The First Amendment declares:
—, Constitution (U.S.)
This is our protection from the state for religion, speech, distributing speech, gathering, and demanding changes from the state when the state harms us.
This is what the First Amendment to our Constitution says. We interpreted it first by looking at the plain text of the amendment, as it was understood in 1791. While the 14th Amendment incorporated the entire Constitution as amended for all states, the meaning of the First Amendment is fixed to 1791.
The language of the 14th Amendment was fixed in the 1860s, when it was ratified.
Once we determine if the plain text of the Constitution is implicated, the state bears the burden of proving that the current regulation, law, or action is supported by this Nation’s historical traditions of regulations.
While an exact match is not required, the regulation must match the what, how, and why of our Nation’s traditional regulations.
The first thing we note is that it is a restriction on Congress, the government, not the people. The 14th Amendment means that it is also a restriction on all local and state governments. It does not apply to people or companies.
This means that your employer can create a rule that says you cannot post anything about the company. They might have a rule that says you are always a representative of the company and that you must show good moral character.
The First Amendment has nothing to do with any rules your employer makes. There might be other laws or regulations that apply, but not your First Amendment protected rights.
While the common vernacular is “Freedom of Speech”, this phrase does not appear in the Constitution. Instead, it commands the government to not create a state religion nor to stop people from practicing their religion.
One of the things that the left yells is, “No right is absolute!” This is true. We have other protected rights; we have the right to life, liberty, and the pursuit of happiness.
— U.S. Declaration of Independence
When there is a conflict between “life” and “religion,” the courts have found that the right to life supersedes the right to practice your religion as you wish. This is why we have freedom of religion, but human sacrifice is illegal. There are other crimes that are not protected by freedom of religion as well.
In general, the process is called “levels of scrutiny.” This is the process where the court first determines how much a regulation interferes with your protected right; based on that level, the court applies Strict, Intermediate, or Rational scrutiny.
Each level of scrutiny has a corresponding burden that the government must meet to justify that interference.
It is the same when we look at the freedom of speech, …abridging the freedom of speech…
. We look at the meaning of “abridged” in 1791 to understand. We look to regulations on people’s speech in 1791 to find what are and are not allowed abridgements of speech.
While the left uses, “You can’t shout fire in a crowded theater.” This is not true. It is a lie.
It was stated as part of dicta by Justice Oliver Wendell Holmes, Jr., in Schenck v. United States, 1919. He then spent much of his later career trying to reverse this horrible opinion.
We know it is a lie because you most certainly are allowed to shout “fire” if the theater is on fire. Or if there is a legal need to move people to an exit.
After Charlie was murdered, many people went on social media to express themselves. Some were grieving, and their pain came through. Others celebrated his death. Still others expressed their desire for others to be murdered, as Charlie was.
All of these statements are covered by the plain text of the First Amendment. As were the statements that a man cannot become a woman and that abortion is evil.
These are all examples of speech. They all fall within the plain text of the First Amendment.
We add one more example: people sharing these posts with others, including employers.
First, there are laws regulating speech. In particular, credible threats of violence are illegal. See 18 U.S.C. § 875 for example. §875 covers threats sent through interstate communications, such as X or Facebook.
But, people are being fired for what they said. Their speech is protected; that can’t be legal?
It is legal. You were allowed to speak freely when you said those vile, evil, disgusting things. You still have the freedom to speak as you whine about being fired. Your freedom of speech has not been abridged.
Here is the thing: we have the right to assemble peacefully. There is an ancillary right that has been put into case law, and that is the right to not assemble. In the same way that the state is forbidden from stopping you from associating with others, they can’t force you to associate with people.
Your employer has the right to not associate with you.
In addition, it is highly likely that your employment contract includes phrases that say you can’t harm the company’s reputation.
You might argue that this means that a company can fire somebody for being a “Nazi.”
You would be wrong. In general, you can’t be fired for your political beliefs. The left fought this battle and won.
While you can’t be fired for being a communist, you can be fired for disrupting the workplace. You can’t be fired for organizing; you can be fired for not showing up for work.
You can’t be fired for having conservative beliefs, and you can’t be fired because someone accuses you of being a Nazi or racist or a white supremacist.
So to all those whining leftists out there, upset that they were fired, you don’t have legal grounds to get your job back. Learn to code.
To also add to this, I had read something regarding the nurses and doctors.
Essentially, it was a couple of purported lawyers (I didn’t look into them, so they may or may not be real lawyers) talking about malpractice insurance that hospitals carry. They were talking about how some of the hard leftists that are nurses and doctors have posted on various social media that they don’t treat conservatives well, intentionally doing things to cause harm (like wiggling needles during blood draws, intentionally missing veins, would refuse to treat conservatives, etc).
