Editor’s Note: This is part of a series examining the Constitution and Federalist documents in America today.
Click on HERE to read the series.
Since the state of Florida disbanded the Reedy Creek Improvement District, in part in response to Disney’s opposition to legislation banning teachers from talking about sex and gender with kindergartners, there has been a constant drumbeat from those who argue that Disney’s freedom of speech has been violated.
These claims are as spurious as those on the right who claim their freedom of speech was violated because Twitter banned them.
Let’s see what, exactly, citizens are guaranteed by the Constitution and why it matters.
The first amendment is pretty clear. Here it is in full: “Congress shall make no law respecting the establishment of a religion or prohibiting the free exercise; or restricting freedom of speech or of the press; or the right of the people to assemble peacefully and seek redress from the government for their grievances.
That’s it. The amendment only addresses government actions that restrict free speech, not societal actions or the actions of other individuals.
In Citizens United v. FEC, the Supreme Court made clear that these protections also extended to corporations: “The First Amendment does not permit restrictions on political expression based on a speaker’s corporate identity. In other words, corporations have the same free speech rights as all Americans.
Again, that’s it. He is not saying that a state government cannot dissolve special jurisdictions or that the governor cannot be irritated by a company and look for ways to persuade them of the error of their ways.
The First Amendment does not protect anyone from the vagaries of the political or social systems in which they reside. It merely prevents state and federal legislatures from abbreviating or preventing speech. The consequences of their speech still adhere to the speakers.
The First Amendment is not the only defense of free speech in the Constitution. The principal author of the Constitution, James Madison, believed that the mechanics of the Constitution itself provided sufficient protection for civil liberty, and he was (correctly, as history has confirmed) concerned with an enumeration of rights – like the Bill of Rights – would eventually evolve into limits on rights.
Madison was a strong advocate of free speech and the absolute necessity of public debate and saw clearly that no law could better bind a free society than their own sensibilities and tolerances. In December 1791 he wrote: “Public opinion fixes limits to all government, and is the true sovereign of all free government. It is the people, and only the people, who govern. For this rule to be wise and fully informed, people must be able to communicate with each other away from the tentacles of a greedy government.
The Constitution assumes, a priori, a literate, engaged and free public to participate in the development of public policies and laws and in the creation of the underlying opinions and beliefs that form the basis of these laws. It is, to borrow from John Adams, totally unsuited to any other sort of person.
This communication, because it deals with the most significant and essential issues of the day, will always be controversial. Therefore, it is incumbent upon all citizens to be as tolerant as possible of alternative viewpoints, and where such tolerance is not possible, those with less popular viewpoints must be brave enough and sufficiently durable to withstand harsh criticism.
At all times, it is important for everyone to remember that freedom of expression is a gift from God and a natural consequence of the dignity and worth of all. Moreover, it is an essential practical element in a society not ruled by monarchs. If people cannot participate peacefully in the decision-making processes of society, they will end up resorting to violence.
In short, the alternative to freedom of expression is not silence. The alternative is violence.
In many ways, the great generational challenge we face – reclaiming and reaffirming the essential nature of our institutions, perhaps chief among them the Constitution – depends on our ability to protect and value freedom of expression while understanding that governments have limits, both positive and negative.
Which brings us back to Disney. Disney’s First Amendment rights have not been compromised by the Florida government. Nor have the First Amendment rights of those who have been banned from Twitter or Facebook or been attacked by an unruly online mob been restricted by Congress or any other jurisdiction in the United States.
The First Amendment does not guarantee you a spot on the evening news. It only ensures that Congress (and, through the 14th Amendment, the states) cannot pass a law restricting your free speech. Everything else is up to your audience.
• Michael McKenna is a former Deputy Assistant to the President.