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The First Amendment: Bonkers Or A Blessing?

An overview for anyone, including royalty, who may not fully understand the First Amendment to the U.S. Constitution.

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Prince Harry (Photo by Alastair Grant/WPA Pool/Getty Images)

As some of you may remember, Prince Harry was a guest on Dax Shepard’s podcast last month. During the appearance, Harry provided his thoughts on the First Amendment of the U.S. Constitution, stating, “I’ve got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers.”

However, Harry admitted he was no expert in constitutional law.

“I don’t want to start going down the First Amendment route because that’s a huge subject and one which I don’t understand because I’ve only been here a short time. But, you can find a loophole in anything. You can capitalize or exploit what’s not said rather than uphold what is said. I believe we live in an age now where you’ve got certain elements of the media redefining to us what privacy means. There’s a massive conflict of interest.”

You should know that Harry and I go way back, as I had once watched him plant a tree outside my former office in the Financial District. (Coverage of this momentous moment in 2011, including quotes by yours truly, can be found here.)

Thus, as one of Harry’s oldest friends, I wish to take this opportunity to offer him –- as well as anyone reading this article –- some insight into the First Amendment. Although Harry admits he is no expert on the topic, I am. Much of my legal practice focuses on defamation and Title IX law, both of which are closely intertwined with the First Amendment. And it is quite all right that Harry hasn’t studied the subject intently –- we each have our own expertise, and I myself have never perfected a proper curtsy.

In response to Harry’s expressed views, I will focus on the First Amendment’s freedoms of speech and the press, since I do not believe he is questioning American citizens’ freedoms of religion, association, or petition and assembly. However, Harry, if I am mistaken, please let me know, and I’ll circle back around to cover those freedoms as well.

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The entire First Amendment is a mere 45 words, but has resulted in centuries of debate and legal proceeding. Just to sufficiently explain the ins and outs of our freedom of speech would take an article longer than anyone is willing to sit down and read, so I will skim the surface and focus today on whether the government can limit our speech, in what circumstances they can do so, and why it is important. Because this is such a big topic, even skimming the surface of our free speech rights will take a few tries, so I will be following up with a second piece devoted to civil liability pertaining to speech and a third piece devoted to press rights and limitations. Yes, readers, you are indeed getting a three-parter. If Harry doesn’t understand, I am here to explain.

In short, the First Amendment forbids the government from preventing or punishing anyone for what they say or write. The key word is government. Private citizens have legal recourse for things that are said or written about them (i.e., claims for defamation) and private companies can police the speech of their employees. That is why a tweet can get you fired so long as you are not a public employee. So when you see that an actor has been fired from their television show due to something they said, take note that the common argument pertaining to the actor’s freedom of speech is incorrect. The television network, a private entity, can fire that actor without violating their free speech rights.

And our rights are not absolute. The government can police language that is communicated with the intent of inciting violence. So while we have protection to utter “hate speech,” there is a limit. The courts have gone back and forth about this for almost 100 years. It started out broadly, with the Supreme Court deciding that the First Amendment doesn’t protect statements that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The issue has been brought back to the Supreme Court in numerous cases, with the court narrowing the exception over time. Eventually, the court developed the “imminent danger” test, holding that the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That’s essentially where we stand now (with exception, because there are always exceptions). So, if the speech is hateful, it is protected by the First Amendment. If it poses an imminent danger of criminal action, it is not protected.

This distinction is actually a good thing for Harry. Although he finds the free speech protections in our nation to be “bonkers,” it is those same protections that would keep someone out of jail for, say, dressing up like a Nazi. While it is an act that I myself find reprehensible, the fact that this act is protected by the First Amendment is important. For instance, that same protection extends to religious garments — such as yarmulkes and hijabs — that some people in this country might decide offends them. Finding offense in such garments may sound ridiculous to you and me, but it’s a slippery slope for the courts.

Just a few years ago, Justice Kennedy addressed the importance of protecting speech, including hateful speech, writing:

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A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

That brings me to my main point about our free speech rights. It allows people in this country to express their ideas, even if others disagree with those ideas. No matter how unconventional, unpopular, or disliked those ideas might be, the government is prevented from infringing on our right to express them. Without such rights, only the most popular and mainstream ideas would be expressed, while dissent would be prosecuted. There are many countries where these rights do not exist, where people cannot participate in peaceful protests, wear certain symbolic clothing, or speak out against their government. Here, however, we are free to engage in discussion and debate without fear of penalty or censorship by our leaders. In my view, that is far from bonkers. It is a blessing that many people around the world do not have. It is the ultimate freedom.

I hope this helps shed some light on our free speech rights. I look forward to delving further into this topic with my next article, “Defamation Law And The People Who Love It.” (The title is a work in progress.)

Diana Warshow is Senior Counsel at Nesenoff & Miltenberg, LLP in New York, NY. Practicing law since 2008, Diana’s work focuses on defamation and Title IX law. She represents clients in libel and slander claims against media companies, written publications, tech companies, blogs, and social media sites. She also represents students in disciplinary proceedings at high schools, colleges, and post-graduate institutions around the country. You can reach her by email at DianaWarshowEsq@gmail.com and connect with her on LinkedIn.

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