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The First Amendment of the United States Constitution, adopted in 1791 along with other nine other bills comprising the Bill of Rights three years after the ratification of the Constitution, created a lot of clauses dealing with multiple purposes.

There have been a number of legal challenges regarding the First Amendment recently, from Sarah Palin's lawsuit against the New York Times to suits accusing Project Veritas, Fox News, the Gateway Pundit, One America News and others of "intentionally promoting and profiting from false claims of voter fraud during the 2020 election," the New York Times reported.

1. What is the First Amendment?

The First Amendment guarantees freedoms concerning religion, expression, assembly and the right to petition, according to Cornell Law School. It forbids Congress from both promoting one religion over others and also restricting an individual's religious practices. The amendment further guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. Finally, the amendment guarantees the right of citizens to assemble peacefully and to petition their government.

"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 amendment states.

2. Limitations of the First Amendment

The First Amendment has some limitations. Notably, the amendment doesn't prevent a private employer from setting its own rules regarding freedom of expression, but does protect citizens against government limits on expression, according to Middle Tennessee State University.

According to USCourts.gov, the freedom of speech does not include the right:

The First Amendment again only protects against the government, not private employers or consequences from other citizens. Limits to the freedoms in the First Amendment exist as peoples individual rights must be balanced against the rights of society, according to the Voice of America.

For example, a person cannot force the tenets of his or her religion on others while trying to practice that religion. Similarly, harmful speech, such as yelling fire in a crowded room, is not protected speech, nor is publishing a lie that causes harm to someone. Also, different types of speech have different amounts of freedom. Political speech is considered different than commercial speech, which includes advertisements.

According to the American Civil Liberties Union, freedom of speech does not prevent punishing conduct that intimidates, harasses or threatens another person, even if words are used. Threatening phone calls are not constitutionally protected, for example.

3. What the First Amendment does

Middle Tennessee State University states that the First Amendment prevents against the government requiring you to say something you don't want to, or keeping you from hearing or reading the words of others, as you have the right to receive information, even if you never speak or write yourself.

USCourts,gov also states that the freedom of speech includes the right:

The First Amendment also makes it so that the government can not, through "prior restraint," block publication of any material unless it could prove that it would "surely" result in "direct, immediate and irreparable" harm to the nation, the Supreme Court found in U.S. v. New York Times. The public has a "right to know," the court found, which is essential to fully participate in democratic decision-making.

The government's claims of "national security" must always be scrutinized to make sure they are valid, according to the ACLU.

4. What about censorship?

Censorship is the suppression or prohibition of words, images or ideas that are considered offensive, obscene, politically unacceptable or a threat to security.According to the First Amendment Encyclopedia, "censors seek to limit freedom of thought and expression by restricting spoken words, printed matter, symbolic messages, freedom of association, books, art, music, movies, television programs and internet sites."

Censorship by the government, even though it appears to be becoming more common in states like Florida and Texas, is unconstitutional, according to the Carnegie Library. The First Amendment was extended to the states in the 1940s, according to Encyclopedia Britannica. When the government, either at the federal, state or local level, engages in censorship, it goes against the First Amendment rights. The Supreme Court is often called upon to ensure that First Amendment rights are being protected and could be called upon again in the future.

However, private individuals and groups may still engage in censorship. As long as government entities are not involved, this type of censorship presents no First Amendment implications. That includes censoring popular music, movies, art and television to exclude words or images that may be considered "vulgar" or "obscene." Facebook, Twitter and other social media can regulate or restrict speech hosted on their platforms because they are private entities.

The Supreme Court has previously reaffirmed the right to receive information is a fundamental right protected under the U.S. Constitution when it stated in Board of Education v. Pico in 1982 that "the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of their own rights of speech, press and political freedom," according to the American Library Association.

5. The freedom to speech does not equate a freedom from consequences

While everyone is entitled to voicing their own opinions, ideas and views without interference from the government, according to North Texas Daily, what happens after statements are voiced is up to others. When people voice opinions of discrimination, be it racism, homophobia, transphobia, etc., others can voice differing opinions and call out individuals for their negative comments. Individuals can also face backlash for their comments made on social media platforms that are derogatory, racist or otherwise discriminatory.

