© 2019 by Nate Granzow

No, Your 1st Amendment Rights Are Not Being Infringed

December 30, 2015

 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

 

I don't profess to be a constitutional expert. It contains 4,500 very carefully selected words that carry great significance. One could pore over it for years and still have to argue what the founding fathers really meant. That said, there are some aspects of the Constitution that should be pretty self-evident, and if you're going to invoke the Bill of Rights as a defense for your behavior, it behooves you to know what that actually covers, and how much is entirely imaginary.  

 

Recently, I read this piece about an Ohio newspaper editor who was fired after submitting an op-ed piece about the NRA and gun control for publication. On its surface, this appears to be a case involving a publisher seeking to silence one of their staffers who happened to have a contradictory opinion. Here's the core of the matter, though: "Mrs. McLaughlin believes she was not fired for writing the editorial but for attempting to discuss the matter with the publisher, who she agrees has the right to reject an editorial." 

 

Upon reading that line, I immediately knew what happened. The publisher, the one who gets the final say in what their publication publishes, shot down this woman's article. For personal reasons or professional, it really doesn't matter. The Bowling Green Daily News is privately owned by the Gaines family and is under no obligation to publish anything. The editor who wrote the piece clearly confronted the publisher on the matter, the conversation likely escalated, and the editor was summarily terminated. That's on par with a dockworker arguing with the foreman about how they loaded a truck, then being surprised when the foreman tells them to get their things and leave the premises. It's business, and in business, you have to respect those above your pay grade or they can offload you with a quickness. It's always been that way.

 

So end of story, right?

 

Turning my sights (regrettably) to the comments section, I found such gems as this: "Did anybody mention the 1st Amendment? I'd advise filing a wrongful discharge suit."

 

As you might imagine, this keyboard warrior with an advanced degree in underwater basket weaving from Wossamotta U is probably not the best source of legal advice. We've already covered why this has nothing to do with the editor's 1st Amendment rights, but I'll reiterate: If the editor wanted to publish this to her personal website, or send it as a letter to her congressman, or shout it like a crazed homeless person smelling of cheap vodka and cat urine at passersby in the local park, she's constitutionally guaranteed the right to do that. Those rights do not apply when it comes to submitting her work to the Bowling Green Daily News or any other publication.

 

As for the wrongful termination suit idea, here are some of the many reasons one might consider a wrongful termination suit: 

*If the employer mislead an employee about their chances for promotions or wage increases.

*If the employer fabricated reasons for firing an employee when the real motivation was to replace that employee with someone who will work for lower pay.

*The employer violated a written or implied promise.

*The employer defamed the employee.

*The termination was in reprisal for whistle-blowing.

*The termination was discriminatory (based on race, sex, age)

 

Note that none of these have anything to do with her 1st Amendment rights. 

This reporter at the University of Missouri campus protests knows his First Amendment rights. His classmates and professors? Not so much.

 

People seem to think that if someone's words are not heard—regardless of the context or the forum—that automatically makes it a 1st Amendment issue. An instance of this I see regularly is when someone (usually being petulant) goes to a social media page and ends up having their comments blocked, then begins shouting, "My rights are being violated!"

 

Again, no, they aren't. The 1st Amendment protects you against unwarranted government infringement of your freedom of expression, whether that be speaking, writing, exercising your religion, or protesting peacefully. That ends abruptly there. When you use a social media site owned and maintained by a private company, and then go to a page belonging to another user of that site, you're so far away from the freedom of speech that those words should be shuffled into the dusty archive of your lexicon and stored there until you understand what they mean.

 

Now what about when people say something in a public forum and end up arrested for having said it? That must be a 1st Amendment violation, right? Not necessarily. If the individual has called for violence, that's no longer a matter of exercising rights, that's an actionable threat. According to Cornell's Legal Information Institute, "The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence." The example we learned in J-school was, "Don't go shouting 'fire' in a crowded theater if there is no fire." 

 

The right to peaceably assemble is also limited in that regard: "The government may prohibit people from knowingly associating in groups that engage and promote illegal activities." You're going to have a difficult time invoking your right to peaceably assemble if you're caught having a powwow with a terrorist cell.

 

So, to summarize, if you're going to invoke the Bill of Rights as a defense for your words, at least take the time to learn when that's applicable. Also, don't make threats if you don't want to end up sharing a cell with a hirsute, bovine man with a moniker like Bubba or Knuckles.

 

(Featured image courtesy of the2ndamendment.com)

 

 

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