The First Amendment and You

by Chris Markham. 0 Comments

When I took constitutional Law in law school, I was excited. Finally, I would learn the ins and outs of the most famous constitutional battles in history – all surrounding the issue of free speech (because really, what do we Americans usually associate with the United States Constitution? Not voting rights or separation of powers or checks and balances; but free speech – the First Amendment!). And maybe abortion – that’s a big one, too. But that’s a column for another day.
For thirty weeks, I waited and waited for some sort of First Amendment battle. I excitedly anticipated Scalia’s opinion. I wanted to see cases where the government over-extended its authority and told regular folk like you and I to shut the hell up or face the consequences. I wanted to see the arguments, the rationale and the emotion.
We never got there. Rather, we spent a majority of our time in class reviewing the Interstate Commerce Clause, the Dormant Commerce Clause and penumbra rights guaranteed by various amendments to the Constitution. While the aforesaid information was important (and more relevant to how this country is governed), I was a bit let down.
But what I can tell you is that the First Amendment only applies to government action that serves to quell free speech by its citizens. Your private employer tells you to stop talking, you stop talking. Your neighbor tells you to shut up and he or she is well within their rights to do so. A restaurant tells you to pipe down or leave? You do one or the other. Not all occasions of speech in this country is governed by the Constitution.
Recently, there appears to be an attempt to merge violations of the freedom of religion and freedom of speech. It seems as though the Mayor of Houston, Texas wants all preachers, Pastors, priests, etc., to send her copies of their sermons before they are delivered to the faithful. It appears as though she would like to review the homilies before they’re delivered to ensure that there are no offending issues or philosophies present. Problem is, how is she the arbiter or what’s offensive?
I don’t care if you’re a conservative, a liberal, straight or homosexual, Republican or Democrat, religious or atheist. This type of government request is completely out-of-bounds for a number of different reasons.
First, it violates the Establishment Clause of the Constitution. This is where you find the freedom of religion component to our government. In essence, this clause states that any governmental entity must not cause any action to promote or restrain religious worship in this country. It’s one of the bedrocks of our culture and our country.
Second, the Mayoral Office of Houston is a government entity. Therefore, the First Amendment of the Constitution applies. If any governmental entity attempts to regulate, censor or chill free speech, it better have a darn good reason to do so. As such, if someone decides to sue the Mayor, the test that would be used is called “strict scrutiny.” As long time readers of this column may remember (I’m talking to you, Brenda), strict scrutiny as defined by Wikipedia is:
“(Government action) must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, though the Court generally evaluates it separately.
That said, there would appear to be no possible reason for the Mayor of Houston to make this request. It seems as though the Mayor is looking to make some sort of political correctness a legal standard in her jurisdiction, and that cannot, and should not, withstand judicial examination.


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