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First Amendment doesn’t shield us from private infringements

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Gene Policinski
October 31, 2009

Every American is protected by the guarantees of the First Amendment, but protections for religious liberty and free expression apply only when government actions are involved—and therein is the rub for some of our fellow citizens.


—A former Home Depot employee raised freedom of religion as a defense last week after he was fired for wearing a “One nation under God” button on his company apron. The worker says he was just showing his love of God and country, and showing support for his brother, who is about to begin a second National Guard tour of duty in Afghanistan. But store officials say Home Depot has a policy that staffers may wear only company-provided pins and badges when they are on duty, and that the policy applies regardless of the words or meaning of a button or other emblem.


—Online retailer eBay said recently that it would block an auction planned to raise money to help pay legal-defense costs for the man charged with the killing earlier this year of a Kansas physician who performed abortions. One of the organizers of the auction said “the items that we’re thinking of marketing have historical value in the history of freedom of speech in the pro-life movement.” But eBay, according to news reports quoting a company statement, said the auction “would violate our policy regarding offensive material.” The company said it “does not allow listings that promote or glorify violence, hate, racial or religious intolerance.”


In both instances, the concept that as citizens we are free to express ourselves as we see fit runs smack into the legal reality that private employers, associations, Internet companies and such aren’t restrained by First Amendment protections regarding religion, speech, press, assembly or petition.


But about the same time that Home Depot and eBay were asserting their own rules on speech and expressive conduct, in New Jersey a federal judge ruled that state officials could not block “exit polling” at election sites merely out of concern that journalists and others talking to voters would disrupt voting.


Striking down a 100-foot “no contact” buffer zone, U.S. District Judge Peter G. Sheridan said, “There is simply no evidence that exit polling has ever led to disorderly conduct at polling places.”


Public officials, public schools and public agencies all must present such strong proof of significant public benefit or safety concerns before our First Amendment protections can legally be overridden.


It wasn’t always so. At first, First Amendment protections (along with the rest of the Bill of Rights) applied only to actions by the federal government. It wasn’t until 1925 that the U.S. Supreme Court held that free speech and free press were among the basic individual rights protected through the 14th Amendment’s due-process clause. Eventually the Court extended protection to all five First Amendment freedoms and to actions by state and local governments and officials.


There’s one high-tech twist that may come into play here one day. As online enterprises become ever more pervasive in our society, it’s possible that they could be considered someday as “quasi-government” operations, regulated much like telephone companies and electric utilities.


But for now, although the First Amendment protects your right to speak in the marketplace of ideas from government interference, it doesn’t automatically shelter what you want to say at work or on the Web.


Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

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