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Most everyone past 4th grade knows what the United States Constitution is, but only a small percentage of Americans understand what it says. Even so, most Americans will agree that it's a good thing. Instead of dictators controlling every aspect of our lives according to their whims, we have one steadfast document to rule them all, with certain rights that can never, ever be taken away from us. However, when you are forced to study it (as in my case), you start to realize that it's really not steadfast at all. In fact, the more I learn about the Constitution, the more I have begun to see it like a woman who has had so much plastic surgery that she is no longer recognizable. Instead of one king, we now have nine kings, who "interpret" the two-hundred-year-old document by construing it to mean whatever will result in the outcome they want at any particular time.
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| "I think that 2nd Amendment work I had done last year really brings out my true essence." Image Source |
The idea of guessing at what stance a person who lived more than two centuries ago would take with regard to an issue that they couldn't have possibly imagined during their lifetime is laughable to me. For example, could Thomas Jefferson have ever conceived of bestiality videos being sent to each other by teenagers via the world wide web when he came up with the idea of freedom of expression in the late 1700's? This we may never know...
Nevertheless, seeing as how the First Amendment (a.k.a. freedom of speech, the press, religion, and association) is one of the most misquoted and misunderstood sections of the Constitution, I figured I would write a mini-series illuminating a bit on what it really means to those without a legal background. (Plus it helps me to study.) First up is Freedom of Speech. If it's popular, I will follow it up with a segment on Freedom of Religion.
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| Lincoln remarks on the overabundance of technology. Image Source |
Disclaimer: I am not an attorney and this is in no way meant to constitute legal advice.
Who Can Tell Me What I Can and Can't Say?
It's important to remember that Freedom of Speech only applies to actions taken by the Government or someone acting in conjunction with the government. If you're on private property, the owner of the property will have discretion over how you may "express yourself" while you are there and this constitutional protection will not apply to you. You don't have "Freedom of Speech" in someone else's house, or in the bar, or in Starbucks, so you have to stop saying that whenever you feel like acting like a jerk in public. It makes you sound like a pretentious fool.
"I am within my full rights to eject you from the premises if you give my human the creeps."
What Can and Can't I Say? (without being arrested)
It's important to consider the historical context of the time during which the Constitution was drafted. The people who drafted this had lived under a monarchy, where it was often prohibited for citizens to speak against the government. Furthermore, most of them were not allowed to practice any religion other than the one their monarch practiced. Therefore, it was important to our founding fathers that Americans be allowed to openly criticize the government and practice the religion of their choice or no religion at all without fear of persecution. It is pretty doubtful that anyone during that time could have conceived of the invasion of duck face pictures and Kim Kardashian we now face in today's society. Despite how much it may bother others, thanks to James Madison, you can pretty much say whatever you wish without fear of consequences. But, not so fast. There are 5 "unprotected" categories of speech that the government can absolutely punish you for if they want:
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| "Your disgust will not restrict my expression." Image Source |
1) Incitement words: Basically, you can't advocate for imminent lawless behavior (a.k.a. inciting a riot), and you can't speak what are often referred to as "fighting words," or words that are likely to cause immediate physical altercation. Most of the time, fighting words are racial or religious slurs, sometimes referred to as "hate speech," but they can be other things, too. It all depends on the context. According to Uncle Sam, keeping the peace is more important than your right to spew hateful things out of your mouth, so if you do this and you get in trouble with the cops, you're on your own.
2) Obscenity: Basically, it's anything appealing to a "prurient" nature, or "having or encouraging an excessive interest in sexual matters." It's not clear what exactly constitutes obscenity. We know that nakedness isn't necessarily enough by itself, but what is considered to be truly obscene differs from place to place. The Supreme Court's system for determining what is obscene is surprisingly boring. While selling and distributing obscene material publicly is not constitutionally protected, rest assured that as an adult you may not be punished for owning obscene videos, books, and pictures in the privacy of your home. (unless they are child pornography, in which case you're totally going to jail.)
