The First Amendment declares:
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.
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Marbury V. Madison, 5 U.S. 137 (1803)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.
