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An Activist’s Guide to the First Amendment

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January 27, 2015

I’m always a little surprised when my college classes —most of which are for my major, journalism—relate to activist work. So last week when we discussed the First Amendment in my Law of Mass Communication class, it came as a pleasant shock to see how much of the lesson could be applied to social justice.

Activism sometimes requires toeing the line of the law—protesting, picketing, writing petitions—so it’s important to be aware of what that law actually says. Stick around for First Amendment 101—don’t worry, there won’t be a quiz after.

The First Amendment is a constitutional and fundamental right, and the government needs a compelling interest to restrict that right. It protects some basic freedoms—freedom of religion, of speech, of the press, of assembly and the freedom to petition. This is good news for activists, as social justice work often involves all of those things.

Another good thing: the First Amendment means that the government cannot punish its critics. This works as a check on governmental power, as well as protecting citizens when they fight against lawmakers or policy. For example, a government official could not arrest me for criticizing his or her policy on abortion, just because he or she didn’t like what I was saying.

It’s also worth noting that you only have a First Amendment right if the government is involved. This means that there are some cases where you can still be punished for speaking your mind. For example, if you worked for a very conservative company, they, as a private business, could punish you for saying something that goes against company values and makes the company look bad. (You might remember the Hobby Lobby decision, in which the company was able go get away with not providing certain contraceptives to employees—corporate spending is considered First Amendment speech).

Some form of speech is not even protected by the government. Threats and fighting words—words that are so offensive as to cause violence and a breach in the peace—are not protected by the First Amendment. Hate speech, which is written or spoken words that insult and degrade groups identified by race, gender, ethnic group, religion or sexual orientation, is protected, however.

This is why the Westboro Church can picket soldier’s funerals, for example. Hate speech is protected because of a concept called the Marketplace of Ideas. This concept was created in the 1600s by John Milton, who criticized the government and said that people needed a place to discuss things that were illegal (he wanted to talk about the idea of divorce without punishment from the king).

The basic theory is that good ideas and the truth will prevail in the free market. All sides, even the bad ones, will essentially battle and people will choose for themselves what is right and true. Under this theory, it’s okay that the Westboro Church uses gay slurs, because the mass of people will be able to realize that this is not a good idea. The name comes from the concept that people were once going to a physical marketplace to have their ideas discussed.

According to my professor, the Marketplace of Ideas has already been criticized by feminists for this very reason. They say the marketplace devalues women and people of color because they don’t have the resources to get their ideas discussed. Once upon a time, this might have meant that oppressed groups couldn’t gain access to the physical marketplace. Now it might mean that these groups don’t have access, whether because they cannot afford it or because they are excluded from it, to other avenues where ideas are being discussed and rules for society are being created—think along the lines of college classes, Internet forums and government meetings.

So, while the First Amendment protects everyone, people with more privilege still might be getting more benefits out of it. This is important to remember as we fight for progress. As minorities and oppressed groups, we might not necessarily be punished by the government for speaking our mind, but we don’t have as many resources as privileged groups may to really get the message out there.

Consider this information the next time you plan a demonstration of free speech, whether that be a petition to Congress to fight H.R. 7 or a protest against race-based killing. Good luck, be safe and have fun exercising your First Amendment rights!

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