Individuals can be held accountable for their words and actions by entities like businesses or organizations, including their employer. Hateful speech and political views are not the same thing, per North Texas Daily, as hateful speech causes emotional and mental harm to someone while political beliefs do not. Calling someone out for saying hateful statements is also within a person's freedom of speech.

People who call out others for harmful, hateful statements are not trying to promote censorship, per North Texas Daily. Individuals are entitled not to tolerate hateful rhetoric and are able to say things against it. The First Amendment was created to encourage the flow of ideas and communication between people without government interference.

An individual who does not like being called out for their negative comments can stop voicing those comments on public platforms. Once a statement is on a public platform, others have the right to comment back and condemn those statements.

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What does the First Amendment actually mean? Here's an explainer - The Edwardsville Intelligencer

As Fox News mounts its defense in the Dominion case and in a lawsuit by another voting systems company, Smartmatic, the networks lawyers have argued that core to the First Amendment is the ability to report on all newsworthy statements even false ones without having to assume responsibility for them.

The public had a right to know, and Fox had a right to cover, its lawyers wrote. As for inviting guests who made fallacious claims and spun wild stories, the network quoting the Sullivan decision argued that giving them a forum to make even groundless claims is part and parcel of the uninhibited, robust and wide-open debate on matters of public concern.

Last week, a New York State judge ruled that the Smartmatic case against Fox could go forward, writing that at this point, plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice.

The broadness of the First Amendment has produced strange bedfellows in free speech cases. Typically, across the political spectrum there is a recognition that the cost of allowing unrestrained discourse in a free society includes getting things wrong sometimes. When a public interest group in Washington State sued Fox in 2020, alleging it willfully and maliciously engaged in a campaign of deception and omission about the coronavirus, many First Amendment scholars were critical on the grounds that being irresponsible is not the same as acting with actual malice. That lawsuit was dismissed.

But many arent on Foxs side this time. If the network prevails, some said, the argument that the actual malice standard is too onerous and needs to be reconsidered could be bolstered.

If Fox wins on these grounds, then really they will have moved the needle too far, said George Freeman, executive director of the Media Law Resource Center and a former lawyer for The New York Times. News organizations, he added, have a responsibility when they publish something that they suspect could be false to do so neutrally and not appear to be endorsing it.

Fox is arguing that its anchors did query and rebut the most outrageous allegations.

Paul Clement, a lawyer defending Fox in the Smartmatic case, said one of the issues was whether requiring news outlets to treat their subjects in a skeptical way, even if their journalists doubt that someone is being truthful, was consistent with the First Amendment.

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First Amendment Scholars Want to See the Media Lose These Cases - The New York Times

From Starbuck v. Williamsburg James City County School Bd., decided yesterday by the Fourth Circuit (Judge Diana Gribbon Motz, joined by Chief Judge Roger Gregory and Judge James Wynn):

{Because the district court dismissed this case on a Rule 12(b)(6) motion, we relate the facts as set forth in Starbuck's amended complaint.} On February 15, 2018, the day after the horrific mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, Jonathan Starbuck engaged in a conversation with his classmates about the shooting. Starbuck alleges that "[n]o student within the conversation made any threat" and that the conversation was factual. Starbuck "made remarks questioning the intent of the shooter, stating that the shooter would be capable of more harm had he wanted to, noting [the shooter's] possession of explosives and considering the time the shooter was left alone within the building unchallenged by local law enforcement." A teacher overheard the conversation and reported it to the local police and school administration.

As a result, the school removed Starbuck from classes for the remainder of the school day. During that time, which Starbuck refers to as an "in-school suspension," he alleges that various school officials "interrogat[ed]" him. The "[s]chool [p]olice officer investigated and cleared the [teacher's] report as unfounded" because the officer concluded "there was no threat made and no criminal offense occurred."

That evening, an assistant principal informed Starbuck's parent that Starbuck faced a two-day out-of-school suspension. Starbuck maintains that concerns for his "own safety" constituted the reason given for the in-school suspension, and unspecified "[t]hreats" constituted the reason given for the out-of-school suspension. The following week, Starbuck, along with his brother and mother, attended a meeting with various school officials including the assistant principal and a representative from the School Board.

Following this meeting and after receiving a formal notice of the out-of-school suspension, Starbuck submitted a written notice of appeal to the School Board. Three months later, in May 2018, after considering Starbuck's arguments, the School Board "found the suspension was proper" stating the reason for the suspension as "[c]lassroom [d]isturbance."

