Mirsky: First Amendment Does Not Protect Violence

EXETER, NH — As an attorney and a God-fearing football-loving American, I feel the need right now to address just a small part of what has been going on in the past few days regarding violence in the streets over matters of race, religion, free speech, and freedom. Like all attorneys I went to law school and learned all you ever need to know about the First Amendment.

The law governing the First Amendment to the United States Constitution is fairly easy to learn, quite unlike the real difficult things you need to learn to pass the bar in New Hampshire, such as Article 4 of the Uniform Commercial Code. Please do not ask me about that!

But as I said, the First Amendment is pretty simple. Anyone who can read, can read it and understand it:

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.” U..S. Const. Amend. I.

I will limit my discussion here to the parts of the First Amendment that deal with “freedom of speech” and the right of the people peaceably to assemble[.]”

Please note, the First Amendment is a limit on the Government of the United States, preventing the government from enacting laws that, among other things, interfere with the free expression of ideas. That is what “freedom of speech” refers to. There is a long clear line of U.S. Supreme Court case law that states most emphatically that the right to freedom of speech does not include the right to engage in speech that is actually a form of violent conduct. The non-lawyering public knows these cases as representing the principle that “You can’t yell fire in a movie theater.” That is most certainly true. Do not ever do that.

And please also note, for your own self-interest if for no other reason, that the right of people to assemble, that is, to gather in large groups in public, to waive signs, make speeches and shout, that right is only a right of the people peaceably to assemble. See U.S. Const. Amend. I. There is no right under the U.S. Constitution for people to assemble violently. Your town, city, state, and federal government are completely empowered to stop violence.