The First Amendment

This morning, I randomly came across a series of tweets from Richard Roeper (best known for his work as a film critic). Apparently, Roeper had made some comments (not necessarily via Twitter) defending the legality of an employee getting fired for making racist comments on her Facebook page. (The fact that she got fired is only relevant is background information, which is why I'm not getting into specifics.) Roeper must've taken some heat from people, and they must've said something like "the First Amendment protects our freedom of speech" or something like that. That, in turn, led to this tweet.

Amazing how many people don't understand the First Amendment. Have they even read it?

— Richard Roeper (@richardroeper) April 5, 2012

Roeper implies that a reading of the First Amendment is sufficient to understand one's constitutional right to free speech. Okay, that sounds reasonable enough. Let's all read it together:

"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." (source)


Okay, that wasn't too painful. So, according to our close reading of the text, Congress can't make a law that abridges the freedom of speech. That must be the limit and extent of our constitutional right to free speech, right, Mr. Roeper?

Of course, it's not that simple. For example, did you know that, in addition to Congress, States also can't make laws that abridge our freedom of speech? How could you, if all you did was read the First Amendment? (The First Amendment, like most of the Bill of Rights, applies against the States just like it applies against Congress. I touched on this concept, known as "incorporation", in an earlier post.)

Also, guess what: Congress can make laws that limit our right to free speech! You wanna drive a sound truck around at 2 AM? The government can stop you. Want to falsely advertise your product? The government can stop you. Want to wear a jacket that says, "Fuck the Draft" into a courtroom? Turns out the government can't stop you on that one. But of course, you already knew all these things, because you read the First Amendment and were able to infer from that one sentence the contours of your right to freedom of speech. Right, Mr. Roeper?

I'm not taking issue with Roeper's arguments concerning the legality of firing the employee. I don't know one way or the other whether he's correct, because I haven't looked into the dispute or even read the facts anywhere. I do take issue with his suggestion that a person need only read the Constitution to understand the extent of his rights. It's more than simplistic; it's plain wrong.