The 1st Amendment’s limits

As you read this, please know that by its charter and the requirements of being a 501-c-3, the Dietz Foundation can not be political.  That’s a bit of a tight rope to walk if you are going to also discuss American history which is invariably political, even more so when you’re going to discuss part of the Bill of Rights and the Constitution.  Keep this in mind–the intent here is education.  There is a great deal of ignorance about the most important of amendments and what it does/doesn’t permit.

The 1st Amendment:

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.

Pretty simple, right?  

It is–until it isn’t.  There are limits on what constitutes freedom of speech or the right to assemble.  This is currently important as several individuals are asserting the government has no right to restrict church attendance or gatherings like church or even the right to have massive parties and weddings in the face of the world pandemic (Coronavirus).  The U.S. government and state governments do have the right to restrict these things and that has been emphasized by the Supreme Court going back a century.

The example of restriction that is best known is Justice O.W. Holmes’ assertion that you do not have the right to yell ‘fire’ in an occupied theater.  Your right to free speech ends when it is found to be clearly and intentionally against the greater good of the state/nation.  The example was used in a 1919 case (Schenck v. United States) about a man (Schenck) who campaigned for men to refuse conscription into the military during World War One. This led to the famous Holmes comparison–the actual words: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

It’s the first of several decisions which defined limits of free speech.  The big thing–it was a unanimous decision.  9-0.  No one against the decision.  Two more cases in similar vein came up in the next few years…9-0 on those as well.  When the Supreme Court makes unanimous decisions, those don’t get overturned.

So–what does this have to do with the freedom of assembly and the assertion that government cannot interfere with churches having services?

Simple–look at the last part of the Holmes quote to understand.  You can’t create a danger that a government has a right to prevent.  His words apply to assembly, just as they do to speech.  If your actions put others at risk, you don’t have a ‘right’ in that instance.  Your ‘rights’ end when they infringe upon someone else’s.  In this instance, your right to gather together in person is trumped by the right of others to not come down with contagion and possibly die.

The individuals saying they’re going to sue, take this to court–they have no chance.  They are 100% wrong and have clearly never read the Constitution (or they don’t care)…this includes the politicians (who are lawyers!) supporting them.

In a later decision (1949’s Terminiello v. Chicago), the Court ruled in favor of Terminiello, prompting a dissenting opinion from Justice Robert Jackson who had served as the Chief U.S. Prosecutor at the Nuremburg Trials.  In the end, it is that dissenting opinion which has become famous: “”The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Take the time to read the Constitution.  You can read it here.

A good list of 1st Amendment related cases?  Here.

The basic theory behind a lot of the decisions creating the Constitution?  Here you go: Federalist Papers