First Amendment Confusion
By Amy Kerr Hardin | May 22, 2021
It’s amusing to watch folks on the far right clutch their pearls over their favorite orange leader being banned from social media, claiming it’s a “free speech” issue. They may want to Google “First Amendment” some time to attempt to find the elusive constitutional protection they claim. It’s no surprise that those who so thoroughly misunderstand the Second Amendment might find themselves befuddled by the First — the amendment that was so important, it got top billing.
Rep. Lauren Boebert (R – Colorado) put her Constitutional ignorance on full display when she recently Tweeted this: “I guess Facebook thinks the first amendment only applies to leftists.”
Unfortunately, there are plenty of Americans across the political spectrum who are confused about what constitutes protected speech. The First Amendment applies only to government bodies, including public schools, restricting speech. Social media outlets can ban anyone from their platform. They are privately-held entities. Think of it like throwing out a disruptive customer — something we’ve seen plenty of over the past year.
In our zeal to curtail hate speech, we sometimes forget another important aspect of the First Amendment. In a 2017 ruling, the Supreme Court found that simply saying something hateful remains protected speech. Justice Sonia Sotomayor wrote, “States must prove more than the mere utterance of threatening words — some level of intent is required.” It must be proven to be a “true threat.” This is the standard prosecutors must follow when deciding to press charges. Hateful and hurtful speech rarely rises to the level of criminal recourse.
All eyes are on Traverse City Area Public Schools as they attempt to navigate the minefield of often conflicting and overlapping policies and statutes governing hate speech, electronic or not. No school district wants to be a test kitchen for constitutional law. To believe the path is clear and obvious is to misunderstand the complexities presented. These anti-bullying laws and policies are new on the books and have not been put through the kind of vigorous legal scrutiny that will eventually hone them — and preferably keep them in step with the First Amendment.
There are a couple of important actions pending before the judiciary on the topic of free speech in public schools.
A case that went before the United States Supreme Court for oral arguments last month involves the use of social media and free speech. It was brought by a 14-year-old high schooler who dropped a number of precision F-bombs on her school after being bypassed for the softball team and the varsity cheer squad. Her posting occurred off-campus, but the school took disciplinary action against her when another student shared her post with a school coach.
Dubbed the “mean girl” case, a ruling is likely months away, but the oral arguments were illuminating as to how the high court was leaning. ACLU lawyer Witold Walczak argues that if schools can police students’ online speech, it will bleed over into censoring cultural, political, and religious communications. The justices expressed unease over the potential chilling effect on student free speech. Justice Samuel Alito said, “I’m quite concerned about the effect of this on freedom of speech. I think we need clear lines.”
Comment from the high court did acknowledge that online bullying is a serious problem and might be a piece of the student speech issue. However, there is Supreme Court precedent that indicates the threats must be not only directed at the target but also credible. As to whether the courts would be willing to extend that to school policy positions remains untested for now.
Another interesting case is working its way through the federal courts. A popular white teacher was disciplined for hanging a Black Lives Matter banner outside her classroom door at Robert E. Lee High School in Jacksonville, Florida, a predominately black school, whose school colors are blue and gray — Confederate colors — and whose teams are named the Generals.
She did so to demonstrate that her classroom is a safe space for her students in the wake of one of them being killed by police. The district ordered her to remove the banner, claiming it violated school policy prohibiting employees from on-campus “political speech.” This beloved teacher refused and was subsequently reassigned to non-teaching duties.
A lawsuit was filed on her behalf by the Southern Poverty Law Center asserting the school district had violated her First Amendment rights. Though typically, public schools have measurable say over permissible employee speech, this case may be seminal to redefining some of those boundaries.
Rachel Arnow-Richman, a professor of labor law at the University of Florida, points out that a 2006 Supreme Court ruling endorsed governmental power to partially restrict public sector workers’ speech. However, a conflicting Florida law says that school districts are prohibited from infringing on employee Constitutional rights.
That’s not the only conflict. Richman describes the problem thusly: “That’s to say, this general rule that public employees do not speak for themselves but speak for the government and lack First Amendment protections is at odds, I would say, with our societal interest in wanting teachers to have leeway to communicate and teach students about current issues, bringing to bear their expertise as educators.”
Interpreting and protecting the First Amendment is fraught with uncertainty, but the least we can do as Americans is resist the temptation to morph our understanding of the Constitution to fit policy goals.
Amy Kerr Hardin is a retired banker, regionally known artist, and public-policy wonk. You can hear and learn more about the state of Michigan politics on her podcast, www.MichiganPolicast.com.