Last week my colleague Lauren wrote a post on banned books, censorship, and the freedom to read for Banned Books Week. Intellectual freedom is something librarians take pretty seriously, so this week we would like to look at a closely related issue that's been in the news lately: freedom of speech and the First Amendment.
Recently, the Brookings Institution published an article by one of its researchers, describing his survey of college students' attitudes about freedom of speech. The survey lit up the opinion pages for a few days, because some of its results seemed pretty stunning. For example, it found that 19% of college students thought it's acceptable for student groups to use violence to shut down a speaker they disapprove of.
The survey also suggested a serious lack of understanding about what the First Amendment actually means. Sixty-two percent of students believed it requires that a college hosting a controversial speaker also host a speaker with an opposing viewpoint. That is false. Forty-four percent of students believed hate speech is illegal under the First Amendment. That is also false. As vile as it is, hate speech counts as protected speech. That doesn't mean people can't be fired, lose friends, or be kicked off social media for saying hateful things, but it does mean they can't be penalized by the government. Well, not in most cases--special cases like workplaces may be different, and this is probably a good place to say this post is not intended as legal advice. I'm a librarian, not an attorney!
After the story about the survey hit the news, others began to question it. Polling experts pointed out that it was an “opt in” survey, instead of a random sample of students, and that makes its results very questionable. They aren't necessarily false, but more research needs to be done before concluding that they're true. I wouldn't mention such a questionable study at all, except that it generated so much press coverage (and inspired me to write this post).
What's not in doubt, though, is that many people do misunderstand the First Amendment. A recent (and more scientific) study by the Annenberg Public Policy Center found that when Americans were asked to name the five freedoms and rights protected by the First Amendment, 37% couldn’t name a single one. Only 48% could name freedom of speech, and a scant 3% could name the right to petition the government. When asked whether atheists and Muslims have the same rights under the Constitution as other Americans, many mistakenly said they don't (15% and 18%). Another survey by the Knight Foundation and Gallup found that 28% of college students thought that students should be able to keep reporters away from protests. Kids these days, right? Well, 21% of adults agreed with them.
Public misunderstanding of the First Amendment was on display last week after the President suggested that football players who kneel during the national anthem should be fired. Some people said those players should face criminal charges, even though the First Amendment prevents this. Others said the First Amendment keeps employers from firing people for political expression. But that isn’t necessarily true, either.
It's easy to see why there's so much confusion about the First Amendment. It's a complex topic that's been the subject of countless books and court cases. So how do we begin to learning what it really means? First, let’s narrow our focus to freedom of speech, and leave freedom of religion, the press, assembly, and petition for another time. The words in the First Amendment about freedom of speech say, "Congress will make no law [...] abridging the freedom of speech." Seems straightforward, right?
It isn't. While the plain text says "Congress", the First Amendment doesn't just apply to Congress. It applies to the government in general, from the federal to the local level. The plain text says "speech", but it doesn't just mean speech. It also means writing and publishing, and as well as many kinds of expressive non-verbal conduct, such as wearing anti-war arm bands or kneeling during the national anthem. And "no law" doesn't really mean no law, because many laws do regulate types of speech that aren't protected by the First Amendment, such as libel, obscenity, or the incitement of violence. Some types of speech, like commercial speech, are less protected than others, and some groups, like public school students, prisoners, and soldiers; have more restricted First Amendment protections than the general public. Did I mention this is a complicated topic?
As a reference librarian, I often advise people researching complex topics to begin with an encyclopedia article or authoritative webpage instead of a book. Shorter articles offer a bird’s eye view of a topic, so you can get a sense of the main issues, and how they fit together, before wading into the details. The best short overview of the topic I've seen is an article called "Freedom of Speech and the Press" on the National Constitution Center's Interactive Constitution site. It's written by two prominent legal scholars, and it includes short descriptions of the most important Supreme Court decisions about freedom of speech, with links to more detailed summaries of those cases at another excellent website, called Oyez.
For more detail, DPL's online reference book collection has several legal encyclopedias with good articles on the First Amendment. The Gale Encyclopedia of American Law has a nice article on freedom of speech, with many links to related topics. A more technical article, with a discussion of the Supreme Court's evolving views on freedom of speech, can be found in the Encyclopedia of the Supreme Court of the United States.
Brief descriptions of important Supreme Court cases about freedom of speech can be found on the Bill of Rights Institute's website. Another excellent resource is the First Amendment Center at the Newseum Institute's website. It has a great interactive primer called Is Your Speech Protected by the First Amendment? If you have questions about particular aspects of the First Amendment's speech protections, there's also a comprehensive FAQ page.
Of course, DPL also has a wide range of books about freedom of speech and the First Amendment. I'm listing a few below, but one I particularly enjoyed is called Freedom for the Thought that We Hate, by Anthony Lewis. Its title comes from a quote by Supreme Court Justice Oliver Wendell Holmes Jr.:
if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.
As a librarian, I often walk through the shelves and see books full of thoughts I disagree with. There are a few I find downright offensive. And I'm glad they're there. They tell me that as a librarian, I'm helping preserve intellectual freedom, including freedom for the thought I hate.
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