The First Amendment Does Not Mean "Screw You"

 

    Salem Witch Trials in the 1690s

There are lots of fine lines between serious dangers to society and First Amendment protections. Aside from the classic understanding that you cannot falsely scream “fire” in a crowded theater, our constitutional right to free speech also does not allow inciters, fraudsters and scammers to escape prosecution and civil liability simply because their foil is accomplished through “speech.” But there are more subtle realities to social media postings, religious beliefs and the responsibility that we have by simply living in a nation of laws. We know that the First Amendment is focused on what governments can or cannot do to limit speech. But what happens when laws extend to individuals?

There is a big question on whether those who have business licenses and commercial protections under the law for the operation of their businesses can engage in behavior that society has, under various statutory and constitutional authorities (e.g., Civil Rights Act, Fourteenth Amendment, etc.) is labeled illegal or where mandates apply. Further, how far can the federal government, states and municipalities go in their lawmaking to ban certain forms of behavior that run afoul of those precepts (e.g., racial, ethnic and gender discrimination) or force actions that individual beliefs find repugnant? For example, where the relevant statute or regulation mandates what employer healthcare plans must provide to employees, religious issues may apply.

Let’s start with an increasingly conservative, perhaps even a radical right-wing Supreme Court, that seems to have prioritized the tenets of established religious beliefs (albeit minority public views) over these social priorities. “In 2014, the U.S. Supreme Court decided a case with major implications for current and future reproductive rights laws. In a close 5-4 decision, the Court decided in Burwell v. Hobby Lobby Stores, Inc. that closely held corporations can refuse to provide birth control coverage to their employees if doing so would violate the corporation's ‘sincerely held religious beliefs.’ Hobby Lobby had argued that their Christian faith precluded them from providing birth control as part of a larger health care benefits package.” FindLaw.

The Supreme Court now faces another opportunity to address such religious priorities in the face of state anti-discrimination laws. “The case before the court, 303 Creative LLC vs. Elenis, involves Lorie Smith, a graphic artist and a web designer. She wants to design websites for weddings, but she refuses to do so for same-sex weddings because of her religious beliefs.

“Colorado law prohibits businesses that sell or offer services to the public from discriminating based on ‘disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.’… The law also prohibits businesses from displaying a ‘notice’ that ‘indicates that the full and equal enjoyment of the goods [or] services ... will be refused’ based on a protected characteristic… Smith filed a lawsuit in federal district court to have the law declared unconstitutional as applied to her and for an injunction to keep it from being enforced against her.” Berkeley School of Law Dean Erwin Chemerinsky in the December 4th Los Angeles Times.

Indeed, we may be nearing an overriding constitutional interpretation where laws intended to ban out-and-out racial, ethnic or gender discrimination no longer apply if an individual’s personal religious beliefs include precepts that they believe mandates that discrimination.

Chemerinsky continues: “Although the free exercise of religion issue is not directly presented, it also underlies this case. It is the same question, indeed even the same Colorado law, that the court reviewed in the 2018 case, Masterpiece Cakeshop vs. Colorado Civil Rights Commission. In that case, a baker refused to design and bake cakes for same-sex weddings. In a majority opinion by Justice Anthony M. Kennedy, the court decided in favor of the baker on narrow grounds, without deciding the broader question of whether someone’s claims to free speech or free exercise of religion could be the basis for an exemption from anti-discrimination laws.

“The willingness of the current court — with an even more conservative group of justices — to take this new case is concerning, and might suggest its interest in carving out exemptions from longstanding civil rights laws.

“There will be grave consequences if the court rules in favor of Smith. There is no reason why such new 1st Amendment exemptions would be limited to sexual orientation. Those who want to discriminate against others based on race, sex or religion could simply raise a 1st Amendment defense. And this would seemingly extend to laws prohibiting discrimination in all contexts, such as in employment and housing.

“For example, an employer with religious objections to employing gay, lesbian or transgender individuals could claim an exemption from state and federal laws intended to prohibit employment discrimination… Similarly, an employer who, based on religious beliefs, thinks that men and women should not be in the same workplace, could refuse to hire women (or men). A landlord with religious objections to interracial marriage could refuse to rent apartments to interracial couples.” And that’s the religious aspect of this conundrum. How about speech itself?

First Amendment issues have also come to the fore with Elon Musk’s acquisition of and changing the format rules for Twitter. Nothing brings home the notion that social media platforms can eschew responsibility for third-party-posted content like the global debate surrounding fake and often toxic postings on social media. As Congress debates the containment of social media platforms – a balance between the First Amendment and the “safe harbor” protection for “neutral” platforms under section 230 of the federal Communications Decency Act, on the one hand, to outright misleading and dangerous distortions of truth that can kill or exhort violence, on the other – the European Union (the third largest audience of Twitter followers behind the US and Japan) is implementing a much stricter approach. EU laws require vastly more accountability and impose dire sanctions (from outright bans to massive fines) on social media platforms with patterns of malignant and distorted content postings.

Forgetting about his plunging Twitter advertising revenues from incompetent decision-making and whether he is naïve or simply arrogant, Elon Musk is climbing into the crosshairs of EU media regulators. “Musk tweeted on Oct. 27, the day he acquired the social media platform, that ‘the bird is freed’ — an indication that he intended to loosen Twitter’s content screening policies. [European Internal Market Commissioner Thierry] Breton tweeted back the very next day: ‘In Europe, the bird will fly by our rules.’… Musk would be well advised to take Breton at his word. The European Union has enacted rules governing online content much stricter than anything in place in the U.S. The EU also has policies on employment rights that are distinctly more worker-friendly than Musk’s companies have had to comply with here.” Michael Hiltzik, LA Times, December 4th. Europe does not have First Amendment restrictions, however.

Technology, a shrinking social media-driven world, and direct consequences from unbridled acts of discrimination, bot-empowered election interference, dangerous and often deadly medical misinformation, speech intended to inflame and incite violence, and malignant conspiracy theories that can destroy lives, collide with our notion of First Amendment protected free speech. But shouldn’t we equate the ban on yelling “fire” in a crowded theater with speech that does vastly more damage to vastly more people? The world is hardly the “town-crier” based communications system that defined the era in which the Bill of Rights (which includes the First Amendment) was passed. 

I’m Peter Dekom, and before the United States existed, the Salem Witch Trials were the method that religious beliefs trumped personal freedoms… today… there is another form of punishment hiding behind a notion of a constitutional right to harm others.