First Amendment Issues are NOT (necessarily) Free Speech Issues

All freaky, kinky, queer women are human beings.

Not all human beings are freaky, kinky, queer women (more’s the pity).

So how is that related to the first amendment? The First Amendment (FA) protects more than just speech. It protects a total of 5 separate rights. Let’s take a look at the full text and then break it down:

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.

Broken down, it looks like this:

Congress shall make no law

  1. respecting an establishment of religion, or prohibiting the free exercise thereof; or
  2. abridging the freedom of speech,
  3. or of the press;
  4. or the right of the people peaceably to assemble, and
  5. to petition the Government for a redress of grievances.

The shift from “or” to “and” has caused some interpretive comment. Initially there was some disagreement over whether peaceful assembly was only protected while petitioning the government for redress and/or petitions were only allowed through peaceful assembly (because of the word “and”). The second option got almost no traction at all, but there was some serious discussion about which sorts of peaceful assemblies must be allowed before it was sorted out as a broad right to peacefully assemble for pretty much any purpose.

Though #1 above could reasonably be split into a 1a (establishment) and 1b (free exercise), in US law schools today these are taught as one combined right, with neither fully protected without the other being protected.

All this comes up because of 2 & 3:

Congress shall make no law

2. abridging the freedom of speech,

3. or of the press;

The freedom of the press is thus a First Amendment issue, but First Amendment issues of involving freedom of speech are not (necessarily) issues of freedom of the press. You’re going to be reading a bit in the upcoming days about Trump’s move to exclude a CNN reporter from an otherwise open press event. (The actual action was undertaken by Bill Shine, but only via the delegated authority of Trump.) There have been a number of responses to this and there will be more still, but one interesting exchange (and by “interesting” I mean that someone was incredibly, incredibly stupid and much smarter people stepped in to help that stupid person out) took place on CNN’s twitter feed. In the stupid comment, the author appears to have entirely failed to appreciate that an issue impacting freedom of the press is not the same as an issue impacting freedom of speech. There were also some, well, other problems.

I can’t find it now (that twitter feed goes FAST), but the essence was that one person claimed that the FA was threatened by the administration excluding reporters on the basis of editorial disagreements. Someone else, someone very, very stupid, claimed that Trump was allowed to exclude reporters because, and I quote, “it works both ways”.

Now the only conceivable interpretation that doesn’t make you question how this person could point and click on a website is that “the First Amendment works both ways”. There simply wasn’t anything else that was “working” in any sense, save the FA working to protect the ability of CNN’s reporter to do her job. Therefore the only thing that could be working “both ways” was the FA.

But what in the FA could possibly give Trump the power to exclude a White House credentialed reporter from an open-pool event? The freedom of religion?

No, of course not, but if the freedom of the press – the operant freedom in the first case – was giving Trump a power to do or not do something, Trump would have to be part of the media (formally or informally). He’s not, and even if he had a part time job in media, that job isn’t what would give him the power to permit or exclude anyone’s attendance at a White House event. The job that permits that is the Office of the President of the United States of America, and that office is granted no powers under the freedom of the press.

One could argue that this very, very wrong person meant that the FA worked both ways – one way to permit questions, the opposite way to prevent reporters attending events – by virtue of different clauses. In that case, which is most probably what this wrong person intended, the only clause that has any possible bearing would be the freedom of speech. Yet that, too, has no power to act as the wrong person suggested. Trump may very well have a desire to communicate a specific message, but that would only give him rights against the government. It doesn’t give him rights against private media companies or individual reporters.

The long and short of it is that when interpreting any amendment, remember that the Constitution cannot regulate a relationship to which it is not a party, save to the extent authorized through the 13th, 14th, and 15th amendments, and even then the only time the constitution can regulate that relationship is when the parties include at least one non-federal governmental entity. Trump as a private speaker gets no rights against CNN through the operation of the FA. Trump as president has no free speech rights, and, finally, Trump as President must respect the rights of the press.

It can be confusing, but keep in mind that the rights of free speech and the rights of a free press are different, and that while the five individual rights granted under the FA are severable, there is no component of the FA which grants rights to the government itself.


  1. sonofrojblake says

    You’ve gone a long, long way round saying “what could this person POSSIBLY mean?!?”, proposing and rejecting several clauses, yet perversely neglected to consider (and reject) that they may have meant Trump’s freedom of assembly. As in, he gets to say with whom he assembles. I mean it’s bollocks, clearly, but it’s also (to me at least) pretty clearly what the Trumpkin was getting at.

  2. Pierce R. Butler says

    Trump as president has no free speech rights…

    So Congress has the power to pass laws saying presidents can’t talk about ${stuff}?

  3. says

    @Pierce R Butler:


    However, if a law that congress passes interferes in the ability of the Executive to perform its constitutional duties, then that law will be set aside by the courts to the extent that it interferes.

