The Thing Speaks for Whatever

The First Amendment Says I Have to Write This Post and Other Little-Known Constitutional Penumbrae

In Katie, Legally Inclined, Polls Hypos and Other Imaginings, This verges on the ridiculous on October 25, 2010 at 12:17 pm

Denizens of the internet (you’re all from the United States, right? This becomes important really soon), I would like to introduce you to the most useful and important acronym you will ever know. No, not SCUBA. Not LASER. FAS.

FAS stands for First Amendment Says, and can be employed any time someone tramples your First Amendment rights. Picture this: you’re minding your own business, exercising your First Amendment rights like any good American, and then suddenly they’re trampled! It’s as if a herd of elephants stampeded over the original copy of the Constitution that, if my vague memories of National Treasure are correct, is kept in the Library of Congress when someone isn’t gallivanting about the country with it finding lots of treasure! National treasure.

Well shit.

What’s a fine American to do? Try this: “FAS you can’t [do whatever it is the elephants did to trample your rights]!” I guarantee* the elephants will stop right in their tracks, offer a sincere apology, and maybe even give you some national treasure. Nicolas Cage also might appear with his helpful sidekicks.

Thankfully there were no elephants around to screw everything up.

Nicolas Cage, pre-trampling, saving the day as always.

You may be thinking, “but Katie, I don’t know enough about the First Amendment to regularly identify situations in which my First Amendment rights have been or are currently being trampled!” Never fear, I’ll help you with the handy guide below!

Alternatively, you may be thinking (particularly if you’ve ever been to law school and/or read the Bill of Rights), “well, that’s pretty swell, but I just don’t think that the government makes laws that infringe upon the rights enumerated in the First Amendment often enough for it to flow naturally off my tongue, or even really catch on.” You, my friend, are sadly mistaken, as you shall discover shortly.

Now that you’re assured that you will, in fact, both need to and know how to execute FAS, the non-legal-minded among you may be wondering just what are Constitutional penumbrae? Well, that depends.**

If you’re an Originalist, you probably curse penumbrae as the dastardly tool of activist judges who will destroy the true and sacred intent of the Founding Fathers, who, aside*** from that whole 3/5 of a person thing, pretty much got everything right.


If your name is William Orville Douglas,not only are you the heir to an awesome popcorn fortune (fact not substantiated or even researched), but you might argue that

specific guarantees in the Bill of Rights have penumbras****, formed by emanations from those guarantees that help give them life and substance.

Griswold v. Connecticut, 381 U.S. 479 (1965). Which is to say, roughly, that the guarantees of the Bill of Rights are pretty empty if that’s all [s]he wrote.

Now, if memory serves, that whole penumbra thing went out of fashion as a Constitutional theory not long after Griswold. But if it was good enough for the Father of Microwave Popcorn, it’s good enough for this blog post. So here we go. It’s time for you to learn about all of the rights that you never knew you had, all thanks to those ten little words,*****

Congress shall make no law . . . abridging the freedom of speech

1.  The First Amendment guarantees that you can say whatever the fuck you want, and no one can criticize you!

Well I’ll be damned. Were you aware that the First Amendment protects you not only from Congress making a law abridging the freedom of speech, but also from private citizens AND the press saying anything critical about your speech that is free‽ Now, the less-Constitutionally educated among us might be wondering exactly how this works. Isn’t criticizing someone else’s speech…also free speech? NO, MY FRIENDS, IT IS NOT. Speech isn’t free if there are consequences for it! That would be more like those scams where you get a book or some CDs or a really nice leather-bound planner with gold-edged pages (thanks, AMEX!) for “free” and then they charge your credit card and send you a bunch of shit you don’t want. And our Constitution doesn’t condone chicanery like that. It seems pretty clear to me that the Founding Fathers meant to add a p.s. to the 1st Am.: IF YOU DON’T HAVE ANYTHING NICE TO SAY ABOUT SOMEONE ELSE’S CONSTITUTIONALLY GUARANTEED SPEECH, DON’T SAY ANYTHING AT ALL OR YOU’LL BE INFRINGING ON SOMEONE ELSE’S CONSTITUTIONAL RIGHTS TO FREE SPEECH. If you squint hard enough, you can actually see it on the old-timey Constitution (unless Nic Cage smudged it).

1a. The First Amendment protects you from being fired from your job, no matter what!

Well, most of the time anyway.

2. The First Amendment guarantees you a syndicated radio show to broadcast your speech that is free except to the people who pay you to have a syndicated radio show to broadcast your speech.

So un-American (the socialism, not this patriot)

Boy howdy am I glad to hear about this one, because I have a lot of student loans. You see, there’s no point to having free speech unless you get paid to broadcast that speech to a whole bunch of people. You can’t just give things away in this economy; that’s un-American. It’s SOCIALISM. And if I’ve learned anything since 2007 or so, it’s that socialism is un-American and the Founding Fathers hate anything that’s un-American, especially if it comes from Kenya. The Founding Fathers’ intent is pretty clear here too: P.P.S. DON’T BE UN-AMERICAN WHEN YOU’RE BEING AN AMERICAN WITH FREE SPEECH.

3.The First Amendment guarantees that you can criticize someone else’s speech if they’re saying stupid things about the First Amendment.

