Clarifying Some Common First Amendment Terminology

I’ve spent years arguing about the First Amendment online, and often failing to inform or persuade, and it’s partially my fault.

Oh, I try. Mostly. But I’ve come to realize that the language that we lawyers use when we discuss the First Amendment can be perfectly obvious to us and vague or obscure to everyone else.

Today let’s take two examples:

• “First Amendment exceptions,” and

• “The First Amendment applies here”/“the First Amendment governs this question”/“this is a First Amendment issue.”

Both of these, when misunderstood, can be a barrier to understanding First Amendment issues. Their legal meaning is so ingrained in some of our minds that it completely escapes us how other people reasonably interpret them.

First Amendment Exceptions — To What?

Last week, when I did a post about First Amendment exceptions, I was grumpy because people were claiming that I was missing some from my list, like “time, place, and manner” exceptions and non-speech conduct. I am NOT missing them, I thought, those are DIFFERENT. Then, after some thought and perhaps a drink, it occurred to me: this was my fault because I didn’t explain it clearly. So, let’s try again.

When First Amendment experts say “First Amendment exception,” they’re generally referring to the limited, historical set of exceptions to the First Amendment that allow the government to limit speech based on its content. Put another way, the “exception” is to the rule “the government can’t restrict speech because it doesn’t like the content of that speech.” The exceptions aren’t exceptions to the proposition “the government can’t do anything to restrict anything that might be understood as speech,” because that’s not the rule.

This becomes clearer when you look at the Supreme Court cases that list the established “First Amendment exceptions.” In that last post I quoted United States v. Stevens and its list of exceptions. Here’s how I could have highlighted it to make the point clearer:

So. That familiar list of First Amendment exceptions — defamation, incitement, true threats, obscenity, and so forth — is a list of the times when the First Amendment permits the government to restrict or punish speech based on its content.

When you get that, it becomes easier to categorize other First Amendment concepts. “Time, place, and manner restrictions” — like, say, limits on what time of day a parade can take place, or the noise limits outside a hospital — are not based on the content of speech. They’re only permissible as “time, place, and manner” restrictions if they are content-neutral — that is, if they apply regardless of the message. That makes them different than the First Amendment exceptions, which require consideration of the content of the speech.

Similarly, the law surrounding “expressive conduct” is not a First Amendment “exception.” I’m not even allowed to punch you in the nose even if I mean to convey a message by doing so, but that prohibition is not based on the message I intend to convey, but on the effect of the action of punching you. So it’s not a First Amendment “exception,” it’s something the First Amendment didn’t protect in the first place.

I’ll try to be clearer about that.

What Does It Mean That “The First Amendment Applies/Governs” or “This Is A First Amendment Issue”?

Here’s another common misunderstanding — we don’t all have the same idea of what it means that the First Amendment “applies to” or “governs” a situation or that the situation raises a “First Amendment issue.”

Laypeople often understand that to mean “the First Amendment absolutely protects this speech and so you can’t jail or sue someone over it.” That’s why you’ll get confusion with people saying things like “well, if defamation cases between private individuals are governed by the First Amendment, how can anyone ever win a defamation case?”

But that’s not what it means, of course. When we say “this is a First Amendment issue” or “the First Amendment applies to this dispute,” we’re saying “there’s a set of law based on the First Amendment that you have to apply to this dispute to resolve it.” That doesn’t mean “the person speaking automatically wins” any more than “you have a right to trial by jury if you’re charged with a crime” means that you have a right to be found not guilty. It means that we have rules and standards that apply. So, for instance, if one private person sues another private person for defamation, the First Amendment imposes a set of rules: the speech has to be false to be defamatory, the plaintiff has to prove a higher standard if he or she is a public figure like a celebrity, you can’t just sue over insults, and so forth. Similarly, “the First Amendment applies to the question of whether that politician’s speech is incitement” doesn’t mean “the speech is absolutely protected, end of discussion,” it means “we have to apply the relevant First Amendment test to determine if the speech falls into the incitement exception to the First Amendment.“

This seems extremely obvious to people who jabber about the First Amendment all the time, but I’ve come to understand it’s not obvious to normal people.

The more Americans understand our rights the better off we are, so I’ll make an effort to be clearer.