The Lycoming Law Association was looking for someone in the Bar willing to go into Williamsport Area High School and talk with the sophomores in civics classes to talk about the First Amendment.

The opportunity fired me up because I have been talking about the First Amendment in colleges and law schools. Why should sophomores in high school be any less challenged by the role of the First Amendment to the United States Constitution in our historical journey as a nation?

My talk began with quoting George Washington’s letter to the Jews. In his famous letter to the Jews of Newport, read in many congregations throughout the United States on Washington’s birthday, the first President of the Republic set forth an ideal for the nation which is impossible to improve upon today.

Among other things, the former General, turned politician, enunciated the following vision for the nation:

“It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.”

Never mind that historians believe Alexander Hamilton wrote the letter for Washington. What is important is the balance that Washington understood to be an essential underpinning of the national motif.

The United States cannot abide one class merely tolerating another. In other words, no favorites and no group cut out of the American dream. The United States essentially was to be balanced between a nation that would not sanction bigotry or persecution, but on the other hand, the citizens would be “good” representatives of the nation in terms of their moral and ethical behavior.

In explaining the genius of Washington, it cannot be ignored that he was a slave owner, although he freed his slaves in his will. He hunted with an enslaved man. Washington was willing to take into his Army protestants, Catholics, Hebrews, Muhammadans, former slaves and Sodomites. The Continental Army was more integrated than any military force of the United States until the early 2000s.

The issue, I explained to the students, was not whether Washington or any of the Founders were perfect, but rather whether they articulated a national model that is worth emulating today.

From the philosophy of the Founders, we step into the question of whether the First Amendment protects any and all expressions, based upon the rationale that behavior is automatically speech. There are those in this country who believe that if they feel it, they can do it. This is the justification for riots on campuses, occupation of buildings, defacing monuments, threatening Jewish students, virtually imprisoning Jewish attendees of universities and colleges in libraries, cafeterias, and their dorm rooms. The list goes on. The threats against Jewish college students, the closing down of highways and roads, and the militant pro-Hamas opponents of the American democracy, have no fear of repercussion. The colleges and universities are not willing to give up the $10.2 billion that Arab countries and China have bestowed upon the American university system.

The First Amendment does not protect any and all behavior, just because someone feels politically energized, and it certainly does not apply outside of the government context. While college and universities may voluntarily decide to abide by the free speech clause of the First Amendment, only state actors are bound by that Amendment.

We discussed the all-important cross burning cases. In 1990, the government refused to enforce the Flag Protection Act of 1989 in the case of United States v. Eichman because flag burning was said to be a free speech expression.

However, in R.A.D. v. St. Paul, 1992, criminal charges were brought against individuals for violating the St. Paul Bias-Motivated Crime Ordinance when they burned a cross in the yard of an African-American family. The Supreme Court said that although the statute served a compelling interest, there were content neutral alternatives available. The Court struck down the Bias Motivated Crime Ordinance as unconstitutional.

Finally, the United States determined in Virginia v. Black that burning a cross was prima facie evidence of intent to discriminate by itself. Violation of a cross burning prohibition could support a conviction without further evidence of intent. The statute was not an unconstitutional restraint on speech.

Actions versus speech was revisited in the abortion clinic cases. In Madsen v. Women’s Health Center, the United States Supreme Court upheld noise restrictions and buffer zones around clinic entrances and driveways because they did not burden speech more than necessary to eliminate unlawful conduct.

Other cases involving abortion clinics further defined the right to protest and its limitations.

In 2023, the United States Supreme Court decided Counterman v. Colorado. True threats of violence are outside the bounds of the First Amendment, ruled the Court. The First Amendment still requires proof that a defendant has some subjective understanding of the threatening nature of the statement made. The state must show that a defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence.

Pro-Hamas supporters in the United States today are threatening violence, behave in a violent manner, have caused destruction and significant cost to municipalities, universities, colleges, and private enterprise.

While these riots and hooliganism are well financed by those who hate America, both foreign and domestic, the First Amendment cannot be a shield for those who, in Washington’s words, have made a conscious decision not to demean themselves as good or even legitimate citizens.

A passionate supporter of the First Amendment, such as myself, can only be credible to the extent that we are willing to call those out who attempt to use the First Amendment in a distorted, inappropriate way to justify their bigotry and to persecute others.

The citizens of the United States will not stand to see their fellows, Jewish or others, degraded, demeaned, and violated in the manner sought by organizations like Hamas terrorists.

Clifford A. Rieders is a board-certified trial advocate in Williamsport.