Last Friday, the Prince Harry, Duke of Sussex was a guest on Armchair Expert, a podcast hosted by Dax Shepard and Monica Padman. The podcast, which can be found here, was entertaining and provided a peek behind the curtain of what life has been like for Prince Harry and his wife Meghan Markle since they couple stepped back from their official roles in the British royal family. In a widely publicized interview with Oprah Winfrey earlier this year, the couple revealed they had been cut off financially by the royal family after stepping back, and that Meghan Markle, who is half-Black, along with the couple’s son Archie, were subjected to racially-inflammatory comments from within Buckingham Palace.
Prince Harry and Meghan have lived in the United States for over a year now, first staying in a home owned by actor Tyler Perry, now living somewhere else. On Armchair Expert, Prince Harry said he had issues with paparazzi, then began to discuss the First Amendment to the United States Constitution, which provides for freedom of religion, freedom of the press, and freedom of peaceful assembly.
“I don’t want to start sort of going down the First Amendment route because that’s a huge subject and one in which I don’t understand because I’ve only been here a short period of time,” said the Prince. “But, you can find a loophole in anything. And you can capitalize or exploit what’s not said rather than uphold what is said.”
In the same response, Prince Harry continued, “I’ve got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers.” Saying the First Amendment was “bonkers” was reported by several news outlets. It was, naturally, vilified by those with right-leaning biases such as Fox News, while largely ignored by those with left-leaning biases like CNN. I am just here to clarify the meaning of the First Amendment and provide a bit of context for everyone.
Cutting the Man Some Slack
Before I get into a full discussion of the First Amendment and the protections in provides, I want to state that I am non-partisan and do not particularly care for Republicans or Democrats. Also, while I am indeed a lawyer licensed in Texas, I am not offering legal advice and am not providing a comprehensive primer on First Amendment protections. Okay, now for the substance:
Prince Harry has not lived in the United States very long, and the time he has lived here has been entirely within the Age of Covid, as future textbooks will surely call it. He has also lived under enormous pressure from the American and British media, the royal family, and those weird Americans who for whatever reason get, like, really into following the royal family.
I, for one, am willing to cut the man some slack for not understanding the First Amendment. And it’s not because he’s British or otherwise non-American; it’s because he admitted that he doesn’t understand it. He didn’t offer some hot sports opinion other than using the relatively lame word “bonkers,” and in fact he explicitly said he didn’t want to get into a whole discussion about it because he doesn’t understand it. The United Kingdom has free speech and freedom of the press, but it is a different system than the one we have here in the States. The man lived as a British citizen for 35 years before moving here, and it’s unreasonable for him to understand the nuances of constitutional law in a short period of time.
Think about it this way: If you uprooted and moved to Scotland tomorrow, would it be reasonable to expect you to know and understand the finer points of civil liberties protections offered by Parliament within twelve or so months? Of course not. So I say we, as Americans, try to treat Prince Harry with respect and help him acclimate to US culture as peacefully as possible.
The First Amendment
The First Amendment was drafted by then-representative James Madison and was adopted into the Constitution on December 15, 1791 as part of the Bill of Rights. The Bill of Rights was a compromise to Anti-Federalists, who opposed a powerful, centralized federal government in favor of a weaker federal government and more autonomy among the several states. Essentially Anti-Federalists didn’t want Congress making wide-sweeping laws that affect purely intrastate interests or an executive who could unilaterally do things like make war or issue executive orders. I guess there fears were legitimate because that’s where we are as a nation today, but that’s a personal soapbox for a different article.
The text of the First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This is a beautiful piece of writing. I’m serious. It’s beautiful both in the words and structure itself, but it’s also beautiful in what it does. This piece of writing does nothing more or less than prevent the government from infringing on your rights to speak, worship, or collect information.
What the First Amendment Protects
The First Amendment protects everything you agree with, and everything you disagree with, too. That’s the beauty of it. You can take out a newspaper article and say “Chocolate Ice Cream is Fascist, Racist, and Homophobic” and proceed to write 10,000 words “proving” that. At the same time, someone else can publish an article saying “People who call chocolate ice cream fascist, racist, and homophobic are themselves fascist, racist, and homophobic.” It’s a great system.
The First Amendment allows for people to disagree. That’s what makes this country work. The freedom to disagree and debate. And the First Amendment also protects your right to worship in any way you see fit. Christian, Jewish, Muslim, Buddhist, agnostic, atheist, Jedi, whatever. You can worship a stick of deodorant if you want and the government can’t do anything to prevent it. The First Amendment does not allow the government to make any laws establishing a national religion or preventing anyone from practicing their religion. That’s another thing that makes this county so great. You might see a church, a synagogue, and a mosque all on the same street, existing peacefully. There aren’t as many places on Earth as you would expect where that is possible.
The First Amendment also protects the right of the press to gather and publish information. In other words, there is no state-sponsored media. It’s not like China, where the Communist Party and the Chinese government control the vast majority of “news” that is seen by the public every day. Or consider the real extremes like North Korea, where the Dear Leader can force the state media outlet to say he hit a golf ball from the moon and it ended up being a hole-in-one on the 17th at Pebble Beach.
Unfortunately for anyone famous, this includes paparazzi. The idea is that if you voluntarily make yourself part of the public conscience, like, for instance, being an actor or politician or member of a royal family, the populace has a right to know what’s going on. That’s almost literally the premise of Keeping Up with the Kardashians and TMZ, which proves that people can be famous for being famous’s sake. Don’t get me wrong: I don’t like paparazzi. I think that people who devote their lives to trying to take photos of celebrities at their most embarrassing moments are complete leeches and contribute nothing to society in general. That said, I firmly believe they have the right to do it.
