The First Amendment of the United States Constitution prohibits the making of any law respecting the establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
The Supreme Court has ruled many times about the validity and interpretation of the freedom of speech portion of this amendment. Rulings were not made until the 20th Century.
In 1919, in the case Schenck v. United States, Justice Oliver Wendell Holmes, Jr., writing for the Court, explained that “the question in every case is whether the words used in such circumstances are of such a nature as to create clear and present danger (not the movie) that they will bring about the substantive evils that Congress has a right to prevent.”
The findings were similar in Debs v. United States, Frohwerk v. United States and Abrams v. United States. All were in 1919.
In Whitney v. United States (1927), Justice Louis Brandeis wrote, “Those who won our independence…believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; THAT THE GREATEST MENACE TO FREEDOM IS AN INERT PEOPLE (my personal emphasis); that public discussion is a political duty; and that this should be a fundamental principle of the American Government.
In Yates v. United States (1957) the Supreme Court ruled that advocacy of abstract doctrine remained protected (Colin Kaepernick, et al.) while speech explicitly inciting the forcible overthrow of the government was punishable under the Smith Act.
During the Vietnam War, in Brandenburg v. Ohio (1969) the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms. “Our decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”
In Cohen v. California (1971), Justice John Marshall Harlan wrote in the majority opinion that Cohen’s jacket fell in the category of protected political speech despite the use of an expletive: “one man’s vulgarity is another man’s lyric.” Mr. Cohen wore a jacket with the words, “Fuck the Draft” in the corridors of a Los Angeles County courthouse.
**In the case of Texas v. Johnson (1989), the Supreme Court reversed the conviction of Gregory Lee Johnson who burned an American Flag at a demonstration during the 1984 Republican National Convention in Dallas, Texas. Justice William J. Brennan, Jr. wrote in the decision that, “IF THERE IS PRINCIPLE UNDERLYING THE FIRST AMENDMENT, IT IS THAT THE GOVERNMENT MAY NOT PROHIBIT THE EXPRESSION OF AN IDEA SIMPLY BECAUSE SOCIETY FINDS THE IDEA OFFENSIVE OR DISAGREEABLE.” (Kaepernick,et al.).
PETITION AND ASSEMBLY
In California Motor Transport Co. v. Trucking Unlimited (1972), the Court ruled; “The right not only protects demands for “a redress of grievances” but also demands for government action. The petition includes according to the Supreme Court the opportunity to institute non-frivolous lawsuits AND MOBILIZE POPULAR SUPPORT TO CHANGE EXISTING LAWS IN A PEACEFUL MANNER. (Kaepernick et al.).
In Borough of Duryea v. Guarnieri (2011) the Supreme Court ruled regarding the Free Speech Clause and the Petition Clause. “….Both speech and petition are integral to the democratic process although not necessarily in the same way. THE RIGHT TO PETITION ALLOWS CITIZENS TO EXPRESS THEIR IDEAS, HOPES AND CONCERNS TO THEIR GOVERNMENT AND THEIR ELECTED REPRESENTATIVES, WHILE THE RIGHT TO SPEAK FORSTER THE PUBLIC EXCHANGE OF IDEAS THAT IS INTEGRAL TO DELIBERATIVE DEMOCRACY AS WELL AS THE WHOLE REALM OF IDEAS AND HUMAN AFFAIRS. BEYOND THE POLITICAL SPHERE, BOTH SPEECH AND PETITION ADVANCE PERSONAL EXPRESSION…..(Kaepernick, et al.)
The First Amendment also guarantees the right of people to disagree with what is said or done. Doing so does not make them a better person or American than the person they are upset with.
People like Jerry Jones and the Coach of VMI are really good people. If they had said, “I respect your right to exercise the First Amendment, but I would prefer you do it outside the realm of our games.” Instead, they chastise and threaten Americans for doing what our Founding Fathers included in our Bill of Rights and confirmed countless times by the United States Supreme Court. THEY are the ones breaking the law. THEY are offending all those who died defending our Constitution and way of life.