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Jan. 20, 2021

Ask the expert: The First Amendment and free speech

“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 Amendment to the U.S. Constitution

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law, discusses the First Amendment and freedom of speech. The First Amendment Law Clinic is the only program in the country solely dedicated to the protection of student speech and press rights.

 

In simple terms, what is the First Amendment and what does it do?

The First Amendment to the United States Constitution is part of the Bill of Rights and protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press and the right to petition. The First Amendment is one of the most important amendments for the protection of democracy.

 

Nancy Costello
Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law.

When was it created?

The First Amendment is part of the Bill of Rights. To protect individual rights, the framers of the U.S. Constitution added 10 amendments to the document in 1791, four years after the Constitution was ratified.

 

What does the First Amendment say about freedom of speech?

Generally speaking, it means that the government may not jail, fine or impose civil liability on people or organizations based on what they say or write, except in limited circumstances.

 

President Donald Trump recently was suspended from a number of social media platforms. Is this a violation of his First Amendment rights?

Facebook, Twitter, Instagram or any similar social media platform can censor any person’s speech because they are private companies. Censorship is when an entity punishes individuals for their speech or prevents the speech from being expressed. Free speech is the ability to express one’s thoughts and opinions without fear of being punished by the government. 

 

The First Amendment protects against the government from censoring speech. None of these social media platforms are part of the government, so President Trump cannot claim his First Amendment rights have been violated.

 

President Trump was impeached a second time for “incitement of insurrection.” What is incitement speech?

Incitement speech is not protected by the First Amendment. Incitement speech is when someone encourages lawless action, and that lawless action is imminent and likely. It could be argued that Trump incited the mob violence on Jan. 6 in his summoning and assembling of supporters at the White House rally, his repeated claims that he won the election and his exhorting the crowd to go to the Capitol. Among other things, the president told the crowd, “If you don’t fight like hell, you’re not going to have a country anymore.” Not long after Trump’s speech, members of the crowd converged on the U.S. Capitol, broke through doors and windows, invaded the Senate and House chambers and private offices, and had violent clashes with police resulting in deaths.

 

What types of speech are not protected under the First Amendment?
Types of speech that aren’t protected include:

  • Incitement to imminent lawless action
  • Defamation
  • True threats
  • Fighting words
  • Perjury
  • Blackmail
  • Solicitations to commit crimes
  • Child pornography
  • Obscenity defined by community-based standards

 

Does the First Amendment only protect U.S. citizens?

There’s no citizenship requirement for First Amendment protection. If you are a resident of the United States, you have freedom of speech, religion, press, assembly and petition.

By: Kim Ward

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