    The important bit here legally is that the Executive cannot rely on the First Amendment when arguing to the courts to set aside the law. Instead a separation of powers or enumerated powers argument has to be used. It’s not that Trump has no recourse in such a situation. It’s that he has no recourse to the First Amendment. The FA will help him 0% in that fight. Articles 2 and to some extent 1 will help quite a bit.

    I’m trying to think up an example that isn’t completely ridiculous. Okay, let’s look at Citizens United.

    We all know that in that terrible decision, SCOTUS decided that spending money to elect some political candidate constituted an act of political speech. SCOTUS overturned this on free speech grounds. Well, there are also laws that prohibit the President from using any federal resources, directly or indirectly, or the trappings of the office in order to campaign for someone. If Trump spent his own money to make a political ad encouraging people to vote for some Alabama pedophile (we don’t want to make this example ridiculous after all, so let’s keep it grounded) for federal office, as a private citizen that would be speech protected by the First Amendment. However, as President that would be illegal and the FA wouldn’t help.

    But what does that mean? In practice, the President is allowed to use Air Force One to travel to political events and to have secret service protection while engaging in electoral politics. But some practical things that are available to anyone are not available to Trump. He can’t have his political ads filmed inside the White House, though any other person could certainly film their privately funded political ads in their own homes. He could argue that communicating a “down home” vibe is part of the message he wants to send and that barring him from using his own bedroom or kitchen in the ad is a limit on his speech. For anyone else, this would be an unconstitutional restriction on political speech, but not for the President.

    Other messages, too, can be prohibited. Any other person can say, “I’m ${job title}, I have been for 18 months now, and I’m telling you to go vote for Alabama’s favorite pedophile.” But Trump cannot say, “I’m President of the United States of America, I have been for 18 months now, and I’m telling you to go vote for Alabama’s favorite pedophile.” This is a purely factual statement about occupying a particular office, having a particular job. The FA clearly protects such statements. However, Trump as President does not have any FA claim, and the power to tell people how to vote is not a power expressly granted to the Executive in the Constitution, nor is it a power necessary and incidental to the proper execution of any other power of the Executive. If Trump took that ban to court, he’d lose.

    There are numerous compromises because we recognize that Trump is president every single second of every single day for some important purposes (he’s not given the power to launch air strikes only between 9 and 5). But we also recognize that there is an absolute human necessity to have downtime if the President is going to do an effective job (I didn’t say Trump here because there’s no indication that downtime would help him at all). So a certain amount of flexibility is allowed – such as traveling on Air Force One to a political event, as I mentioned. Also, some violations are considered more serious than others. At an all-Republican fund raising event, if Trump tried to be jokey about going over-the-top authoritarian and said, “I’m POTUS and I order you to vote for Alabama’s favorite pedophile, and give generously to the RSCC as well!” it’s unlikely that congress would act in any way to try to hold him accountable for the violation, despite the fact that a violation might easily exist. On the other hand, if he wanted to make a video ad with the same exact phrase and spam it out on the internet, congress probably would act to hold him accountable and his argument that he was joking would have little effect in either congress’ decision or the process of resolving the claim.

    So we can see that the confusion between Trump as person and Trump as President causes some nightmarish problems of interpretation that creates a zone of ambiguity upon which is hard to intrude, but where it is clear that Trump as President is having speech regulated, congress has the power to do so in ways it could never do with a private citizen.

    FSM, I hope that’s enough to make this topic reasonably clear, because if I’m forced to go into more detail, I’ll have to start acknowledging more contradictions and complexities and I think the whole subject will only become more muddy instead.

  4. wontbehere4long says

    Well, this is hard for me because I find freedom of speech to the stupidest, most overrated “principle” white people have ever invented.

    Bring it on, ya thumpers, I dare you.

  5. Pierce R. Butler says

    Crip Dyke… @ # 4 – Thanks for that explanation, though I suspect (and yes, IANAL!) your argument may well be put to the test – and lose – by Inauguration Day 2020.

    We’ve already had a president explicitly urge citizens to visit a named theme park, which surely violates the same rules for which K. Conway got her wrist slapped after plugging a now-defunct fashion line, for example. (At least we need not worry that DisneyCo will comp him a set of tickets – security requirements would probably require closing most or all of D-World if he tried to use them, and they’re not that grateful…)

    If you can re-write yr reply in short words and bait one of the “Faux & Friends” airheads into repeating the gist on camera, we’ll probably get a test case pdq.

  6. Pierce R. Butler says

    Al Gore did have to pay a campaign-law violation fine for electioneering on an office phone (from veep, not WH, facilities, iirc) even though his campaign did promptly reimburse the government for long-distance charges (I don’t think anybody brought up free speech issues as such). Just sitting in that chair and breathing that air made him a Hatch Act villain, it seems.

    But in a rabbit-hole Supreme Court era in which writing a check constitutes an act of self-expression but doctors privately advising patients as to their legally-allowed options can face criminal charges, the meaning of the First Amendment apparently varies according to which funhouse mirror any five Supremes want to hold it up in front of. Are we Kafkaesque yet?

Leave a Reply

Your email address will not be published. Required fields are marked *