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What conduct is protected pursuant to the 1st Amendment’s assurance of “freedom of speech”?
The 1st Amendment provides for the freedom to speak and express oneself. The freedom of speech is far broader in its protections than simply protecting the spoken word. It protects individual rights with regard to any form of expression. Forms of expression may include speech, writings, physical expressions, symbols or symbolic activity, etc. The freedom of speech may still face certain limitations by the government. Certain types of speech are not protected. Further, the government may place certain limitations on the location and timing of speech that takes place on government property or somehow affects the rights of others.
- Note: Remember, the Constitution protects an individual’s rights against infringement or repression by the government. Individuals or businesses cannot infringe upon an individual’s freedom of speech.
- Example: ABC is a small town. A local ordinance limits the ability of citizens to give speeches or carry out other forms of expression on municipal property without first obtaining a permit. The permit procedure requires that any form of public expression be conducted within certain hours and not exceed a certain noise level. These are examples of government interference with free speech. This may, however, be legal as a limited restriction on speech. The standards applied by courts when a law infringes upon a fundamental right are discussed at the end of this chapter.
Discussion: Why do you think that freedom of speech is interpreted broadly to include all forms of expression? What type of events have you witnessed that are protected under the 1st Amendment’s freedom of speech? Does the breadth in types of conduct to which the freedom of speech applies surprise you?
- The freedom of speech has been interpreted to include all other forms of expressions because speech manifests itself in many ways apart from the obvious spoken discourse. The purpose was to make the law inclusive and bind all other forms of speech. The ability to criticize the government and government officials has received the greatest protection. The conduct to which the freedom of speech applied is quite surprising. Not all constitutionally protected speech is given the same level of protection. For instance, the ability to criticize the government officials is protected by the law, but if the criticism is meant to immediately incite violence (cause riots and destruction of property), It will be deemed unprotected speech.
Practice Question: Small Town is a small city located in Mississippi. Small Town has a local ordinance that prohibits publicly criticizing state officials who visit the town as part of their official duties. This includes writing derogatory articles in the newspaper or speaking ill of these individuals in public. The objective of the ordinance is to prevent citizens of the town from alienating state officials who may be linked to state funding or other resources that the town needs. Can you see any Constitutional issues with this ordinance?
- Absolutely. Certain types of speech is not protected. Notably, speech that will immediately incite violence. That does not appear to be an issue in this case. This is a direct prohibition of speech that does not fall into one of the unprotected classes. It would most definitely be held to be unconstitutional on challenge.
Sedler, Robert A., Freedom of Speech: The United States versus the Rest of the World. Wayne State University Law School Research Paper No. 07-21; Michigan State Law Review, Vol. 2006, 2006. Available at SSRN: https://ssrn.com/abstract=1000263
Coenen, Dan T., Freedom of Speech and the Criminal Law (September 20, 2017). Boston University Law Review, Vol. 97, 2017; University of Georgia School of Law Legal Studies Research Paper No. 2017-27. Available at SSRN: https://ssrn.com/abstract=3040275
Volokh, Eugene, Freedom of Speech, Shielding Children, and Transcending Balancing. Supreme Court Review, 1997. Available at SSRN: https://ssrn.com/abstract=11395
Webber, Grégoire, Proportionality and Limitations on Freedom of Speech (March 22, 2019). Forthcoming, Fred Schauer and Adrienne Stone (eds) The Oxford Handbook of Freedom of Speech. Available at SSRN: https://ssrn.com/abstract=3358273
Volokh, Eugene, Freedom of Speech in Cyberspace from the Listener’s Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex. Available at SSRN: https://ssrn.com/abstract=44402 or http://dx.doi.org/10.2139/ssrn.44402
Zick, Timothy, The Dynamic Relationship between Freedom of Expression and Equality (December 15, 2016). William & Mary Law School Research Paper No. 09-333; Duke Journal of Constitutional Law & Public Policy, Vol. 12, No. 2, 2016. Available at SSRN: https://ssrn.com/abstract=2705509 or http://dx.doi.org/10.2139/ssrn.2705509
Kamatali, Jean-Marie, The U.S. First Amendment Versus Freedom of Expression in Other Liberal Democracies and How Each Influenced the Development of International Law on Hate Speech (August 18, 2010). Ohio Northern Law Review, Vol. XXXVI, Number 3. 2010 . Available at SSRN: https://ssrn.com/abstract=2647054
Gordon, Gregory S., Freedom of Expression, Hate Speech, and Incitement to Terrorism and Genocide: Resonances and Tensions (March 12, 2018). “Incitement to Terrorism”; Published by Brill, Eds Bayefsky, A.F., Blank, L.R.; Chapter 1 “Freedom of Expression, Hate Speech, and Incitement to Terrorism and Genocide: Resonances and Tensions”; The Chinese University of Hong Kong Faculty of Law Research Paper No. 2018-13. Available at SSRN: https://ssrn.com/abstract=3230511