The First Amendment: What does it say and what does it mean?

Photo credit: Peter Knox.

submitted by Linda Knox

“The First Amendment seems clear enough, and yet there are questions about every single clause. It helps to understand a bit about how these clauses have been interpreted by courts over the years,” court Attorney Teresa Killeen explained during her talk at “Manchester Talks about Free Expression” on November 19. Her presentation, The First Amendment: What Does It Say and What Does it Mean? was built around questions she’d received from participants in advance and highlighted key phrases in the Amendment that have been interpreted and challenged throughout our history and that have shaped our current understanding of a right we often refer to as “Free Expression.”

For starters: “Congress shall make no law,” says that this amendment refers to the federal government — but it came to apply to state governments as well in 1868 through the Fourteenth Amendment (also known as the Equal Protection Amendment), which includes: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” But what about the private sector? Can an employer prohibit certain speech, or punish employees for speaking in a way deemed inappropriate for the company? Yes, as long as the employer is not a unit of state or federal government (a university or school, for instance). But, Killeen noted, there is an aspect of this interpretation that is unclear and troubling today: How is the workplace defined? Does it include your social media? How far into our private lives will we allow corporate policy to intrude?

At the heart of the Amendment, the phrase “abridging the freedom of speech” begs the question what is speech? “‘Speech’ includes pure speech, speech-plus, and symbolic speech, and they’re all handled a little bit differently,” Killeen began. ‘“Pure speech’ is speech that is words only, ‘speech-plus’ is speech accompanied by actions such as picketing, and ‘symbolic speech’ is an action that constitutes a statement, such as burning the flag.” In all cases, speech deemed to be obscene, defamatory, fighting words, or inciting illegal action is not protected. Clear enough, but how do we know what’s “obscene,” “defamatory,” etc.? While there are legal precedents that serve as guideposts, in practice definitions are often open to local interpretation. One community’s high art may be obscene to another. So, in effect, we build meaning in conversation with each other. 

Attorney Killeen’s presentation and the discussion that followed delved into details relating to speech in public forums, non-violent picketing, political speech and parody, hate speech, protections for the media, protections for non-citizens, and more. “[My] takeaway is that because the First Amendment is not written with any specificity, it is not ever really on firm ground. Its definitions and meaning constantly change based on who is in power at any given time,” one participant wrote. “[Another takeaway] is that our constitution … is negative. It only states what cannot be done.” Another participant added, “We the people are demanding change. First part is understanding our rights. I now have a better understanding of what the [First Amendment] means.” 

If you’d like to receive a copy of Attorney Killeen’s slides and her written responses to questions that were submitted prior to the event, send your request to Info@manchester-voices-indivisible.org. 

“Manchester Talks about Free Expression with Teresa Killeen” was moderated by Fritz Swanson and presented on November 19 at the K-J House in Manchester by Manchester Voices Indivisible, a nonprofit, nonpartisan, pro-democracy organization.

“Manchester Talks!” will continue next year. Watch for a new topic every third Wednesday, beginning February 18.

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by Sara Swanson

Sara Swanson is an editor, writer and a founder of the Manchester Mirror.