This, the Fourth Circuit said, would violate the First Amendment (again, if the facts are as alleged):

In interpreting the First Amendment, the Supreme Court has long held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Student speech falls within the protection of the First Amendment unless it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," or (at least as applied to on-campus speech) is "indecent," "lewd," or "vulgar," "promotes illegal drug use," or is communicated through a school-sponsored activity. Starbuck's speech does not fall within any of these categories.

According to his complaint, Starbuck only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting. Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas. To do so would be incompatible with the very purpose of public education. Cf. W. Va. State Bd. of Educ. v. Barnette (1943) ("That [boards of education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source."); Tinker v. Des Moines Indep. School Dist. (1969) (noting that "personal intercommunication among the students" is "an important part of the educational process").

The School Board relies on cases in which courts have "agreed that language reasonably perceived as threatening school violence is not constitutionally protected." We do not disagree. But Starbuck's remarks, as described in his complaint (which we must view in the light most favorable to him), were non-threatening statements about the tragedy that any student could have uttered in response to the news. For "school officials to justify prohibition of a particular expression of opinion, [they] must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

The First Amendment does not permit schools to prohibit students from engaging in the factual, nonthreatening speech alleged here.

Congratulations to University of Virginia School of Law Appellate Litigation Clinic students Jacob Larson and Benjamin Lerman, who argued the case for plaintiff and were on the briefs; to Gregory Eng, who was also on the briefs; and to Prof. Scott Ballenger, who was counsel of record.

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"The First Amendment Does Not Permit Schools to Prohibit Students from Engaging in the Factual, Nonthreatening - Reason

Last week, after Florida legislators had already passed the Dont Say Gay bill allowing parents to sue teachers who acknowledge that gay people exist, Disney CEO Bob Chapek finally got around to condemning it.

Thank you to all who have reached out to me sharing your pain, frustration and sadness over the companys response to the Florida Dont Say Gay bill, Chapek wrote in a memo to employees announcing that the company would be pausing donations to the bills sponsors.

Speaking to you, reading your messages, and meeting with you have helped me better understand how painful our silence was. It is clear that this is not just an issue about a bill in Florida, but instead yet another challenge to basic human rights, he wrote, when it was too late to do anything about it. You needed me to be a stronger ally in the fight for equal rights and I let you down. I am sorry.

Well, Florida Republicans arent going to take this vicious assault lying down. They know their rights.

Haha, just kidding. They are fundamentally confused about their rights, much less the right of any person to criticize the government.

Heres Lieutenant Governor Jeanette Nuez explaining the First Amendment to Foxs Laura Ingraham.

These feckless CEOs of these woke corporations, theyre too busy bowing down to the altar of the [Chinese Communist Party], Nuez vamped, seemingly oblivious that she was criticizing the company for failing to stand up to government censors in China, while simultaneously demanding that the company censor itself at home at the behest of the American government.

Also, not for nothing, but the CCP isnt exactly known for its gay-friendliness.

They will criticize our legislation, they will try to bully us. Like the NCAA did, like Disneys doing. How dare they! They have no right to criticize legislation by duly elected legislators that are passing common sense legislation, she continued. To criticize and to threaten! Governor DeSantis and I wont stand for it.

To be fair, Lt. Gov. Nuez is not a lawyer, so perhaps she doesnt understand the finer points of First Amendment law. But surely Laura Ingraham, who clerked for Justice Clarence Thomas, knows damn well that thats not how free speech goes. And Governor DeSantis (HLS 2005) knows the government cant punish Disney for speaking out against the law. Or at least, he did know that at one time.

Recently courts have had to smack down his ridiculous anti-protest bill, his social media censorship law, and the University of Floridas efforts to bar employees from testifying in litigation against the state. So perhaps the governor has engaged in some strategic forgetting.

Just like the lieutenant governor, who seems to have forgotten that gay parentsexist.

Were proud, Nuez went on. In the free state of Florida, we put parents and their rights first.

Well, not their First Amendment rights. Try to exercise those, and theyll accuse you of being a pedophile. But, you know, if youre want to sue a teacher for acknowledging that a student has two mommies, the state of Florida has got your back.

