The First Amendment and Blogging

I note that many people don’t actually read documents they cite. So here’s the First Amendment:

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.

This is not the same thing as saying that anyone has an unrestricted right (or any right at all, for that matter) to comment on someone’s else’s blog, or that declining to post comments infringes on someone’s First Amendment Rights. Indeed, those folks wanting to express themselves can do so through establishing their own blogs, so their freedom of expression remains unimpaired by whatever happens on an individual blog.

It is always amusing to see that the people who make this mistake claim they understand the Constitution. They don’t. I doubt they’ve even read it, but it’s clear that they don’t understand it.

In the past a person critical of this blog has claimed that my belief that a certain Virginia Flagger should be able to express her opinion freely in public without suffering retaliation from her employer displays a misunderstanding of the First Amendment … but I did not invoke the amendment. I note that the Flaggers are silent on whether to support this person’s right to express her opinion publicly without fear of retaliation, while I have supported her in this matter. What that says about the Virginia Flaggers I leave up to you to decide.


3 thoughts on “The First Amendment and Blogging

  1. M.D. Blough October 22, 2013 / 1:21 pm

    The biggest misunderstanding of the First Amendment is a failure to read or, if read, comprehend, the first four words in the amendment, “CONGRESS SHALL MAKE NO LAW. . .” The amendment only constrains the government, particularly, but hardly limited to, the area of prior restraint of allegedly dangerous speech. Until the ratification of the 14th Amendment and the development of the doctrine of incorporation, the First Amendment only applied to the federal government, not the states.

    Even where the First Amendment applies,not only does it not mean that someone can saw whatever they want and not be attacked or contradicted, the Amendment means the absolute opposite. As Justice Oliver Wendell Holmes, Jr. said in his enormously influential dissent (which latter became very much the majority view) in Abrams v. US 250 U.S. 616 (1919) “The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” (often referred to in a shorthand expression as the free marketplace of ideas)

    First Amendment case law is quite complex.

  2. Brad October 22, 2013 / 1:34 pm

    What they fail to realize is that to run afoul of the First Amendment, it has to be government action in carrying out one of the proscribed matters, not private action. Private property may proscribe free speech. For example, years ago (maybe the 1970s or 80s, I don’t quite remember), a shopping mall forbade some group from picketing or carrying out some other activity which had it been a governmental entity would have run afoul of the First Amendment. The Supreme Court ultimately ruled that the owners of private property had the right to regulate the use of their property as they see fit. Similarly blog owners may restrict access to their blog as they see fit and so forth.

  3. Michael Confoy October 22, 2013 / 7:24 pm

    Actually you have no right to even blog here on WordPress if they so desire to stop you as long as it is not violating your protected civil rights. The only certain way you have a right to blog is to pay for an Internet connection that lets you host a web server where you can then blog away. No company has to let you exercise speech unless you have a paid contract with them to exercise said speech.

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