Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.
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Since the state of Florida dissolved the Reedy Creek Improvement District, partly in response to Disney’s opposition to legislation precluding teachers from talking about sex and gender with kindergarteners, there has been a steady drumbeat from those who contend that Disney’s freedom of speech has been violated.
These claims are as spurious as those from the right who claim that their freedom of speech has been violated because Twitter has banned them.
Let’s take a look at what, exactly, citizens are guaranteed under the Constitution and why it matters.
The First Amendment is pretty clear. Here it is in its entirety: “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.”
That’s it. The amendment speaks solely to governmental action that abridges free speech, not to societal actions or the actions of other individuals.
In Citizens United v. FEC, the Supreme Court made it plain that these protections extended to corporations as well: “The First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.” In other words, corporations have the same free-speech rights as all Americans.
Again, that’s it. It doesn’t say that a state government can’t dissolve special jurisdictions or that the governor can’t be peeved at a company and look for ways to persuade them of the error of their ways.
The First Amendment doesn’t protect anyone from the vagaries of the political or social systems in which they reside. It simply precludes state and federal legislatures from abridging or preventing speech. The consequences of their speech still adhere to the speakers.
The First Amendment is not the only defense of free speech in the Constitution. The principal author of the Constitution, James Madison, believed that the mechanisms of the Constitution itself provided sufficient protection for civil liberty, and he was (correctly, as history has borne him out) concerned an enumeration of rights — like the Bill of Rights — eventually would evolve into limits on rights.
Madison was a sturdy advocate of free speech and absolute necessity of public debate and saw clearly that no law could bind a free society better than their own sensibilities and tolerances. In December 1791, he wrote: “Public opinion sets bounds to every government, and is the real sovereign in every free one.” It is the people, and only the people, who rule. For that rule to be wise and fully informed, the people have to be able to communicate with one another away from the tentacles of a grasping government.
The Constitution assumes, a priori, a public that is literate, engaged and free to participate in the development of public policies and laws and the creation of the underlying opinions and beliefs that form the foundation of those laws. It is, to borrow from John Adams, wholly unsuited for any other sort of people.
That communication, because it is about the most meaningful and the most essential issues of the day, is always going to be contentious. Consequently, it is incumbent on all citizens to be as tolerant of alternative viewpoints as possible, and when such tolerance is not possible, those with less popular viewpoints need to be brave enough and durable enough to withstand aggressive criticism.
At all times, it is important for everyone to remember that free speech is a gift from God and a natural consequence of the dignity and worth of all people. Moreover, it is an essential practicality in a society not ruled by monarchs. If people cannot participate in societal decision-making processes in a peaceful manner, they will eventually resort to violence.
In short, the alternative to free speech is not silence. The alternative is violence.
In many respects, the great generational challenge we face — reclaiming and reasserting the essential nature of our institutions, perhaps chiefly among them the Constitution — depends on our ability to protect and value free speech while understanding that governments have limits, both positive and negative.
Which brings us back to Disney. Disney’s First Amendment rights were not compromised by the Florida government. Nor have the First Amendment rights of those who have been banned from Twitter or Facebook or been attacked by an unruly online mob been abridged by Congress or any other jurisdiction of the United States.
The First Amendment does not guarantee you a spot on the evening news. It only guarantees that Congress (and, through the operation of the 14th Amendment, the states) can’t pass a law abridging your freedom of speech. Everything else is at the suffrage of your audiences.
• Michael McKenna is a former deputy assistant to the president.
• Michael McKenna can be reached at email@example.com.
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