The First and Fourteenth Amendment

Without freedom of speech and equal protection, our country would be drastically different. There are two essential things to remember about the First Amendment protection of free speech. The main reason we have freedom of speech is to allow for public criticism of the government. Secondly, it important to remember is that the First Amendment protects us from the government doing things that try to refuse your freedom of speech, but not anyone else. What this means is that we don’t have an absolute right to say whatever we want, wherever we want, to whomever we want and not suffer any consequences.

The speech that gets the most protection is political speech.

Criticism of, but also praise for government officials, their parties, or their policies is usually protected. It is given what is called preferred position, which means that any law or regulation or executive act that limits political speech is almost always struck down by courts. One big case that made the final decision on political speech was Brandenburg v. Ohio in 1968. In this case, a Ku Klux Klan leader was making a speech that, as you might imagine, was extremely offensive and threatening to a lot of people. The Supreme Court ruled that because the speech was political, it was protected by the First Amendment, no matter how ridiculous it was. The court said, “The Constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent action and is likely to produce such action.” (www.law.cornell.edu/supremecourt/text/395/444)

Per the court, the First Amendment protects speech even if it advocates the use of force or encourages people to violate the law. Now, let’s look at an Amendment outside of the Bill of Rights. I think that the Fourteenth Amendment is arguably the most essential parts of the Constitution. Civil Rights protections stem from the “equal protection” clause in the Fourteenth Amendment, which reads: “No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.” This may seem obvious, and in some of the watershed cases like Brown v. Board of Education, however, unequal treatment of specific groups is usually done by private citizens or institutions – like one’s landlord or employer. Brown v. Board of Education is considered a landmark Civil Rights case. It showed the country that our federal government has the ability to intervene in something as local as public education when racial discrimination was involved, and, more so, it showed that states couldn’t use race as a factor for setting up public schools. It was the legal basis of what we know as the American civil rights movement, and provided the foundation for the federal civil rights legislation of the 1960s. (http://www.uscourts.gov/educational-resources/educational-activities/history-brown-v-board-education-re-enactment)

The Supreme Court initially understood the clause to apply only to the state government, not to private discrimination. In the Civil Rights Cases, the Supreme Court ruled that the law, “could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political equality,” and they assured that if the state provided equal accommodations for people of different races, segregation was fine (https://www.law.cornell.edu/supremecourt/text/163/537). The case of Plessey v. Ferguson formulated this well known “separate but equal”. The distinction between political and social equality is an important one, which provides a principle for looking at discrimination that the courts still use today.

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