The Most Important Factor
The most important factor in the First Amendment is the requirement of a state actor. A “state actor” is basically the government personified. This means that no one from the government can take actions to limit the freedoms provided for in the First Amendment (or any other part of the Constitution). This allows speech to be free from government interference. As an aside, that picture below is one of the things that pops up if you Google “government actor stock photo,” and it cracks me up because that dude is in such a sassy-chic pose to be talking into his wrist mic. I’m picturing him saying “sir, we have a situation in Sector B; a man is wearing brown shoes with black pants.”
So take this situation for example: Paparazzo Pete is following Celebrity Cheryl and taking photos of her in unflattering poses as she grocery shops in sweat pants and a stained shirt. Cheryl, getting tired of the constant clicking, take’s Pete’s camera from him and destroys it. Cheryl might by guilty of theft or destruction of property, but she has not violated the Constitution because Cheryl is a private citizen and not from the government.
On the other hand, if Pete is taking pictures of Cheryl and FBI Agent Fred tries to protect Cheryl taking Pete’s camera and arresting Pete for attempting to publish the photos, then Fred has violated Pete’s First Amendment rights because Fred is a state actor. Fred represents the government in his capacity as an FBI agent, and therefore if he suppresses Pete’s First Amendment rights he has violated the Constitution.
And that is the most important part of all constitutional arguments. Take, for example, mask mandates. I don’t believe the government really has any right to force anyone to wear a mask in any given situation. This violates rights to privacy guaranteed in the Bill of Rights, including, possibly, the First Amendment, because clothing has, in the past, been found to be a type of speech. However, private businesses have every right to enforce whatever dress codes they want to. If Kroger has a mask mandate, you have to follow it or they can kick you out. And Kroger isn’t capable of violating your constitutional rights because Kroger is a private business and not a state actor.
That’s what just cracks me up. All these folks going into stores without masks and then throwing tantrums when they are kicked out, talking about Home Depot violating your civil rights, are all lunatics. Let me be very clear on this: private citizens and private businesses cannot violate your constitutional rights because they are not the government. I’m not making a comment on the validity or necessity of masks or mask mandates. I’m just saying that private citizens and private businesses cannot violate your First Amendment rights because they are not state actors.
If they felt so inclines, McDonald’s could implement a new dress code that every customer must wear: 1) a t-shirt with a picture of Miss Piggy snorting cocaine on it; 2) pants that fall no lower than your butt cheeks; 3) a palm-leaf fedora; 4) those jelly shoes from the ’90s; and 4) a mask that says “Ronald McDonald is the Lord Jesus Christ” on it, and they are well within their rights to do it. If you don’t like it, go to Burger King or, if you’re in Texas, go to Whataburger, which is the best fast food hamburger available anyway.
First off, I want to conclude by saying again that this article is not intended to be a full-scale dissertation and discussion of the First Amendment. The government can, for instance, curb free speech in certain limited circumstances that are seen as publicly beneficial. The most famous example is Oliver Wendell Holmes, Jr.’s statement that the First Amendment does not give anyone to yell “fire” in a crowded theater (unless there really is a fire), because that would be likely to incite what courts call “imminent lawless action,” which most people would call a “riot.” That case, Schneck v. United States, 249 U.S. 47 (1919), was partially limited even further by a subsequent Supreme Court case called Brandenburg v. Ohio, 349 U.S. 444 (1969), which essentially said the government cannot limit free speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” By the way, the Brandenburg case is super interesting factually because it dealt with a Ku Klux Klan rally and what rights hate-filled bigots have. You can read the whole opinion here.
But the First Amendment is there to protect citizens (and really anyone on American soil) from unreasonable government action. The government cannot limit free speech, generally speaking. But Prince Harry, through no fault of his own, was born into a high-visibility position in the royal family, and as such is a person of general public interest. The law allows paparazzi, bottom-feeding societal leeches though they are, to photograph and publish stories about celebrities. And it’s a good thing they do. A nation where people were not allowed to conduct themselves in such a way in public could soon turn into one in which people were not allowed to do other, much less offensive things in public.
So, yes, Prince Harry may currently thing the First Amendment is “bonkers,” but I trust that the longer he lives here the more he will come to appreciate the relative privacy afforded to most people and the freedom of government interference from all people. It’s also good that hate-filled bigots have a right to free speech. Sure, it’s unpleasant to hear people spewing wrathful untruths about whole swaths of people, but wouldn’t you rather know up front that someone feels that way? And isn’t it nice knowing that anyone can stand up and refute such claims on the same public platforms that were used to disseminate them in the first place? I like it. It’s better to let everyone speak their mind than to allow some sort of government “fact checking” rules and regulations limit speech. That’s what was in play in George Orwell’s 1984, and if you actually take the time to read it, you’ll see that Orwell was, in general, advocating for a society where people can be critical of anything and everything, including the government and even the objective truth.
Let’s welcome Prince Harry to the United States by allowing him to call something in the framework of our government “bonkers.” Let’s welcome him by showing him that the Constitution is a great thing that offers protection from overzealous and overbearing government actors. This is a country that, for decades, was the refuge of the oppressed, and let’s show him why. And perhaps more importantly, let’s continue to allow this great nation to serve as a refuge for the oppressed, even if the “oppressed” is a ginger millionaire with a beautiful wife and a friendship with Tyler Perry and Oprah.