“Congress shall make no law...”

In the comments section of one of my recent posts about the history teacher in Kearny, NJ, who preached religion to his class, Ed Darrell wonders how anyone can use the first amendment to defend such behaviour:

It is tragic that anyone thinks it is a “violation of the First Amendment” when a government employee (the teacher) deigns to denigrate the religion of the kids, or to promote his own faith. That is exactly the behavior that the establishment clause is intended to prevent.

I quite agree: there are often cases when parts of the constitution conflict, and we have to resolve those situations in ways that are usually obvious. Of course, we all have our own agendas, and sometimes we try to tilt the table in favour of the outcome we'd like.

But this brings up a more general point, even, than that. It's not just a question of whether one clause of the amendment overrides the other; it's a more basic question of what the scope and limitations of the amendment are. And so, with the understanding that these are the opinions of a dilettante, not those of a constitutional scholar, here are my thoughts on the basic question.

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.

Let's start by noting that “Congress shall make no law” is actually a fairly limited context. Specifically, it acknowledges that there may be times when it's right to limit speech, while implying, by forbidding laws that set limits, that such times should be considered individually, and by a different branch of government — checks and balances. It also puts no restriction on, say, employers limiting the speech of their employees, and there are plenty of examples of the courts supporting employers in that regard.

You also can't say whatever you want about someone, defaming them without regard to the truth or accuracy of what you say. Even the press is limited here, despite the first amendment's “free press” clause, and if a newspaper prints something harmful and the courts decide it should have known that it wasn't true, the newspaper will be held liable for it.

Related to that, the record on profanity and pornography is clear. Potter Stewart said he knows it when he sees it, which is precisely the point: individual consideration. Laws have been struck down as being too broad, and yet our general desire to limit certain offensive speech in certain situations has been upheld.

Your freedom to speak doesn't override appropriate use issues. If you stand up in the front of a movie theatre, say, and start preaching, your freedom of speech and of religious observance doesn't allow that and you will be told — rightly — to sit quietly or leave. The police will be called to drag you out if necessary. No one with any sense would disagree.

And there's plenty of precedent for blocking speech that's meant to incite violence or panic, but we leave it to the courts, not the legislature, to set those limits — another example of taking the cases individually. The individual consideration applies also to the other clauses, which is what allows the city to put restrictions on when and where large groups can assemble (for protest rallies or marches, say) — again, leaving it to the courts to decide when those restrictions become unreasonable.

That last thought leaves a dangerous opening, in theory: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, but local regulations can put restrictions on it. That's necessary, of course, in some contexts, as in setting zoning rules that might restrict where a church can be built. It could clearly be abused. This hasn't been a problem in practice, because the courts have historically been very strict about deciding what encouragements and limitations to religious observance are tolerable.

It also seems to me that “free speech” was meant to be just that: speech, with obvious extension to printed matter. But are actions “speech”? Is money “speech” (we say “Money talks,” after all)? I don't think these were meant to be included, but the courts have consistently ruled that they should be. And so the action of burning a flag is considered free speech, the donation of money to a political party is considered free speech, and so on. This makes it hard to pass laws that limit campaign contributions, where there's a delicate balance between reasonable limits and unreasonable restriction of “free speech”.

We have a habit, though, of interpreting “free speech” too broadly. We often think we can say anything, any time, anywhere, and it's protected free speech. In the case of a teacher in a public school, we have not only the “establishment of religion” clause at work, but the general idea, supported by court precedent, that the teacher is employed to teach a certain curriculum, and mayn't just say anything he wants to in class. Mr Paszkiewicz is no more protected by the first amendment for saying what he did than he would be if he tried to teach the kids that, say, the South won the Civil War. Similarly, a teacher in a Christian school would not be protected by the first amendment if he told the students that Christ was not divine.

The first amendment is there for our protection, not for us to abuse.