That Tricky 1st Amendment

Under the Obama administration there have been two highly controversial legal rulings on the First Amendment. Before reviewing them, it is worth remembering what the First was for. It was to prevent pre-publication restrictions on freedom of expression, most particularly in politics. It was to nurture a polity in which people were free, singly and in combination, to criticize their government and politicians. After the invention of the printing press English law – which, of course, had applied in America too – imposed limits on the press. Printing presses were taxed and licensed to keep them in the hands of a trusted few. As presses had become cheaper, such government controls had begun to break down, but folk memories of this oppression were strong.

The most obvious parallel here is government licensing of the broadcasting spectrum. By declaring itself the owner of the spectrum, and selling carefully controlled licenses, the US federal government behaved exactly as the English had when printing technology was new and expensive. No court has ever ruled that the US had exceeded its powers doing this, and controls are breaking down because broadcasting is becoming cheaper, not through the assertion of constitutional liberties.

The Supreme Court some months ago struck down federal controls on how people – acting in combination through companies and unions – may express their opinions on election candidates. As Justice Kennedy said, writing for the Court: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” This is obviously sensible, and plainly in line with the meaning of the First, which protects the freedom to combine for political purposes as well as free speech. The government can neither fine nor imprison anyone for expressing their political opinions.

More recently, a federal court in California has struck down the Clinton-era policy of “don’t ask, don’t tell” regarding the service of gay people in the military. Under the policy, the military does not seek to discover whether service personnel are gay, but will dismiss people for saying that they are. (The most fatuous aspect of the policy is that anyone can now resign from the military by saying they are gay. Actual gayness is not required).

Silly as the policy may be, regarding it as a breach of the First Amendment is a serious stretch. Everyone has a right to say they are gay, but no-one has a right to serve in the military, or indeed in any other job. The First does not protect Americans from the consequences of their speech. You have an unenumerated right to jump. But if it is off a tall building, there are consequences. Among the many things military personnel are not allowed to say are “that’s a stupid order, sir” and “let’s all get together and refuse to do what the general says”. Common Sense sees no reason why saying “I’m gay” should be a barrier to serving in the military, but it is plainly ridiculous to argue that it is a breach of the First Amendment. The military is not, of course, the only organization which will sanction employees for refusing orders or insulting line managers. Those other organizations are also not breaching the First Amendment, which is a restriction on Congress’s power to make laws, not a guarantee that you can hold any job you want.


Article provided by Quentin Langley
Lecturer in PR and Political Communications,
School of Journalism, Cardiff University

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