You know what’s really annoying? When people don’t know what the First Amendment actually says and they say stupid shit about it establishing a separation between church and state or some ridiculous thing like that. Not only is it annoying, but it puts you in a tough position. I mean, Rule 1, right? But it just doesn’t seem right to let someone say stupid things about the First Amendment! Once again, no need to worry: P.P.P.S. IF SOMEONE’S SAYING SOMETHING TOTALLY STUPID ABOUT THE FIRST AMENDMENT IT’S TOTALLY OKAY TO CRITICIZE SPEECH THAT WOULD OTHERWISE BE PROTECTED FROM CRITICISM BY THE FIRST AMENDMENT.

4. The First Amendment says that I have to let you say whatever you want about this and any other blog posts I might write!

This is where it starts to get really advanced, folks. You may have noticed that sometimes blogs have comment policies, and sometimes bloggers point to those comment policies as a legitimate reason to silence dissent and criticism. I bet you’re feeling torn right now, because on the one hand, you probably have seen this and thought “BUT WHAT ABOUT THE FIRST AMENDMENT?!” . . . but you’ve also just learned the Golden Rule, First Amendment Style, which would seem to suggest that criticizing a blog post would violate the blogger’s right to free speech. Never fear. There’s a simple way to reconcile your impulses. You see, there wasn’t such a thing as blogging when the Constitution was written. So, clearly, blogging isn’t protected by the First Amendment, and therefore the P.S. doesn’t apply either. In this case, First Amendment doesn’t say. SNIPE AWAY, READERS. I CAN’T DO A THING ABOUT IT. This also applies to Facebook, so feel free to pick whatever fights you want there. But don’t forget . . . you can still violate someone’s First Amendment rights if you say something nasty about their legitimate Free Speech on the interwebz.

5. The First Amendment allows you to criticize someone else’s speech if they’ve first violated your First Amendment rights by criticizing your Constitutionally-protected speech.

More commonly known as the FAS Rubber/Glue Rule Addendum******, this rule is actually the foundation of FAS. If you’ve been paying attention, you’ve probably realized that pretty much any time you tried to utilize FAS, you’d be violating Rule 1. But there has to be some mechanism for protecting your rights, and this is it. Don’t question. Just accept.

Final Exam

Are you ready to apply everything you’ve learned? Lucky for me, that whole Christine O’Donnell thing that you can read more about (if you haven’t heard enough already) in Rule 3 provides an excellent final exam. Lets break it down here (don’t worry, it’s multiple choice!):

As a final treat, this image sums up everything you need to know about the First Amendment:


Really delicate, y'all

*I don’t actually guarantee this, but FAS I can say it anyway.

**You may or may not be aware that I am the proud holder of both a law degree and a license to practice The Law. As such, you may anticipate that my answer to almost any question will be “that depends.” The answer to “are you a First Amendment scholar/practitioner?” is, however, a resounding “NO.” In fact, certain amongst my co-bloggers (to whom I refer as my rumble-gang; I don’t think anyone else particularly endorses this terminology) almost definitely know more about the 1st Am. than I do. They probably know less about Nicolas Cage, though.

***Or not aside, depending on where you think white sheets belong?

****As you may have noticed, I prefer penumbrae. It sounds more snooty.

*****Yeah, yeah, the First Amendment has more words and more rights. I’m too lazy to write about more than speech right now.

******All of my best lines are attributable to Rooks. Sigh. Big, big sigh.

Exam Answers: 1-B; 2-B; 3-A; 4-B

  1. As the schematic artist of the Constitutional ecosystem graphic on this page, I thought it might help to explain the delicate cycle at work:

    1. Nic Cage (top left) investigates mysteries and shits out Founding Fathers and traditionalist Supreme Court judges.

    2. Termite Queen Sarah Palin (bottom left) eats them and deposits them in the fiery depths of her bowels.

    3. There they burn (bottom right) and give off an ethereal smoke that…

    4. BECOMES the Constitution (top right), which then embeds itself back into the books and minds of righteous and curious do-gooders (like FAS activists!) investigating its mysteries…

    5. The most important example being Nic Cage (top left), who then shits out more Founding Fathers and Supreme Court traditionalists, and Elton John (not pictured) starts singing “Circle of Life”…

    • I am so very glad you spelled that out. Bemused yet puzzled is not my best look.

      • As you can clearly deduce from this graphical representation of the ecosystem, the Founding Fathers (and their brethren, traditionalist SC justices) have always JUST created the Constitution, and therefore it must always be taken literally and considered to be current and devoid of contextual interpretation (other than those obvious inferences such as the ones Katie has beautifully explained in this here post without using ridiculous run-on sentences like this one) and it can be assumed that we know exactly what its creators meant and that their words are concrete and final as they appear on the page.

  2. I call FAS. I know a LOT about Nicolas Cage. FAS you can’t preemptively assume I don’t know every line of Raising Arizona when I DO.

  3. FAS your iron-fisted, anal-retentive correction tramples on my rights!

  4. Um, where’s my recreation of the FAS protections regarding denigrating Nic Cage elucidated on Facebook?


  5. William O. Douglas grew up in Yakima. This is a fact both substantiated and researched by me when I wrote a report about him for my 7th grade Social Studies class. If you come visit, we can go to the Yakima Valley Museum’s re-creation of his office and see if it says anything about popcorn.

  6. Hey, as long as nobody tramples on my right to bare arms, I’m okay.

    ::wears muscle tee::
    ::gets mocked::

  7. […] on occasion, a fact I do not recall at all, but hey, “Wiki Says” is layman’s FAS), and, of course, Muppet Babies.  Even without the booze, this is some seriously nostalgic […]

Whatever, yo.

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