EXPRESS YOURSELF! by Nathan D. Wilson, Esq.

Updated: Dec 15, 2021


Foreword: I intend this blog, and future blogs, to be a series on one’s Constitutional rights. This is meant to teach people about their rights and provide useful information on those rights. I may also provide commentary on certain aspects of one’s rights in light of current events. Please note, this is not, nor intended to be, legal advice. You should consult an attorney if you need legal advice on an individual situation. Nothing in this blog creates an attorney-client relationship.

The First Amendment: Freedom of Expression

In full, the text of the First Amendment reads: “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 peaceable to assemble, and to petition the Government for a redress of grievances.”

The Founding Fathers created the United States of America in order to escape the tyranny of European monarchies. The freedom to voice one’s opinion, practice their own religion, and to complain against their government were the leading foundational principles. The First Amendment formalized those rights. The First Amendment, however, is not absolute.

Before elaborating, some important details must be addressed. As stated in the First Amendment, the term “speech” includes any tangible or intangible medium of expression (e.g., spoken words, writings, photographs, political donations, wearing certain clothing, etc.). Thus, the scholarly term used when referencing First Amendment protections is “expression.” This term broadly encompasses activities protected by the First Amendment.

Throughout our Nation’s history, Courts have determined that the First Amendment’s privileges do not protect some categories of expressions. Famously, Supreme Court Justice Oliver Wendell Holmes, Jr. wrote, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” Following this, the Supreme Court created categories of expression dubbed “unprotected” and “less protected.” Examples include incitement to violence, fighting words, obscenity, and commercial advertising. These categorical exemptions exist to protect citizens. Further, the government can place reasonable time, place, and manner restrictions on one’s freedom of expression. For example, your local city council cannot stop you from displaying the American Flag on your property. The council could, however, limit the size of the flag to be reasonable and unobstructive.

Another important note, and in the context of private businesses, the First Amendment only protects against government conduct limiting one’s freedom of expression. Similarly, most Constitutional rights only protect an individual against government conduct. Therefore, a private individual or a private company cannot violate your First Amendment rights. Recently, several politicians complained that Twitter and Facebook violated the First Amendment by banning some people from using their respective platforms. Simply put, these politicians do not understand basic First Amendment jurisprudence.

Social media platforms are private entities, businesses controlled by people like yourself. Private companies cannot violate the First Amendment. For example, if Wave Media wanted to delete this blog for whatever reason, that is its right as a private business. The same holds true if the local newspaper does not publish a letter to the editor. Private businesses have the privilege and freedom to choose what they say or publish. If Wave Media pulled this blog, I would not have any legal recourse based on the First Amendment. Likewise, I could not sue Facebook, Twitter, Instagram, or Reddit for violating my First Amendment rights if they banned me from using their respective websites.

Alternatively, apart from the enumerated unprotected categories and pursuant to the reasonable restrictions in place, the government cannot impinge on an individual’s right to express themselves freely. By way of example, the government cannot prevent an individual from expressing themself at a school board meeting, or through a political yard sign, or during a protest. The First Amendment protects the right to do so.

In light of this information, I ask the readers one simple favor. The next time you hear someone complain about their First Amendment rights being violated by a private business, please make sure they understand the basics of the First Amendment. As citizens of this Country, we are privileged and blessed with the ability to freely express ourselves. Across the globe, tyrannical governments imprison, and sometimes execute, their citizens for expressing their opinions. Our Constitution affords immense protections from such government behavior. The absolute least we can do is ensure our fellow citizens interpret the First Amendment correctly.

- Nathan D. Wilson, Esq.