A Writer's Guide to the First Amendment: Private Entities Need Not Apply

The First Amendment does not apply to private individuals or entities.* This means that it does not prohibit A&E from suspending Phil Robinson of Duck Dynasty based on his comments that homosexuality is a sin. It also doesn’t prescribe how commercial businesses celebrate Christmas in their store displays and the music they play in the background. The private entity’s own beliefs or its concerns about public relations—or sometimes a contract—may govern how it treats these issues, but it isn’t bound by the First Amendment.

That’s because the amendment begins with “Congress shall make no law . . . .” It only applies to the federal government.

But wait, you say, what about states and cities and public schools? Doesn’t it cover them, too?

Technically, no. Practically, yes. It’s a convoluted path that begins with the 14^th Amendment, which says in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

A long line of U.S. Supreme Court cases, beginning in 1925 with Gitlow v. New York, have assumed that the First Amendment is incorporated into the 14^th Amendment’s due process clause. In other words, conduct which violates the First Amendment (when done by Congress) also violates the 14^th Amendment (when done by a state or local governmental body). So even though conduct by a state or local government is technically governed by the 14^th Amendment, it’s just easier to talk about it as a violation of the First Amendment.

If a public library bans your book because of the subject matter or the position it takes on a particular issue, you may have an argument under the First Amendment as incorporated into the 14^th. If a private bookstore refuses to carry the book for the same reason, you don’t.

But you may not be able to force the library to stock it, either. Although a public library is a governmental entity, it may have a perfectly valid reason to refuse to place the book on its shelves. Freedom of speech is not an unqualified right, as we will see in future posts.  

Next week we’ll start exploring those qualifications by looking at where speech is—or is not—free.

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*There are two exceptions: (1) when private individuals or entities engage in uniquely governmental functions, and (2) when government is heavily involved in the conduct of a private individual or entity. The details of these exceptions are beyond the scope of this post.

 

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.