"A First Amendment Issue" vs. "Absolutely Protected By The First Amendment" — A Common Free Speech Misunderstanding

In the last few years I've noticed a fundamental misunderstanding in how we talk about First Amendment law, particularly when wonks like me talk to normal people. The misunderstanding involves what it means for something to be a "First Amendment issue" or "governed by the First Amendment" or even "protected by the First Amendment."

Take, as the latest example, deeply silly and annoying Fresno State loudmouth Randa Jarrar. It's unequivocally clear: whether or not Fresno State can fire her is governed by the First Amendment. Put another way, it's a First Amendment issue, or her speech is protected by the First Amendment. You may not like it or agree, but that's the law.

But perhaps when I say those things, I'm not being clear about what I mean. People seem to take it as if I am saying "Randa Jarrar's speech is absolutely protected by the First Amendment and she can't be disciplined, case closed." But I'm not. I'm saying that the First Amendment is the source of the legal standard that governs whether she can be fired — that the Supreme Court has articulated a specific multi-step analysis to determine whether a state employer can fire a state employee for speech. If I mean to say "I've done the requisite First Amendment analysis and it's clear that under that process the end result is that her speech is absolutely protected," then I should say so clearly. Maybe I don't always.

Defamation cases are another good example. Nearly every time I say that the First Amendment applies to evaluating a defamation claim, people say "but defamation isn't protected by the First Amendment." This again confuses process and results. What I'm saying — and maybe I should say more clearly — is that established First Amendment caselaw shows us how to tell whether or not a statement is potentially defamatory (not protected by the First Amendment) or absolutely protected like pure opinion.

First Amendment wonks like me could make public dialogue more productive by being clear about this distinction, I suppose. The best analogy I can give is this. When I say "whether this person can be punished by this speech is a First Amendment issue/governed by the First Amendment," it's like I'm saying "whether this defendant is guilty is a question for the jury." I'm not saying the person will necessarily be found not guilty. I'm saying there's an established constitutional process. This isn't Nam, there are rules.

So: I'll try to be clearer when I'm saying "the end result is that the First Amendment protects this speech so it can't be punished" versus "the First Amendment provides the rules to determine whether this speech can be punished."

As you were.

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