Warshow: “The First Amendment: Bonkers Or A Blessing?,” Above the Law


An overview for anyone, including royalty, who may not fully understand the First Amendment to the U.S. Constitution. 

As some of you may remember, Prince Harry was a guest on Dax Shepard’s podcast last month. During the appearance, Harry provided his thoughts on the First Amendment of the U.S. Constitution, stating, “I’ve got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers.”

However, Harry admitted he was no expert in constitutional law.

“I don’t want to start going down the First Amendment route because that’s a huge subject and one which I don’t understand because I’ve only been here a short time. But, you can find a loophole in anything. You can capitalize or exploit what’s not said rather than uphold what is said. I believe we live in an age now where you’ve got certain elements of the media redefining to us what privacy means. There’s a massive conflict of interest.”

You should know that Harry and I go way back, as I had once watched him plant a tree outside my former office in the Financial District. (Coverage of this momentous moment in 2011, including quotes by yours truly, can be found here.)

Thus, as one of Harry’s oldest friends, I wish to take this opportunity to offer him –- as well as anyone reading this article –- some insight into the First Amendment. Although Harry admits he is no expert on the topic, I am. Much of my legal practice focuses on defamation and Title IX law, both of which are closely intertwined with the First Amendment. And it is quite all right that Harry hasn’t studied the subject intently –- we each have our own expertise, and I myself have never perfected a proper curtsy.

In response to Harry’s expressed views, I will focus on the First Amendment’s freedoms of speech and the press, since I do not believe he is questioning American citizens’ freedoms of religion, association, or petition and assembly. However, Harry, if I am mistaken, please let me know, and I’ll circle back around to cover those freedoms as well.

The entire First Amendment is a mere 45 words, but has resulted in centuries of debate and legal proceeding. Just to sufficiently explain the ins and outs of our freedom of speech would take an article longer than anyone is willing to sit down and read, so I will skim the surface and focus today on whether the government can limit our speech, in what circumstances they can do so, and why it is important. Because this is such a big topic, even skimming the surface of our free speech rights will take a few tries, so I will be following up with a second piece devoted to civil liability pertaining to speech and a third piece devoted to press rights and limitations. Yes, readers, you are indeed getting a three-parter. If Harry doesn’t understand, I am here to explain.

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