We need to talk about the First Amendment

November 18, 2018

Take away the right to say “fuck” and you take away the right to say, “Fuck the government.”

~Lenny Bruce


Congress shall make no law...abridging the freedom of speech.  

~First Amendment to the United States Constitution



Your rights under the First Amendment depend almost entirely on where you are when you speak and who is limiting your right to speak.


If you decide to take a stroll through the local courthouse with a jacket declaring, “Fuck Donald Trump,” you probably cannot be punished criminally for that, so long as violence does not erupt (Cohen v. California, 1971). If you don this jacket at your private workplace, however, you should have a plan for when you get fired.


Feel like burning an American flag during a presidential convention, and violence does not ensue? You are likely good to go (Texas v. Johnson, 1989).


Hankering to burn a cross because you are a member of the KKK? You might also be good to go, depending on how your locale has crafted its law (RAV v. City of St. Paul, 1992).  


Are you a comedian riffing on the words you cannot say on television (George Carlin’s “shit, piss, fuck, cunt, cocksucker, motherfucker, tits”)? Your station will have to pay hefty fines (FCC v. Pacifica Foundation, 1978).


Broadly speaking, we have a right to express ourselves freely. The real issue is what punishments you can legitimately receive. Can you be fired? Can you be jailed?


To answer this, you must initially determine who is attempting to sanction your speech. The First Amendment only applies to government attempts to punish what you said. The First Amendment does not apply to non-governmental entities. If you are a government employee or a student at a public school, you have First Amendment protections, which means the government lacks complete authority to punish your speech (Tinker v. Des Moines Independent Community School District, 1969).


Your political speech rights are broad, especially after work hours. Statutory limits, such as derogatory speech about protected classes based on religion, gender, race, sexual orientation, disability, etc., can be punishable.


If you are a private employee, you have no free speech protections at work. You may have statutory protections, such as for whistleblowers or protections written into your contract. But apart from that, you can be fired for basically anything you say that pisses off your boss. So, how does all this play out in real life?


Can Colin Kaepernick be punished by the NFL for taking a knee to protest police killings of black people? Unfortunately, yes. Kaepernick, like every private employee, can engage in political protest, but the cost might be losing his job, absent contractual protections.


But can President Trump order the NFL to sanction its players? That is what has seemed to occur, and that does have Constitutional implications.


What about Tim Tebow, who took a knee against abortion? Again, private employers can sanction whatever speech they want unless statutes exist that limit that right.


What about Kim Davis, the Kentucky Clerk of Court who refused to issue marriage licenses to gay couples after marriage equality became the law of the land? She went to jail briefly for contempt of court, and the governor of Kentucky rectified the problem by stating that marriage licenses unsigned by the Clerk were still legal.  


However, Davis swore to uphold the Constitution when she became clerk. It does not matter if the mandates of the Constitution evolve under her tenure; she still has to comply with them. She did not, and that violated her oath of office—but she could not be fired. Davis would have to resign, be impeached, or be voted of office, which just occurred in this year’s midterms.


Roseanne Barr posted racist, homophobic, xenophobic tweets and she got fired; Samantha Bee said “cunt” and didn’t get fired—WTF? Both are private employees, presumably subject to the contracts they signed. Samantha Bee might have some contractual protections as a provocative host, and Roseanne Barr might have the opposite mandates. Either way, it’s a matter of contract law.


I value our democracy’s commitment to free speech more than anything besides our belated commitment to equality. But the exercise of this right can come at a cost. It is very important to value free speech even when the law can punish it. In a marketplace of ideas, we find the right road ahead for our democracy.


The information and opinions in this column do not constitute legal advice nor establish an attorney-client relationship. For your legal needs, please consult an attorney about the specifics of your case.


Leslie Dollen was a criminal and juvenile defense attorney for over 23 years with the Wisconsin State Public Defenders office, and a Legal Studies instructor at  the University of Wisconsin-Superior. She is a community activist around sexual assault, domestic violence, and reproductive health.

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