Liz Dyelives in Baltimore where she writes about law and politics.

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Florida's Lt Gov Is Very Confused About The First Amendment. Just Like Her Boss. - Above the Law

The ruling is a setback for University of North Texas administrators who had asked the court to dismiss the lawsuit brought by former adjunct professor Nathaniel Hiers. (University of College / Shutterstock.com)

by Alex Morey

A First Amendment lawsuit filed by a former University of North Texas adjunct professor who was non-renewed in 2019 for criticizing microaggressions can continue, a federal district court judge held on Friday. Along with denying the universitys motion to dismiss Nathaniel Hiers First Amendment retaliation claims, the court held that attempting to force Hiers to apologize likely comprised unconstitutionally compelled speech. The court also denied qualified immunity to the UNT administrators involved in the alleged retaliation, concluding that any reasonable university official would have known that it was unconstitutional to discontinue [Hierss] employment because of his speech.

FIRE first covered the suit, sponsored by Alliance Defending Freedom, when it was filed back in April 2020. As we summarized the facts at the time:

The trouble started in November 2019, when someone anonymously left a stack of flyers in the [UNT] faculty lounge explaining the concept of microaggressions, which the flyers described as verbal and nonverbal behaviors that communicate negative, hostile, and derogatory messages to people rooted in their marginalized group membership. According to his complaint, Hiers believes that the concept of microaggressions hurts diversity and tolerance because it teaches people to see the worst in other people, promotes a culture of victimhood, and suppresses alternative viewpoints instead of encouraging growth and dialogue. Indeed, microaggression theory has been the subject of much public debate, including as the complaint notes in FIRE president Greg Lukianoff and NYU social psychologist Jon Haidts recent book, The Coddling of the American Mind.

So in response to the flyers he disagreed with, Hiers wrote a note on the chalkboard in the faculty lounge that read please dont leave garbage lying around, with an arrow pointing to [one of the] flyers.

According to [Hierss] complaint, professors regularly leave comments and jokes on the faculty lounge chalkboard, often anonymously. But this time, Ralf Schmidt, chair of the math department, sent an email to the entire department with a photo of the comment, stating, Would the person who did this please stop being a coward and see me in the chairs office immediately. Thank you.

Fridays decision by district court Judge Sean Jordan dismisses a number of Hiers claims, such as for breach of contract. However, he finds the professor plausibly alleged that the university officials violated his right to freedom of speech, as he spoke outside of his job duties as a private citizen on matters of public concern (citations omitted here, and in quotes below):

Hierss critique of the flyer on microaggressions transcended personal interest and touched on a topic that impacts citizens social and political lives. His speech did not address a personal complaint or grievance about his employment. The point of his speech was to convey a message about the concept of microaggressions, a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education.

The court notably cited FIRE President and CEO Greg Lukianoff, Executive Director Robert Shibley, and First Amendment scholar and FIRE Legal Fellow David L. Hudson, Jr. (see page 22) for the proposition that debate over microaggressions is a matter of public concern.

Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure.

The court also pushed back on UNTs assertion that Hierss language was uncivil or otherwise removed from the First Amendments protection, instead holding that Hiers expressed the kind of pure speech to which the First Amendment provides strong protection.

In sum, Hiers met the burden, at this stage of the litigation, for his First Amendment retaliation claims to continue:

Preserving the freedom to think as you will and to speak as you think; is both an inherent good, and an abiding goal of our democracy. The university officials allegedly flouted that core principle of the First Amendment when they discontinued Hierss employment because of his speech. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech.

The court was also persuaded that UNT may have violated Hierss right to be free from compelled speech when administrators allegedly asked him to apologize for his speech:

Taking these allegations as true and viewing them in the light most favorable to Hiers, it is plausible that the university officials unconstitutionally punished Hiers for refusing to affirm a view the concept of microaggressions with which he disagrees. Hiers has plausibly alleged that the university officials discontinued his employment that is, punished him because he did not express honest regret about his views and speech on microaggressions.

Nor was the judge moved by UNTs argument that it did not compel speech by Hiers because it did not require him to publicly apologize:

To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period.

Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure. FIRE will continue watching this case closely as it progresses.

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Court: University of North Texas professor's First Amendment retaliation lawsuit over firing for calling 'microaggression' flyers 'garbage' can...