you, or blocks you, he’s not violating your rights. He’s just an intolerant ass. When Facebook and Twitter ban conservatives, it’s not a violation of their First Amendment rights. There could be a discrimination argument there, which is based in laws passed by Congress, not the Constitution itself.

(Yes, there is a difference. Congress can pass laws to protect people from others, but when they do, they have to make sure they are within their powers delineated in the Constitution.)

This also extends to employers. If you post something on social media and your employer sees it and fires you over it, it’s not a Constitutional issue unless your employer is the government. Now, this isn’t to say there’s not a legal issue, there could be something covered in employment laws (that whole Congress passes laws thing), but it is not the First Amendment.

As an aside, I did this post with a few adjustments on a different blog and there were a lot of commenters. One went out of his way to illustrate the above point while being a general asshole. He made some comment about the First Amendment being irrelevant because he can’t say what he wants in the workplace since women are there and if he exercises his First Amendment right to say what he wants, he gets reported to HR and fired.

And as others pointed out, employers are private parties (unless you work for the government) and if they want to tell you something you can’t say in the workplace, then that is not under the First Amendment. They also pointed out women have nothing to do with this, and were betting the guy was an asshole and got in trouble for it at work too.

And the big point here is, you can be an asshole, at work or on social media, just like this guy was, and the government can’t put you in jail for it!

That’s huge.

We as Americans take this for granted so much that we have no real concept of what it means to not have the right to free speech. We are so used to not having to worry about the government coming after us for us shooting off our mouths that we started thinking free speech means no one else can punish us for what we say, because in the past two hundred years, we have never had the government punish us for it.

So when the snowflakes go off on social media, in articles or, I don’t know, on stage at an awards show, yes, that is protected by the First Amendment, and all of us telling them to shut the f#*k up and go back to work is as well.

This is the main issue I’ve seen pop up on social media the past few weeks. People keep invoking the First Amendment when it comes to celebs shooting their mouths off or people getting into fights on Facebook, but none of that actually involves the First Amendment (unless you say the government couldn’t stop her from saying it).

A celebrity voicing her opinion at an awards show with millions of viewers is distasteful, arrogant and stupid, and could get her in trouble with the network (it won’t since pretty much all of Hollywood agrees with her politically), but her saying it was protected by the First Amendment only to the extent that the government couldn’t stop her. Most of the time, when I see people talking about that, they’re saying something along the lines of people should stop bashing her for saying it since it was protected by the First Amendment.

Hahahahaha. No. You can be as pissed off as you want and call her whatever names you want and the First Amendment isn’t going to stop you. For some reason, the snowflakes have gotten it into their heads that the First Amendment is there to shut up people when they bash others for what they say.

Let’s get one thing clear. The First Amendment, and the Constitution in general, is there to restrict the government’s powers. It is not there to restrain the individual!

This may be a pet peeve of mine.

That is the beauty of free speech in America. No matter what the snowflakes keep trying to shove down our throats, free speech applies to all, even if you don’t like what the other side is saying, and it is not meant to be used to shut up the other side, even if they’re telling you to shut up.

Yep, someone telling you to shut up does not infringe your First Amendment rights.

This doesn’t mean there aren’t limits to these rights. There are. But they have to be very narrowly drawn and there has to be a good reason for them.

The basic example is you can’t falsely yell fire in a crowded theater. Not because this would be annoying or offensive, but because it would incite panic and cause a dangerous situation.

This is from a real court case, Schenck v. United States, where the Supreme Court ruled that the First Amendment does not protect “dangerous speech.” In Schenck, the court ruled language that was a “clear and present danger” was not protected when Schenck was passing out flyers urging people to resist the draft in WWI.

The actual Schenck case was later overruled, and the “clear and present danger” standard was ruled to be an insufficient reason for restricting the First Amendment. It was replaced with the standard that speech had to do more than merely encouraging lawless behavior, it had to “incite imminent lawless action.”

So the people who called for trouble at the Inauguration on Friday were actually protected by the First Amendment, up to a certain extent. In very general terms, someone can post on Facebook that the president should be shot or they hope he is, or that they hope the White House is blown up, but doing something that would count as actually inciting it wouldn’t be protected. What would count as inciting? Well, that depends.

By the way, it depends is every lawyer’s favorite answer. Courts in cases draw lines here and there around specifics to say what is or is not allowed, but so much has to do with context that outside of extensive research, I could not give a more specific example without risking giving too specific of legal advice that could get me in trouble if anyone followed it.

If you rile up a crowd and get them to riot, that probably would not be protected. If you pay people to riot, that’s really not protected, but if you just say they should in a social media post, ehhhh, probably protected.

Which brings us to another part of the First Amendment.

“…the right of the people peaceably to assemble.”

This one actually is not as complicated as the media makes it sound. See, there’s this one little word in there that draws a nice line.

Peaceably!

We the people have the right to protest, not to riot. The second people start breaking the laws, as in attacking people, burning shit down, and looting, no, not protected by the First Amendment. And protesting on private property, no, not protected.

The laymen pretending to be lawyers on social media also may say the protesters have the right to restrict traffic because it’s peaceful. Like when students park their asses in the middle of a busy street or a few thousand people march across major roads, blocking traffic for an hour.

No, they’re wrong, that’s not protected.

Yeah, let me say that again, when there is a peaceful protest, no, they do not have the right to interfere with/break laws, and that includes traffic laws. So why do protests sometimes block traffic? When it’s perfectly legal, it’s because they got a permit from the city to do so. This is where they got the paperwork, gave notice, yada yada, and the city was able to set up systems to direct people around the areas that would be taken up for a while, kind of like they do when there’s a parade, so there is minimum disruption.

That’s perfectly legal.

But those dumb kids from the private and very expensive university who decide they aren’t going to let any cars through the busy intersection during rush hour because their (queue the tears) candidate didn’t win? Yeah, those dumbasses are actually breaking the law.

Now here’s the kicker, just because they break the law, doesn’t mean the cops are going to do anything about it.

Yeah. Let that sink in.

The cops can choose to not enforce the law and just let the brats throw their temper tantrum at the expense of everyone who actually work for a living and are just trying to get home.

So why? Why would they indulge these selfish children? Honestly, I can’t say for sure. I’d arrest their spoiled, useless asses and toss them in the brig till mommy and daddy sprang them. The best I can guess is the brats are louder and messier than the professionals going home from work and it’s just easier to let the brats scream because the pissed off professionals are too busy with lives to get back at the city for letting the interference happen.

And that’s the heart of the problem with dealing with these antics. The group of snowflakes screaming are loud and difficult and can make your life hell because they have nothing better to do, and the adults they’re pissing off and inconveniencing do.

So what do we do? Bend over and take it because we’re adults and you couldn’t pay us to throw temper tantrums in the streets because we have that little thing most of my generation has tossed aside called pride?

Of course not. This is what we do. We handle it like adults. We go around the roadblocks, we vote in local leaders who will give the kids a much needed spanking, we write to the masses to get them to see our side and not just the narrative that’s been shoved down their throat like… sorry, not that kind of blog.

One of the ways we get around the leftists and encourage people to explore differing views and actually think outside the usual narrative pushed by the left is by making our own art. And here is my not so subtle push of my new book, Psychic Undercover (with the Undead). Psychic Ariana with the FBI has to go uncover as a singer at a club to catch a serial killer… but things get complicated when it turns out it’s a vamp club.