3) Fraud: The government can't make it against the law to tell a lie. However, when your lie hurts someone else in a legally tangible way, you will have to answer. You can't engage in fraud and use freedom of speech as a defense.
4) Speech Integral to Criminal Conduct: This is the conversation that takes place between two people who are planning to commit a crime or who are in the process of committing a crime. It can also apply if you try to get someone to commit a crime. It's you against Big Brother if they catch you doing this.
5) Defamation: You can't spread lies about someone that measurably damage their public reputation and claim freedom of speech as a defense. If you're spreading lies about someone famous, it's a little harder for them to get you in trouble, but not recommended nonetheless.You wouldn't want someone doing that to you, so don't do it to someone else.
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| The author of this magazine could face liability for defamation if it can be shown that he had actual knowledge that this information was false at the time of printing. Image Source |
One thing to keep in mind is that although the government can regulate these areas of speech, they must do it in a content-neutral way. This means they can't make some types of these categories legal, and others illegal, depending what they are. For example, they can't say straight porn is okay to go on billboards, but gay porn is not. Obscene is obscene. It has to be all or nothing or it's not a valid law.
Where Can I Say It?
Contrary to popular belief, the areas where your beloved right to freedom of speech applies are pretty limited. Generally speaking, freedom of speech applies to public forums. Traditional public forums include public streets, parks, and sidewalks. These are the areas where your protection is the strongest. The government can try to make you jump through some hoops to get permits for things like protests, but if you follow their procedure, they pretty much have to let you do it, no matter what type of protest it is. If the regulation gives them too much power to decide whether or not to let you march, it's not going to be valid. And the rules about what you have to do to get the permit have to be in effect for an important reason in the first place. For the record, traffic inconvenience and noise generally will not qualify as a good enough reason not to allow a public demonstration.
There are other types of forums known as "designated public forums," or taxpayer-funded places that the government may decide to let people to use for expressive purposes. Public schools are a great example. A lot of people use public school classrooms for all kinds of things after school hours. But use of these facilities is not an absolute right. The government can decide to stop letting people use them at their discretion, and there's nothing you can do about it. But, they do have to be viewpoint-neutral with whatever they decide to do. For example, they can't allow a Christian organization to meet there but not a Muslim group.
I feel it is pertinent to point out again that while you can say whatever you want on your own property, you don't have the right to free speech on someone else's private property. This includes places like shopping centers, Disney World, the mall, and the movie theater, that, for some reason people tend to think of as public. The government can stop you from acting like a jerk in these areas if they want to. Interestingly enough, the government cannot make a general rule stopping complete strangers from coming to your door to distribute information. (i.e. Campaigners, Scientologists) But, if the homeowner tells you to leave, then you have to leave or face government punishment.
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| "I have a constitutionally-protected right to put you in the awkward position of asking me to leave." Image Source |
What if I'm Advertising?
This is a somewhat special category. If your expression is in commercial form, your free speech can be more strictly regulated, due to the fact that you are in a heightened position to deceive innocent people. In certain circumstances, the government can make special rules regarding what things you are allowed to communicate to potential consumers about a product or service. It all depends on the likelihood of deception to innocent consumers and the potential harm that could result from that deception. So make sure you're advertising truthfully, people.
 While still in the preliminary litigation phase, Plaintiffs are projected to formally bring forth a class action suit against McDonald's Corp. in 2019 for false advertising with regards to the true form of the Big Mac sandwich. |
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To wrap up...
These are the basics of Freedom of Speech. I decided not to include the more detailed stuff I have had to learn about it for class, such as how the Supreme Court analyzes and evaluates alleged first amendment violations, because they are simply too boring for the blog. However, I hope that you have at least learned something, and maybe you have even gained a better overall understanding of this precious, precious right (and it's many, many restrictions.)
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| 2008 Republican Convention: Be very, very careful. Image Source |
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