Tim Whyte | The First Amendment: Yes, It’s for Everyone

Tim Whyte

By Tim Whyte

Signal Editor 

Back in the 1990s and into the early 2000s, there was a movement, particularly among conservatives, to enact legislation — even a constitutional amendment — to prohibit the desecration of the U.S. flag. 

You know, things like burning the flag, or dropping it on the ground and stomping on it, as a form of protest. 

It’s easy to understand why that kind of thing would make you mad, especially if you love this country and all that the flag is supposed to stand for, and if you respect the sacrifices so many thousands have made fighting with that flag on their sleeves. 

But the conservatives were wrong. And, we said so. As The Signal editorialized at the time, our right to free speech also contains the inherent requirement that we tolerate the free speech of others — even that speech we find abhorrent. 

This newspaper was, then, and remains now, a proud practitioner of the rights bestowed on us by the First Amendment to the U.S. Constitution. 

And now, as I was then, I am amazed at how many people really don’t understand what that freedom means. Today, it seems like many people have added meanings to the First Amendment, like:

I have the right not to be offended. 

I have the right to dictate to others what speech is acceptable. 

If you use words that trigger my emotions you must stop. 

If you disagree with me, you’re a racist. 

None of these, of course, are contained in the Constitution. The First Amendment guarantees five freedoms and they apply to all of us equally:

Freedom of speech.

Freedom of the press. 

The right to assemble peacefully. 

Freedom of religion. 

The right to petition the government if you have a grievance. 

That’s it. There’s no right to not be offended. There’s no constitutional ban on hate speech. There is, last I checked, no addendum that says “unless you’re in the presence of people who disagree with you. Then, you have to shut the hell up.”

There are no exceptions, at least not in the amendment itself. But there are some practical ones, established by legal precedents, because it’s inevitable that sometimes one person’s rights will come into conflict with another’s.

Courts have held, for example, that the right to free speech isn’t absolute if it endangers others. Are you inciting violence? That can be a tough balls-and-strikes kind of call, but your speech rights are not absolute if you are encouraging violence. 

Then there’s the old “shouting fire in a crowded theater” example. If you shout “fire!” there better damn well be a fire, because otherwise you are needlessly endangering the lives of others.

Regardless, the First Amendment applies equally to all of us. You and I don’t have any greater First Amendment rights than a member of the KKK does. 

Do I find racist speech abhorrent? Of course. Is it unconstitutional? No. 

But an increasing number of people seem to be losing sight of the fact that the First Amendment applies to everyone else. There’s an evolving societal ethos that dictates one’s right to free speech should be subject to whether someone else takes offense to it. 

Case in point: the national kerfuffle this past week over the Kentucky Covington Catholic High School students who got themselves caught up in a vortex of protests at the Lincoln Memorial. In case you’ve been hiding under a rock, here’s the gist of the story: The students had been in Washington, D.C., to participate in the March for Life, an anti-abortion rally. Some wore hats with Trump’s slogan, “Make America Great Again.”

Because you can’t swing a dead cat in D.C. these days without hitting some kind of protest or rally, at the time there were several other groups in the area. (The government may be shut down, but Washington is still very busy.)

One of the groups, the extremist Black Hebrew Israelites, started heckling the boys with homophobic and racist slurs. The boys, in response, got permission from an adult chaperone to start yelling school spirit cheers, so they wouldn’t have to hear the Black Hebrew Israelites’ slurs while waiting for their bus. 

Then, Nathan Phillips, a 64-year-old U.S. Marine veteran and Native American activist, emerged from another nearby group. He was in town for the Indigenous People’s March. 

Phillips approached the boys, chanting and banging a drum. He turned his focus to one boy in particular, 16-year-old Nick Sandmann. As Phillips banged his drum, some of the other boys clapped along and mimicked his chants, and a few started doing the tomahawk chop — which is inappropriate and disrespectful, a fact that may or may not have escaped the boys. Right or wrong, you see it every weekend on one football broadcast or another, and these are 16-year-old kids. 

I don’t know about you, but I was an idiot when I was 16. 

Sandmann and Phillips stood face to face. Sandmann later said he was smiling, to de-escalate the situation, but in the screenshot that made the rounds on your Facebook news feed, he sure looked like he was smirking. A brief video clip of the moment went viral, and was initially portrayed by the media as a group of privileged white racist boys taunting a venerable Native American veteran. Such things are catnip for national media.

Except that’s not what really happened. 

Admittedly, some of those Catholic kids were no angels. But when additional videos emerged showing the boys had been taunted, and most of them were better behaved than most of the adults, much of the media was left moonwalking their way back out of the story. 

Still. I have many Facebook friends who wear those “I hate Trump” blinders and they apply that filter to EVERYTHING. They still say the kids were the ones who were the most out of line, and should have shut the hell up.

The kids

I’ve heard no one question the Black Hebrew Nationalists’ right to be there or to say those abhorrent things to the kids. That’s because it is their constitutional right. 

I’ve heard no one question Phillips’ right to be there, or to bang on his drum as he stared down a 16-year-old kid. That’s because it’s his constitutional right. 

However, I’ve heard many question the rights of those boys. It’s the kids, not the adults, who are subjected to relentless scrutiny, their MAGA hats cited as evidence that they were in the wrong. For wearing a hat? In a public place?

“It’s racist,” goes the new battle cry of the left. Game, set, match. 

Except that it’s not. While Trump clearly appeals to an awful, racist segment of society — just as the left appeals to some other awful, racist segments of society — Trump and his policies also appeal to a great many people who are not one bit racist. 

But what a convenient label it makes for anyone, of any age, wearing a red MAGA hat.  

Are some of those kids racists? Maybe. I don’t know them. A MAGA hat doesn’t prove whether they are, or not. 

Further, there has been no small amount of speculation over whether the boys chanted “build that wall!” — as if that, too, is some acid test to determine whether they were right or wrong. 

And what if they had? Isn’t that their First Amendment right, too? 

It was an incident that nearly escalated beyond speech, so it was right up against the limits of the First Amendment. But thankfully, it didn’t go there. We had three groups. Each exercising their First Amendment rights, assembling in a public space and expressing themselves. 

They were all entitled to do so. 

Even the kids in the MAGA hats. 

Tim Whyte is editor of The Signal. His column appears Sundays.  

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