Indiana experts weigh in: Though brief, First Amendment poses complexities

"Virtually every word in there has been litigated," said Tony Fargo, associate professor at Indiana University's The Media School and director of the Center for International Media Law and Policy Studies.

Recent cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will determine whether free enterprise can discriminate on the basis of sexual orientation and gender identity because of religious beliefs, still question how the First Amendment freedoms should be applied.

"No right is absolute," said Jane Henegar, executive director of the American Civil Liberties Union of Indiana. "Even free speech is not absolute."

While judges are left to interpret its complexities, many Americans aren't even aware of the First Amendment's basics.

A survey of more than 1,000 people conducted this summer by the University of Pennsylvania’s Annenberg Public Policy Center found 37 percent of Americans can't name any of the five rights protected in the First Amendment. Only 48 percent could name freedom of speech.

The First Amendment to the Bill of Rights grants five freedoms — religion, speech, press, assembly and petition.

It doesn't apply in cases between two private individuals or entities (for example, a company Facebook group can delete someone's comment if they find it distasteful).

"The first amendment protects us from the government, primarily," Fargo said. "It doesn't basically mean that there can't be other consequences for what you say."

FREEDOM OF EXPRESSION

First Amendment experts often lump freedom of speech and press together, calling them freedom of expression, Fargo said. That's because the courts have been clear that members of the press should have no more rights than any other citizen.

Freedom of expression also extends to actions, or protests; it's the reason people generally can legally burn the American flag, as much as others may find it disrespectful. (Although, the flag-burner may not be able to escape other fire-related laws).

Virtually all the Constitutional amendments have limitations, however.

"What the Supreme Court has said is you have a fairly broad right to speak ... an almost unlimited right — except you can't speak in such a way that you are likely to incite an immediate breach of the peace," Fargo said,

Governments can also institute "time, place and manner" restrictions.

"Let's say that you want to have a march down Main Street and carry banners supporting whatever cause you happen to have," Fargo said. "You cannot do that without a permit, without a license from the city. The city has to issues those licenses on a nondiscriminatory basis ... but at the same time, it allows the city to stop a protest that doesn't have a permit or is basically going to tie up traffic for hours ..."

A court would have a hard time, then, telling a university it can't allow someone to speak based solely on their message — even if that message is widely considered to be hateful, he said.

Indiana University allowed Charles Murray, co-author of "The Bell Curve: Intelligence and Class Structure in American Life" that argues race plays a part in intelligence levels, to speak on campus. IU also allowed people to protest outside the venue.

" ... What they did is basically try to protect both sides and allow them a chance to be heard," Fargo said. "That, to be honest with you, is about the best a university can do, is try to accommodate both the people who are angry this person is here, and the person [speaking] ..."

A university could theoretically bar a speaker if officials believe his or her presence will incite violence, he added. The same principle of protecting against threats of violence applies in cases of hate speech.

Fewer limitations exist for the press — the government can do very little," Fargo said. In fact, a government can't bring a libel suit against a media organization.

"One of the few things that the Supreme Court has been very clear about is that the worst thing that can happen to free expression rights is for the government to censor speech, to basically deny it the chance to be heard, and that particularly applies to the press because that's their business, is to get messages out," Fargo said.

But a free press doesn't mean you can print anything you want, said Stephen Key, executive director and general counsel of the Hoosier State Press Association.

"There are limitations on the press and freedom of speech," Key said. "You do not have the right to libel somebody or incite violence or violate the copyright of work that somebody else has done."

That means journalists must be trained to understand their responsibilities — maintaining "fairness, accuracy and the pursuit of truth," Key said.

FREEDOM OF RELIGION

Freedom of religion is given the most detailed definition of all the rights in the First Amendment. It states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The establishment clause means the government can't promote one religion over the other, Henegar said. The free exercise clause protects someone's right to express their religious beliefs.

Sometimes, these two clauses are in conflict with one another. For example, a public school teacher may say the free exercise clause protects her right to express her religion in the classroom, but others could argue this infringes on students' right to not feel coerced by a government employee to practice one religion over the other.

In cases where two amendments are in conflict with one another, the courts often weigh the relative harm either may create.

It's likely that the Supreme Court will have to decide in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Colorado cake shop refused to bake a wedding cake for a gay couple because they say doing so goes against their religious beliefs.

"We don't question their religious beliefs," Henegar said. "We say, what's the harm of having to do that conduct, make a transaction, weighed against the harm of the person who's being discriminated against?" (The ACLU argues in this case the harm placed against the gay couple is greater).

The courts made it clear in the 1960s, she said, that religious freedom can't be used as the basis for discriminating against someone because of their race or gender.