Chick-fil-A and the First Amendment Myth Debunker
The link between Chick-fil-A and organizations opposing same-sex marriage has been known since January 2001. But it was only recently that Chick-fil-A President Dan Cathy made public statements opposing same-sex marriage. The comments ignited a firestorm of protests against the franchise’s perceived intolerance and homophobia, and last week conservatives were quick to respond, stating that it’s actually liberals who are being intolerant of Cathy’s right to express his religious beliefs.
Who knew that fast food could be so damn political?
Ignoring, for once, the merits of the debate, we have been taken aback by the seemingly endless stream of Facebook and Twitter posts claiming that Cathy and Chick-fil-A have a First Amendment right to say whatever they want about gay marriage.
Huh? They do? Not even close.
The First Amendment’s free speech provisions are not some universal protection of all speech, all the time. Despite the fact that indignant invocations of “my free speech rights!” have become a media cliché, the First Amendment protects only a fraction of a person’s statements or publications. So, as attorneys and entrenched members of the liberal elite, we have decided to set the record straight on some of the most common Constitutional misperceptions that we frequently see kicked around in pop culture and social media.
A disclaimer: this column is not intended to condescend or otherwise judge those have fallen into one of these traps. To be fair, we didn’t know most of this stuff either until we went to law school. And while a number of the mistakes we discuss are highlighted most prominently by the Tea Party (those relentlessly public “defenders” and “proponents” of the Constitution, with the unfortunate caveat of being wrong about essentially everything they say about it, ever, no matter what), these misconceptions transcend party lines. So, for anyone who’s ever invoked their constitutional right to vomit on their boss at the firm holiday party, read on: it’s time for the truth, Kenny Powers style.
II. Myth #1: Whatever, I’ll do what I want!
In relevant part, the First Amendment states that “Congress shall pass no law . . . abridging the freedom of speech.” That’s it and that’s all. Doesn’t discuss the lamestream media, or Obamacare, or cutting spending, or loudly cursing in a family establishment: it prohibits actions taken by Congress to restrict speech.
Although the text only mentions actual federal laws, subsequent court cases have broadened the First Amendment’s scope by applying it both to laws passed by both state and local governments and to government-controlled activities such as employment policies and speech in public schools and government workplaces. But the bottom line is that the First Amendment only prevents governments and governmental entities from suppressing speech, and even then, the right is not absolute. For example, the Supreme Court has held that public schools can punish students who engage in vulgar or obscene speech or promote drug use. Similarly, a government employee’s speech is not protected if it relates to his or her official employment duties. Moreover, the First Amendment does not protect a person’s right to speak wherever he or she wants: rather, the government may place restrictions on speech in physical locations that are not traditionally used for expressive activities and have not been opened in a substantial way for expressive activities (such as military bases and prisons).
What raises ire about the general misappropriation of the First Amendment is that historically, it has protected the right for people to courageously express unpopular minority viewpoints. It paved the way for protests against the Vietnam War, shielded the NAACP at the height of the civil rights movement, aided parents in the fight against compelled speech in the public schools, and (we would say most importantly) allowed Hustler magazine to publish an advertisement suggesting that Jerry Falwell lost his virginity to his mother in an outhouse (read the ad, it’s amazing). The First Amendment is something that most Americans take for granted, but that affords us an unparalleled ability to engage in the public discourse and to fight against government coercion or corruption.
Nowadays, though, one hears mention of the First Amendment primarily in two contexts. The first is from people who claim that they have the right to tell their bosses exactly what they think of them without getting fired. This is misguided but ultimately harmless. The second, and far more problematic, context is the one in which right-wingers invoke the First Amendment as some nebulous buttress to whatever talking point they’re trying to push. Perhaps the most absurd examples come from America’s most reprehensible constitutional scholar, Sarah Palin. In her capacity as unofficial Tea Party spokesman, Palin has gone on record as saying that the First Amendment prohibits the media from critiquing her (or Rush Limbaugh) and that radio show hosts have First Amendment protections against criticism for using racial slurs on the air. Did she weigh in on Chick-fil-A debate? Of course she did. She said that those who boycott the restaurant are unconstitutionally chilling free speech.
