The First Amendment to the United States Constitution 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 peaceably to assemble, and to petition the Government for a redress of grievances.
Note the first word, “Congress.” It makes no mention of any other institution, except for “the Government” in the last clause (capitalized as a holdover from the Germanic roots of English). That’s a hint.
The Amendment is famous, in the United States, at least, and most U.S. citizens take the rights it guarantees very seriously. They are why we can freely point out how stupid President Trump is, and we don’t have to worry about getting a prison sentence for representing controversial people, like women who appear in public without a veil, as has happened to Nasrin Sotoudeh in Iran.
But a lot of people misunderstand what the First Amendment does and does not do.
An excellent example is poor Laura Ingraham, who is a personality on Faux “News” and is not very bright. About a year ago, she suffered widespread, well deserved condemnation after she heaped scorn on David Hogg, then a high school student who had suddenly become famous as a survivor of the Parkland School shooting. He was a high school student who had survived a mass shooting, so any civilized person would treat him gently. He made the rookie PR mistake of complaining publicly about colleges that chose not to admit him.
Being a good “conservative,” and therefore incapable of thinking of anything but a cheap opportunity to score political points, Ingraham sniped at him publicly for this plaint. He called for a boycott of companies that advertise on her show, which prompted several to stop doing so.
Ingraham riposted by trying to wrap herself in the First Amendment, or her corrupt idea of the First Amendment. She introduced a new “segment” that she called “Defending the First,” in which she promised to “expose the enemies of the First Amendment, of free expression, and every thought….”
This is rank nonsense. Remember our actual First Amendment, above? It explicitly prohibits action by “Congress,” which the Supreme Court has reasonably interpreted to mean any arm of government, since Congress makes laws and government exists only to make and enforce laws.
Boycotting is quintessential First Amendment activity. You may choose as an individual to boycott a company, but if you’re the only one, you’re not likely to have much impact. Boycotts work when the advocates of them make their boycott calls public and exhort their supporters to join in the boycott.
Even a minimal amount of research, as in, one Google search, intelligently performed, would have turned up the major Supreme Court case, NAACP v. Claiborne Hardware Co., 486 U.S. 886 (1982), which resulted from events beginning in 1966. Black residents of Claiborne County, Mississippi, organized a boycott of local businesses when the local government refused to meet demands they presented. Merchants in the area filed a civil suit against the NAACP and multiple individual, claiming tortious interference among other causes of action. The trial court awarded damages on various legal theories. The state supreme court reversed on some issues but sustained on others. The U.S. Supreme Court squarely held, in a unanimous, 8–0 opinion from which Justice Marshall recused himself (presumably because of his deep ties to the NAACP).
Section II.A of the opinion is a veritable primer on African American civil rights activity in the form of various boycotts. In those days before the internet, leaders and participants decided on and organized the boycott through meetings at a church, as was common for African American civil rights activists. They actively encouraged the boycott by asking their neighbors to join it. They read the names of violators aloud at the church. They picketed businesses.
The Supreme Court broke the elements of the boycott down and repeatedly explained why each element enjoyed the protection of the First Amendment. Meeting to organize and publicized a boycott were clearly protected under the rights to freedom of speech and peaceable assembly. The Court has long held that citizens have a right to engage in peaceful picketing. Particularly telling is this quotation from a Fifth Circuit Court of Appeals decision in a companion case:
At the heart of the Chancery Court’s opinion lies the belief that the mere organization of the boycott and every activity undertaken in support thereof could be subject to judicial prohibition under state law. This view accords insufficient weight to the First Amendment’s protection of political speech and association.
The more charitable surmise is that Ingraham was just too stupid to do any research on the topic before she decided to bloviate. It would not be unreasonable, but it would be uncharitable, to suspect that Ingraham, as a good “conservative,” opposes the goals and achievements of the African American civil rights movement and therefore the holding of this decision, which would be even more stupid, since the principles from the Constitution it articulates would apply to anyone.
So, stupid or racist stupid? We can let Ingraham herself choose.
The First Amendment only constrains government. Ingraham suffered no official censorship for her idiotic attack on Hogg. Had anyone attempted any such, she could easily have won in federal court, with the help of the notorious liberals at the American Civil Liberties Union (ACLU), just as they did when Ingraham’s fellow “conservatives” in the White House tried to revoke the press pass of CNN reporter Jim Acosta, a clear attempt at official censorship that a federal judge quickly and easily ordered them to reverse.
Ingraham was free to attack Hogg, and Hogg was free to return fire. Neither has any public authority at all. Neither exercise in free speech at all violated the First Amendment. This is patently obvious from a plain reading of the Amendment itself, but finds ample support in multiple decisions of the Supreme Court. Ingraham only reveals her stupidity when she claims otherwise.
The First Amendment in no way constrains the general public from calling an idiot an idiot, or a racist a racist. Such is exactly the sort of “robust” public debate that is the purpose of First Amendment protection for free speech, see id. at 913, quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964). The whole point is to leave citizens as free as possible to discuss issues with each other, as long as neither side resorts to violence or any other action that is liable to prosecution for reasons entirely separate from the fact or content of the speech in question.
This is, of course, the exact same principle that explains why it was a mistake for defenders of National Football League (NFL) quarterback Colin Kaepernick to claim a violation of the First Amendment when the NFL and its teams punished him for kneeling during the national anthem to protest police violence against African Americans. Kaepernick did win a confidential settlement from the NFL, but that was the result of an internal, NFL grievance process, not a federal law suit on First Amendment grounds. Kaepernick filed no such suit, likely because his lawyers told him he had no case on such grounds. This is the man, after all, who runs “Know your Rights” camps for youth. He has the money to hire good lawyers. He’s a smart guy. He knows whereof he speaks on this issue.
So, the key points we have learned here are that the First Amendment applies only to government action in suppression of free speech, not the free speech of other citizens in response to your free speech, which may have the effect of imposing costs on you, if enough people disagree with what you said, and Colin Kaepernick is much smarter than Laura Ingraham.