Basically, they were saying that the hospital administrators were likely going to start firing the doctors and nurses that talked like that (and there have been recent examples of doctors and nurses getting fired), because it would make their malpractice insurance go up. Someone who happens to be conservative gets hurt, discovery brings something like this up, and the number of zeroes on the settlement goes up.
That is correct, and I have heard it said in similar fashion by lawyers I trust. Hospital admin are not going to keep on anyone who refuses to serve someone based on protected statuses (race, creed, etc). They are not going to keep on anyone who threatens harm, not because of insurance, but because it breaks the Hippocratic Oath, which every single one of them have agreed to in order to practice. They have promised to harm none (which is usually read as “least harm” because sometimes you harm people in the process of healing them, and that’s protected). When a doctor or nurse or other medical practitioner states they would provide less care or bad care for anyone (left, right, black, white, what the fuck ever), then they are going to get dumped immediately from their hospital because that’s just bad business. It takes one second for that shit to go viral, and then that hospital suddenly stops getting donations and goes out of existence. And they open themselves to a bunch of really crappy legal battles they are likely to lose, because there is no defense against causing purposeful harm in a medical setting.
“We know it is a lie because you most certainly are allowed to shout “fire” if the theater is on fire. Or if there is a legal need to move people to an exit.”
Subtle difference, but an important one. There is nothing prohibiting you from shouting out anything anywhere. However, when your choice of expression reasonably leads to harm, you cannot claim you have a right to free expression under the 1st amendment. If you yell “FIRE” in a crowded area, you would have to be an idiot to think panic would not ensue, so the test of reasonableness applies, and you lose your 1st Amendment protections.
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This distinction is important because it removes a lot of the excuses I am hearing from the fired/disciplined individuals. Going on line and saying something like “I am glad Charlie got shot, and here is a list of other targets…” is going to anger a LOT of people, and you would have to be an absolute moron (IQ= 50-74) to think otherwise. But.. when the repercussions of your action show up, suddenly you have a “right” to free speech? No, sorry… apply any test of reasonableness and your argument fails. You went out and decided to incite a riot, and you think you can hide behind the 1st?
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Final thought… I do not want the fired leftists coding. Search engines, AI, and well… pretty much the entire internet is steering everyone toward a leftist socialist utopia. Please do not learn to code. Learn to coal mine, learn to operate heavy equipment, learn to weld, learn to farm. We got too many leftist coders already.
Coal mining requires adherence to safe work practices for the good of your fellow miners. Heavy equipment operation likewise; misused, its dangerous. Welding also requires attention to detail as failed welds can lead to death of others. Farming is labor and time intensive; not attractive to many Progressives.
Let them do manual labor from sun up to sundown.
“Aviation in itself is not inherently dangerous. But to an even greater degree than the sea, it is terribly unforgiving of any carelessness, incapacity or neglect.” — Captain A. G. Lamplugh, British Aviation Insurance Group, London. c. early 1930’s
And also: “If at first you don’t succeed, skydiving probably is not for you.”
CBMT, Neil Smith captured your point concisely, in the words of his character Alexander Hope in the excellent novel “Hope” (by L. Neil Smith and Aaron Zelman).
“Chief Justice Oliver Wendell Holmes was wrong. You have an absolute and perfect right to shout “Fire!” in a crowded theater — and to accept responsibility for the consequences.”
Thanks!
That is an absolutely perfect summation of what I am trying to say. I am going to use that.
In general, the process is called “levels of scrutiny.” This is the process where the court first determines how much a regulation interferes with your protected right; based on that level, the court applies Strict, Intermediate, or Rational scrutiny.
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Not anymore. The Bruen decision did away with the “levels of scrutiny” as being “one step too many.” In practice, the courts found that a regulation interferes with a right, but then selected whatever “level of scrutiny” they could get away with to ensure the regulation stays on the books. “Strict scrutiny” was almost NEVER selected; very few infringing regulations would survive it.
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If a regulation interferes with a protected right, the State has the burden of proving that it’s consistent with the text, history, and tradition of regulations from the time of the Founding. No more “means-end” rationalization, no more “levels of scrutiny.”
I always get disgusted at so-called judges who speak of levels of “scrutiny”. The Constitution has absolutely zero support for any such notion.
If you look a bit, it’s clear that “strict scrutiny” is a synonym for “the state can infringe on the Constitution if it can whip up a pretty convincing argument” and “intermediate scrutiny” translates to “the state can infringe on the Constitution if it comes up with an excuse that’s not totally absurd”.
The only Constitutionally valid way to look at things is that “shall not be infringed” means precisely what those four words mean in plain ordinary English, which is not now, not ever, no matter what sort of excuse the offending party may throw together.
Unfortunately, you can only find a handful of politicians across all three (or more) branches of government, in the entire history of the USA, who take the Constitution seriously. Most (as Neil Smith observed so nicely) treat the Constitution as a collection of annoying rules to be circumvented, rather than as the Supreme Law of the Land as it actually is.