The First Amendment reads:
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. The first thing to notice here is that, contrary to popular opinion, this amendment does not give people rights to free speech, freedom of religion, freedom of the press, or freedom of assembly, or the right to petition the government for redress of grievances. In fact, the Constitution does not give people any rights whatsoever. Instead, it operates as a restriction on the interference with rights — rights that preexist both the government and the Constitution. In other words, the reason that the Constitution called the federal government into existence was to protect the exercise of pre-existing, fundamental rights. The purpose of the Bill of Rights was to ensure that the government didn’t use such power (the power to protect rights) to infringe or even destroy such rights. The second principle to notice in the First Amendment is that the restriction operates on Congress, the elected representatives of the people. The reason that principle is important is that it recognizes that democratically elected officials are likely to use their powers to violate people’s fundamental rights, including freedom of speech, press, and religion. Thus, the First Amendment (and the rest of the Bill of Rights) operates on the implicit acknowledgment that democracy is no guarantee of freedom and, in fact, is a tremendous threat to freedom. That’s why our ancestors, unlike so many Americans today, talked in terms of establishing a republic in America rather than a democracy. Freedom of speech Let’s examine the freedom-of-speech clause of the First Amendment. Contrary to what many people think, the free-speech guarantee operates only as a barrier to censorship by government officials, not on the right of private entities to refrain from publishing material they don’t like. For example, consider a newspaper that publishes an article favoring a certain policy in the community. Imagine that opponents to that policy demand that the newspaper carry an article opposing the policy and that the newspaper refuses to do so. Some people would undoubtedly cry, “Censorship!” and claim that the First Amendment was being violated. They would be wrong on both counts. Restrictions on the exercise of free speech are censorship and First Amendment violations only when some law or governmental action is involved. When private entities make personal decisions about what to publish and not publish, they are exercising the fundamental rights of private ownership and liberty — the types of rights whose exercise the government is supposed to protect. Let’s consider a famous example involving the misapplication of the free-speech principle in order to better understand it. In the 1919 U.S. Supreme Court case of Schenck v. United States, Justice Oliver Wendell Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But Holmes got it wrong. The reason that a man ordinarily cannot scream, “Fire!” in a theater is that the owner of the theater hasn’t permitted it. That is, when a patron enters the theater, he does so on terms established by the owner of the theater, which implicitly include a rule against disturbing the other patrons. Let’s assume, however, that for some strange reason a theater owner decides to create a rowdy environment and openly declares that anyone who enters his theater can scream, yell, dance, and even issue false warnings of “Fire!” As the owner of the theater, that would be his right, just as it would be the right of people to refrain from patronizing that theater. Thus, freedom of speech is ultimately grounded in private-property rights. The owner of a newspaper has the right to publish or not publish materials because the newspaper belongs to him. As the owner of the newspaper, he has the right to refuse anyone’s request to communicate through his newspaper. No one has a duty to furnish someone else the means by which he is able to communicate his views. If one person can’t persuade another to publish his views, he is free to open his own newspaper. It’s the same principle with respect to movie theaters. The owners of movie theaters have the right to restrict the conduct of patrons and, for that matter, to refuse to show R-rated movies. By doing so, they are not “censoring” their patrons or the distributors of R- rated movies; they are simply exercising their right of private ownership. What if the Congress enacts a law prohibiting theaters from running R-rated movies? That would constitute censorship. That would constitute a violation of the First Amendment.
Updated November 4th, 2010 ©