From a legal perspective, these ignorant statements are obviously incorrect: critiques from the news media and an individual’s decision where to shop or what radio programs to listen to obviously have nothing to do with a state-sponsored suppression of speech. What’s worse, Palin’s mere suggestion to the contrary is anathema to the entire purpose of the First Amendment: the press’s freedom to question political figures and the ability for individuals to affect social change are at the very heart of free speech. A robust media and individuals choosing not to support intolerant businesses or radio shows are precisely the means by which Americans can inform themselves of current events and make conscientious decisions about the message they wish to send. By Palin’s logic, though, the media’s job is to just shut up, and participants in the 1963 Birmingham campaign boycotts infringed upon store owners’ right to discriminate against blacks. Such willfully misinformed suggestions cheapen legacies of those who have used the First Amendment in their struggle for social justice.
So, the next time someone tells you they’ve got a First Amendment right to curse out their landlord, direct that person to this column. The next time you hear some conservative yammering about how protesting intolerance violates the First Amendment, just turn off the TV.
III. Myth #2: Obama Cain’t Force Me to be no Muslim!
Another commonly misapplied constitutional doctrine is also found in the First Amendment: the Free Exercise clause. This provision, which states that Congress cannot pass any law “prohibiting the free exercise” of religion, is the go-to invocation for America’s most persecuted minority group: the Christian right! These folks waive the flag of Free Exercise whenever the government takes any action with which they disagree politically and which can be tied in any possible way to religion. Whether it’s Catholics howling about the Affordable Care Act’s requirement that private insurance plans (including those sponsored by most religiously affiliated employers) provide contraceptives to women without co-payments, creationists claiming that they have the right to teach intelligent design in public schools, or Orly Taitz arguing that the Affordable Care Act forces Christians and Jews to become Muslims (yes, that’s actually what she says), the Free Exercise clause has been hijacked by political operatives who have dumbed down the provision into a sound bite: “[insert progressive cause here] violates my freedom of religion!”
Predictably, this is far from how the law actually works. Modern Free Exercise jurisprudence stems from Employment Division v. Smith, a 1990 Supreme Court case in which two members of the Native American Church, who were fired from state employment for ingesting peyote in a religious ceremony, argued that the Oregon prohibition on peyote use violated the Free Exercise clause. Rejecting these claims, the Court held that neutral laws of general applicability that had some prohibitive effect on religiously motivated conduct do not violate the Free Exercise Clause. Basically, this means that laws that apply across the board, and are not targeted towards suppressing a particular religious practice, are valid. For example, if you believe that your religion requires you to sell drugs to children, it doesn’t violate the First Amendment when the government prevents everyone from doing so. The Court reasoned that by making “an individual’s obligation to obey . . . a law contingent upon the law’s coincidence with his religious beliefs . . . permitting him, by virtue of his beliefs, ‘to become a law unto himself, ’ contradicts both constitutional tradition and common sense.”
In response to Smith, Congress passed a law called the Religious Freedom Restoration Act (RFRA), which states that any law that substantially burdens religion is invalid unless it is the least restrictive means of furthering a compelling governmental interest, a constitutional test known as “strict scrutiny.” However, the Supreme Court later struck down the law as applied to states, although leaving it intact at the federal level. So, with the dust cleared, general state and local laws of neutral applicability that inhibit religious practice are still valid, while the federal government must comparatively prove that substantial religious burdens are narrowly tailored and further a compelling governmental interest.
It is true that at least at the federal level, which is the source of most recent political vitriol, the government has a comparatively high burden of proof in religious freedom cases. But what’s lost in the right’s hysterical cries of free exercise is the fact that the clause is intended to prohibit targeted, purposeful discrimination against religious belief, and is not just a convenient way to inhibit socially conscious legislation. In a leading case, a group of Santeria practitioners sought to open a church in the city of Hialeah, Florida, in which they would practice animal sacrifice as part of their religious rituals. The Hialeah City Council held a meeting where numerous local leaders described Santeria as ungodly, demonic, and sinful, and argued that it was their biblical duty to shut the church down. The city then passed a law that forbade animals from being ritually killed in the city . . . and then exempted basically every religion except Santeria (the Supreme Court struck the law on Free Exercise grounds). This is the type of government-sponsored religious persecution that the Free Exercise clause was designed to prevent.
