COURT ORDER
The First Amendment prohibits government from interfering with expression
By Jannine Mohr | Jan. 3, 2024
U.S. Constitution – Amendment I
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.
THE FIRST AMENDMENT to the U.S. Constitution contains only 45 words. Although brief, it is mighty. The rights and freedoms that arise from these words – religious freedom, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government – are pillars of our democracy.
Although the First Amendment is frequently referenced, it is surprising how often its protections and freedoms are misunderstood or misrepresented.
Perhaps the biggest misconception is that the First Amendment can be violated by anyone who wishes to silence another person’s free expression. This is not true. Constitutional amendments were created to give rights, protections, and freedoms to individuals while, at the same time, placing limitations on the government.
Thus, the First Amendment restrains the government from deciding whose viewpoints may be heard and whose may not. In the case of Police Department of Chicago v. Mosley, the U.S. Supreme Court advised that “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” CSU, as a public institution of higher education, is deemed to be an arm of the state government; therefore, it is legally required to allow the expression of multiple viewpoints on campus, even when those viewpoints may be unpopular and run counter to institutional values and academic integrity. Other public universities are constrained in the same way.
I have noticed that, as a society, we tend to have a love-hate relationship with the First Amendment. This is certainly true on university campuses.
It is easy to embrace the First Amendment when it allows us to make our voices heard or permits the expression of viewpoints we support. In fact, demonstrations and protests have been the catalyst for significant societal change throughout our country’s history, including, for example, passage of the 19th Amendment, which gave women the right to vote, and passage of the Civil Rights Act of 1964. It’s hard to imagine how social justice movements could ever advance without relying upon the protections and freedoms that are the hallmark of the First Amendment.
On the other hand, we struggle with the First Amendment when it protects expression we find offensive, hateful, or hurtful. In these cases, our instinct may be to squelch speech and perhaps to punish those who deliver it. But the same legal principles that protect our own speech from governmental intrusion also protect the speech of others: The government may not infringe upon the free expression of ideas merely because the government finds them distasteful. In Texas v. Johnson, the U.S. Supreme Court put it this way: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.” This means that, as much as we may oppose certain viewpoints, including speech that is characterized as hate speech, it is largely protected by the First Amendment.
Yet, the fact that public institutions are required to allow certain speech should not be interpreted as an endorsement of the viewpoints expressed. In fact, an institution can choose to exercise its own free speech rights to condemn expressions that it finds are antithetical to its values and beliefs. The institution can also offer educational programming that counters the speech with which it disagrees and allows opportunities for other voices to be heard. Similarly, members of the campus community may engage in counter-speech and counterprogramming to combat hate speech, so long as they do not interfere with the rights of others to exercise their right of free speech. In certain instances, scheduling counterprogramming that occurs simultaneously with controversial speech serves to defuse an otherwise tense situation.
It is easy to embrace the First Amendment when it allows us to make our voices heard or permits the expression of viewpoints we support. ... On the other hand, we struggle with the First Amendment when it protects expression we find offensive, hateful, or hurtful."
Without a doubt, some speakers choose to engage in ways designed to garner a strong reaction. Sometimes, the best response to provocateurs is no response at all. I recall a situation when speakers from a high-profile group known for their controversial beliefs came to CSU several years ago during graduation weekend. Although they demonstrated in their usual vitriolic manner, remarkably, they did not receive any attention from the public, which deprived their incendiary rhetoric of the oxygen it needed. Because they didn’t get the attention they desired or expected, they left campus after being there for only a short time.
Although the First Amendment is broad in its reach, it is not without limits. It does not allow individuals to silence the free expression of others through disruption, threats, intimidation, or violence. Additionally, courts have recognized that public entities, such as CSU, can impose reasonable content-neutral restrictions on speech that apply to everyone regardless of their message. Examples of these restrictions include prohibitions on blocking reasonable access to buildings, using public areas for expressive activities during certain times, and using amplified sound.
As important as it is to understand the First Amendment’s legal landscape, we should not lose sight of our responsibility as members of society to exercise our free speech rights in a thoughtful and intentional way. In a First Amendment symposium, I once heard a U.S. Supreme Court justice remark that just because we have the constitutional right to express ourselves doesn’t mean we should always use it. Sometimes, our expression can have a detrimental impact on others in our community, even if that was not our intent. A corollary to this is the notion that just because our speech may be protected by the First Amendment does not mean it is free from consequences. A single post on social media, for example, can result in a public backlash and have a permanent impact on an individual’s reputation and relationships with others.
It is always important that we exercise our rights wisely; that begins with understanding those rights and how they apply to our own lives, work, and voices.
Jannine Mohr, J.D., is deputy general counsel of the CSU System and oversees the legal team at Colorado State University in Fort Collins. She has taught the CSU course Law in Student Affairs, with expertise in the First Amendment’s application in public higher education.
Illustration at top: Dave Cutler
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