For a country that purports to value our First Amendment right to freedom of speech, it has become clear that some of our elected officials don’t understand it.
State legislatures across the country have passed bill after bill that violate the First Amendment’s free expression protections — protections that limit the government’s ability to infringe on individuals’ speech.
Yet a recent survey of more than 3,000 Americans found that 94% value the First Amendment as vital, and more than half say that it should never be changed.
Now more than ever, we need a renewed focus on civic education to ensure Americans understand their constitutional rights. In particular, one study suggests nearly 1 in 5 Americans cannot name a single freedom listed in the First Amendment.
Still, elected officials are regularly quoted in the media, espousing plans to require social media platforms to carry certain speech or barring them from shutting down certain accounts. Ask honest constitutional scholars, and they’ll assure you these plans are unconstitutional.
This summer, a federal judge in Florida temporarily barred the state from enforcing a new law that targeted social media platforms that shut down accounts of political candidates or “journalistic enterprises,” allowing up to $250,000 in fines per day.
Texas Gov. Greg Abbott has signed several similarly unconstitutional bills. One, HB 20, purports to prohibit social media platforms from engaging in content moderation. Another, SB 4, aims to require Texas sports teams to play the national anthem.
The Arizona Legislature has repeatedly considered a law that would require parents to opt in to any curriculum that addresses gender identity, gender expression of sexuality — effectively limiting schools’ ability to teach about historical events including the Stonewall riots. It also restricted the teaching of HIV and AIDS awareness.
Doing so represents a clear violation of the First Amendment, which is one reason Gov. Doug Ducey — a Republican — vetoed SB 1456. Yet lawmakers persisted, reintroducing the measure.
So why are all these lawmakers, many of whom graduated from elite law schools, proposing laws that contravene the First Amendment? Perhaps it’s political theater. Or perhaps they simply need a bit of civics education.
Like our elected officials, it seems even we voters need a refresher course on these issues. Only 36% of Americans know that social media companies are not liable for the content users post on their platforms, while just over half of respondents knew the First Amendment protected flag burning as a form of free speech.
In numerous opinions during the past century, the Supreme Court has made clear that there are stringent limits placed upon the government when it comes to regulating speech.
As recently as June, the court ruled 8-1 in favor of a high school student who was sanctioned by her school for a social media post that contained a well-known, four-letter expletive. Although the court stopped short of saying public school officials could never sanction students for off-campus speech, it made clear that some speech is protected by the First Amendment.
In November, the Supreme Court will hear a case asserting that the City of Austin exceeded its authority to regulate speech when it enacted an ordinance that treats on-premises signage differently from off-premises signage.
Without a greater emphasis on civic education, and First Amendment rights in particular, many of us will continue to lack the knowledge and tools we need to fully participate in our governance, and taxpayers will continue to foot the bill for legal challenges to state laws that are plainly unconstitutional — laws that should never have been proposed or passed in the first place.
Our nation’s first president, George Washington, famously said, “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” Free Speech Week offers a great reminder that many of us need to reeducate ourselves about the collective rights and obligations that we have as citizens living under a republican form of government.
Amy Kristin Sanders is an associate professor of journalism and law at The University of Texas at Austin, where she studies global free expression rights.
A version of this op-ed appeared in USA Today and the Austin American-Statesman.