This is not intended to minimize the legitimacy of individual belief; for example, many Catholics may truly believe that the Affordable Care Act’s contraception requirements are an affront to their religious practices. Rather, our ultimate point is that the Free Exercise clause should not be casually employed as a façade of outrage whenever the opposing political party passes a law that you don’t like. Instead, it protects Jehovah’s Witnesses, Seventh Day Adventists, the Amish, practitioners of Santeria: minority groups who have faced legitimate persecution or discrimination by an American majority that finds their religious beliefs foreign or evil.
Rick Perry’s not afraid to admit that he’s a Christian. But despite the right’s (completely bogus) fear-mongering to the contrary, no one’s going to terrorize him based on his Christian beliefs. The same cannot be said for the practitioners of many minority religions throughout American history; and that is the true importance of Free Exercise.
IV. Myth #3: “They Can’t Fire Me Because . . .” Yes, They Can (Join a Union)
Imagine the following scenario: you’ve worked at the same place for 20 years. Employee of the Month 240 months running. Never taken a sick day. Five minutes early for every shift. Business is booming, and your boss tells you they could afford to hire four new people, but there’s no need because you do the work of all them. One day, your boss approaches and asks you if you’ve seen The Dark Knight Rises. Diligent employee that you are, you say your break starts in five minutes, can you discuss it then? You tell your boss that you thought the movie was good, but didn’t like it quite as much the second one. Your boss becomes irate. “Are you kidding me? That was the greatest movie ever made! Pack up your things, you’re through here!”
Outrageous? Yes. Unjust? Absolutely. Illegal? Almost certainly not.
Other than a couple brief post-election day stints as a delivery boy and video store clerk, your author Anthony has spent his entire adult working life working for the labor movement. Over that time, he has developed a theory that one reason public esteem for unions is declining is that people think they have more rights in the workplace without a union than they actually do. While unions have been successful in winning certain minimum labor standards that apply to all workers, such as a minimum wage and 40-hour workweek, the majority of employment in the United States remains “at-will,” meaning the employment relationship can be terminated at any time for almost any reason, or for no reason at all.
In a series of cases, the Supreme Court recognized that most public employees have a constitutionally protected “property interest” in their job. This means that under the Due Process clauses of the Fifth and Fourteenth Amendments, public employees cannot be fired without cause or without a fair hearing. Because these amendments, like the First Amendment, apply only to actions taken by the federal, state, or local government, these cases have no application to private sector employees. Private sector employees are at-will unless they are covered by a contract that says otherwise. Some employees have individual contracts requiring that they remain employed for a certain period of time unless the employer has good cause to fire them, while nearly all private sector union members are covered by collective bargaining agreements providing that they can only be fired or otherwise disciplined for “just cause.”
There are limitations to at-will employment. Federal anti-discrimination laws limit an employer’s right to fire employees based on race, gender, religion, national origin, disability, or old age, while some states and municipalities forbid discrimination based on sexual orientation. (Important note: because the Equal Protection Clause of the Fourteenth Amendment, like the Due Process Clause, applies only to actions by the state, private sector anti-discrimination laws are purely creations of the legislature and are not guaranteed by the Constitution. Elect enough Rand Pauls, and we could be back to pure at-will employment.) Various whistleblower protection laws forbid firing employees for reporting illegal activities by their employer. The National Labor Relations Act forbids firing employees for taking collective action in pursuit of better wages and working conditions. Some state courts recognize further limitations to at-will employment, such as implied employment contracts (i.e. you can ’t be fired without reason if there is evidence of a mutual understanding that your employment would continue unless good cause existed to end it) or prohibitions against firings that would violate some state law or policy. But, outside of these specific prohibitions, the rule for most employees remains that they can be fired for any reason—however asinine or unfair—or for no reason at all.
