The work of the January 6 committee serves as a masterclass on the power, potency, and purpose of the First Amendment: to subject all ideas, bad and good, to review and debate as an exercise in discovering the truth. But as some of us watch the televised hearings, we might wonder if the First Amendment is up to the task in this new hyper-communicative world where ideas, true or false, are distributed to vast audiences at speeds never contemplated by the drafters of our Constitution or the Bill of Rights.

As the 1/6 committee is making painfully apparent, there is a through-line from the stop-the-steal lies to the attack on the Capitol and even to attacks and threats on individuals. To be clear, the attack on the Capitol was criminal and many of those who participated are being prosecuted. In addition, those who terrorized others with true threats can be similarly prosecuted. Moreover, the First Amendment applies exclusively to communication. Conduct or behavior intended to communicate is only protected by the First Amendment to the extent that the behavior is not criminal, or the behavior does not cause harm. A criminal act or harmful act is not transformed into protected speech simply because the “speaker” intended to communicate an idea.

But the lie itself: that the election was stolen remains protected speech subject to discussion, challenge, and dissection. The First Amendment…Read More

Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. She is the author of When Freedom Speaks: The Boundaries and Boundlessness of the First Amendment. You can follow her on Instagram @LynnGreenky.