**Disclaimer: By writing this post, I am in no way claiming to be a constitutional expert. I am commenting as a now retired attorney, who did ace Con Law, and did have many opportunities to see all this stuff play out in the legal arena for almost 20 years. Give it whatever credibility you choose. It’s my blog, and I’m speaking freely 🙂
I have intentionally not posted too many articles to the political section on my blog because we seem to live in a time where such issues are truly filled with volatility. By that, I mean people tend to get a bit EXPLOSIVE (imagine that word in flaming font that WP sadly doesn’t support) about their political opinions and there is plenty of hate-speech circulating about the Net without me stirring the pot on Word Press.
Word Press is more of a happy place for us writers, as it should be.
And while there are many web forums where people do speak freely, and at times in threatening manners, from what I’ve read, not many people understand what this means from a legal perspective at all. Not even close.
So, today I thought I would speak about speaking. 😊 It seems like a particularly appropriate topic given CEO Jack Dorsey’s announcement that Twitter would ban political ads on its social media platform.
And before people start screaming that Twitter’s decision is somehow violating someone’s rights, let me just say from the beginning, it’s not. Plain and simple. Not even close.
And, I hate to tell you, there are no Constitutional rights to smoke cigarettes or eat cheeseburgers either. That statement may actually irritate some people a lot more than Twitter’s decision to ban campaign ads. But it’s also true.
As any good attorney would tell you, when it comes to the law, any law, you start with the text. So here it is in all its glory, The First Amendment to the Constitution:
“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 word is a dead giveaway. “Congress.” Then add four more, “shall make no law . . .”. Twitter is not Congress. And Twitter doesn’t pass laws. Twitter is a private entity. Unless there is some other law out there talking about freedom of speech and regulating what a private entity can do, or not do, this Amendment doesn’t apply to Twitter, or any other private entity for that matter.
It’s really not that tricky.
This perfectly illustrates the first, and biggest mistake, people usually make about the Constitution. It doesn’t apply to everyone or every entity, it applies to the government and government actors.
Your next-door neighbor, that guy who really pisses you off by doing all kinds of stupid shit like throwing his trash in your yard — he can’t violate your Constitutionally protected rights. He may break other laws, and may truly be a nuisance, but he is not Congress and he is not making any laws.
Your private employer, who has a no smoking policy is not violating your rights. Smoking is not even speech, or at least I’ve not seen a court declare it as such. And I can’t think of any other part of the Constitution that would protect this action in a private employer’s workplace. That’s not to say that all actions do not equate to speech, some do. We’ll back track to that in a moment.
And if a government entity wants to place a tax on eating cheeseburgers, because it has to pay for a lot of the negative health effects that result from obesity, that’s likely to be legal too. (We can delve into the types of legal scrutiny with which a reviewing court might regard such a regulation when deciding to uphold it or not later, but not today).
The way the entire Constitution should be viewed is to look at it as being a contract. A contract between the government and the people. Then you can start objectively reading it.
Next you should know that Constitutional rights are not unlimited. Why? Because other people and the government have competing interests and competing rights. So, the courts have delineated and upheld many of what are called reasonable time, place, and manner restrictions to our right to speech.
So yes, a political demonstration may require a local permit. And yes, the public park can close at midnight, and people can be prevented from having a demonstration at that public forum between the hours of say midnight and 7:00 am, when they open again. I’m just picking these times at random, but you get the point.
And no, you don’t get to sit on someone’s private front-door porch swing, or even march on the public sidewalk in front of that person’s private home, at 3:00 am, shouting through blow-horns and waving banners about your favorite pet peeve. Come back at a reasonable time and keep yourself at a reasonable distance.
Now as to just what constitutes speech. That’s a little trickier, and we better look to court decisions for a little help here. Speech is not just the spoken word. But it’s also not smoking cigarettes or eating cheeseburgers.
Speech does include symbolic action, like burning a flag, and that is perfectly legal. Although, to be safe, you might want to watch out for where and when you are burning one. And no, I don’t find this to be an unpatriotic act at all. I believe that exercising your rights, no matter what anyone else thinks, is a patriotic statement. Four generations of my family fought in all branches of the US military to protect these rights. That would be meaningless if no one exercised them.
Another example of symbolic speech would be wearing a religious pin on your uniform, while working for a government employer. Because the employer is a government actor, not a private employer, it would have a hard time denying your right to do this.
Commercial speech and political speech are also protected, but in a little bit different ways. I can come back another day to talk about the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and what effect that has on political advertising dollars, but no point to getting overly technical today. Suffice it to say, that being able to finance and air political advertising with a willing media entity is different that having a federal law in place that restricts this activity.
Facebook says it accepts political advertising dollars and that it will not be concerned with the content of those ads, even if they are patently false. Twitter has responded by saying it is concerned with the content, and the power social media has with influencing voters, so it has chosen not to accept those dollars and not risk airing false propaganda.
I think it’s a good move on Twitter’s part.
Photo: Every US citizen should have one of these. I have several. It’s a very powerful document for so few words it uses.