V. Myth #4: You Have the Right to . . . Well, It’s Complicated
Because arrests are a frequent plot point in movies and on TV, “Miranda rights” are one of the most familiar areas of Constitutional law. The basic gist of Miranda rights—that an arresting officer must read a suspect his “rights” (you know the drill: “You have the right to remain silent, everything you say can and will be used against you in a court of law . . .”) and that failure to do so could result in statements made by the suspect being inadmissible in court—is as you’d suspect. But—surprise, surprise—things are a little more complicated in real life than on the screen. Miranda rights do not apply to all questioning by police nor to all statements made in police custody. They only apply when both factors are present: the Miranda rule only protects statements made A) while in police custody (for example, traffic stops or “stop and frisks” are not considered police custody); and B) in response to police interrogation. This second requirement is likely the more surprising: if an arrested suspect gives a statement voluntarily, or even in response to police statements that are not considered “reasonably likely to elicit an incriminating response,” the suspect’s statement is admissible regardless of whether he has been informed of his rights. This was something your author Sam learned firsthand the time that . . . let’s just move on.
The Miranda rule is also not quite as rigid as it is often portrayed. Police can question a detained suspect without informing him of his rights and without affecting the admissibility of any statements when a public safety reason—such as trying to locate a weapon—justifies doing so. Further, if a defendant gives testimony that contradicts earlier statements made to police, those statements are admissible for purposes of impeachment even if they were obtained in violation of Miranda.
Important to note here is that the limitations on the Miranda rule do not affect a suspect’s “right to remain silent” but rather only the circumstances in which waiving that right results in statements that are admissible in court. The Fifth Amendment’s right against self-incrimination applies regardless of whether one is in custody; in Miranda, the Court recognized that being in police custody is so inherently coercive that the right against self-incrimination must be given special protection in that context such that it cannot be waived unless the person is first made explicitly aware of his or her rights.
What the Court has often failed to appreciate in cases refining the Miranda rule, however, is the degree to which all interactions with the police are coercive. A person who is not in police custody wishes to continue not being in police custody, a determination that is entirely in the hands of the police. Knowing all the inconveniences that the police can cause, a free and innocent person is unlikely to exercise his or her “right to remain silent.” Accordingly, recognizing the inferences that can be drawn from silence, a free but guilty person may often consider himself better off trying to talk his way out of a situation than resting on his “right to remain silent.”
Florida v. Bostick is an illustrative example. While not a Miranda case, Bostick demonstrates the fiction that courts have created about an individual’s “freedom” not to cooperate with the police. In Bostick, two uniformed officers boarded a Greyhound bus while displaying their weapons and badges. They approached the passenger and began questioning him, eventually asking whether they could search his bag; one of the officers obstructed the aisle leading to the exit of the bus. The passenger allowed the search and the officers found cocaine in his bag. At trial, the passenger tried to suppress the cocaine, claiming that he had been “seized” by the officers without probable cause and that the search of his bag was therefore a violation of his Fourth Amendment rights. The Supreme Court rejected this claim, finding that a reasonable person in the passenger’s position would have felt “at liberty to ignore the police presence and go about his business.” In dissent, Justice Thurgood Marshall expressed disbelief that the majority could find a person in the passenger’s position—trapped on a bus, hundreds of miles from home—would feel he had a “choice” to simply ignore the police or exit the bus.
In short, Miranda rights are narrower than they are often portrayed on television, applying only to the specific context of custodial interrogation. In all other contexts, the courts provide little assistance to individuals in standing on their rights against police intrusion, regardless of how difficult these rights may be to assert as a practical matter.
The nuances of constitutional law can be extremely blurry at the edges, which is why the Supreme Court is continually asked to clarify the details. These questions are difficult and fact-specific, and there is nothing shameful or embarrassing about a lay person, or even a lawyer, from getting confused about the actual scope of his or her rights.
But because much of society’s legal “knowledge” comes from movies, TV shows, or (worst of all) political talking points, we run a serious risk of deliberately being misinformed by those with an agenda and a podium. While fictional depictions of arrests or courtroom dramas are one thing, there is a very real and very entrenched problem with political actors hijacking the Constitution in a legally unsound attempt to undermine their opposition. When people like Sarah Palin casually invoke the First Amendment whenever they say something controversial, or politicians bash unionized employees as antiquated historical relics, they ignore the real hardship and struggles through which Americans obtained the ability to speak and worship without fear of reprisal and to enjoy dignity and respect in the workplace. Taking a moment to appreciate these constitutional protections, and to attempt to understand them in context, is an exercise of civic virtue in and of itself.