WASHINGTON, April 9, 2017 — No, you cannot shout “Fire!” in a crowded movie theater. But the right to freedom of speech still encompasses a great deal, far more in the last twenty years than history would have ever imagined before.
On the most basic level, the constitutional right known as freedom of speech means we can express our opinions and ideas without fear of government retaliation or censorship, or sanctions from society at large. This fundamental right includes any act of seeking, receiving or delivering information or ideas, regardless of the medium used.
The literal act of speaking is a small part of this right. Actions, too, are equally protected forms of free speech, as is the right not to speak, or the right not to act.
Recall Colin Kaepernick, the quarterback of the National Football League San Francisco 49ers, who refused to stand when the National Anthem was played prior to each game. Back in 1943, the Supreme Court decided West Virginia Board of Education v. Barnette, authorizing the right not to salute the flag. Both cases involved the right not to “speak” or “act” as protected by the freedom of speech right guaranteed in the Constitution.
In 1969, an earlier controversial act—which occurred when students protesting war wore black armbands to school—was determined to be legal as well. Since Buckley v. Valeo was decided in 1976, even the act of contributing money (under certain circumstances) to political campaigns is a protected form of free speech.
The right to freedom of expression includes the right to take and to publish photographs of strangers in public areas without their permission or knowledge.
Freedom of speech is truly almost universal. It is recognized in international and regional human rights laws. It is seen in the International Covenant on Civil and Political Rights (Article 19), the European Convention on Human Rights (Article 10), The American Convention on Human Rights (Article 13), and the African Charter on Human and Peoples’ rights (Article 9).
In the United States, the right to free speech is perhaps the single most heralded right in American law and culture. It is described in the First Amendment to the Constitution, which in part says “Congress shall make no law… abridging the freedom of speech, or of the press…“
One of the Supreme Court’s most heralded and respected justices, Benjamin N. Cardozo, explained that “freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.” —Palko v. Connecticut, 1937
The evolution of the right to say or do what you want has evolved, as would be expected over time. Before the world of the Internet, the dissemination of speech and action was slower and often not publicized on a wide scale, particularly if members of the press did not know about the speech in question, or if they otherwise chose not to publish it.
The widespread use of the Internet in the early 1990s figuratively blew open the doors on the subject. Soon enough, the very openness and lack of guidelines that characterized this new communications medium precipitated the passage of the Communications Decency Act (CDA) in 1996.
The CDA was the first major attempt by Congress to regulate pornographic material on the Internet. The following year, in what has been called a landmark case, the Supreme Court decided Reno v. ACLU. In so doing, the CDA was partially overturned, with the ruling essentially saying that limiting speech on the Internet was constitutionally intolerable.
A lower court judge ruling on the case noted that
“…speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar – in a word, ‘indecent’ in many communities… my analysis does not deprive the government of all means of protecting children from the dangers of Internet communication… (they) can continue to protect children from pornography… through vigorous enforcement of existing laws criminalizing obscenity and child pornography…”
Freedom of speech rights do not protect speech or actions that would incite harm to others; endorse the right to make or distribute obscene materials; permit students to print articles in a school newspaper over the objections of the school administration; or allow students to advocate illegal drug use at a school-sponsored event.
Obviously, however, there are inherent limits on freedom of speech. Justifications for limiting the right to speech often reference the “harm principle” or the “offense principle.” Hence, when speech conflicts with other rights and freedoms, such as in cases of libel, slander, pornography, obscenity, “fighting words,” and intellectual property, such speech is not protected. That means the speaker in such cases can be prosecuted in a criminal court for disseminating the offensive words or actions.
The justifications for seeking to prevent certain kinds of speech are not absolute. Like much in the law, the notions of “harm” or “offense” always involve at least two sides with regard to what is meant. Thus, various lawsuits have attempted to resolve and define when speech is harmful or offensive.
How offensive was it to Skokie, Illinois—a community counting many Holocaust survivors— when, in 1978, a neo-Nazi group wanted to march through that city brandishing swastikas? Clearly, the prospect of that event was very offensive to that community.
Nonetheless, the neo-Nazis won their court battle, arguing that freedom of speech laws protected them, much the same way as they protected civil rights marchers in Southern cities during the Civil Rights era when the town leaders there tried to prevent those marches. In the Skokie case, the neo-Nazi group never did march through the city, however, choosing instead to rally at Federal Plaza in downtown Chicago.
Speech can be controversial. The boundaries of what is and what is not protected speech are constantly being pushed.
Napier Fuller, a Wilmington, North Carolina, architect, was arrested at gunpoint this past February, as five deputies interrupted a business meeting and took him to jail in handcuffs. What was his horrible offense? He wanted to weigh in on his views of the bathroom issues for transgender individuals, sending what were termed “annoying” emails to faculty members and students at UNC-Chapel Hill University.
Chelline Carter, of Lafayette, Louisiana, took cellphone photographs of a police vehicle, in the back of which of her son sitting after he was arrested. While she did not interfere with police in any way, police took her phone and deleted the photos, all without a warrant or Ms. Carter’s consent.
Marjorie Esman, Executive Director of the Louisiana ACLU, stated
“…everyone has a right to photograph what they see, including actions of the police, as long as they don’t interfere… in addition, cellphones are by law private and can’t be searched without a warrant. Ms. Carter had every right to take and keep the photos.”
In Virginia this month, a Richmond high school student sent an email from his home computer to the admissions staff at Harvard University, telling the school that it had admitted a classmate who had been found guilty of cheating, in violation of the high-school’s honor code. The email was not shared with any other student, nor published on social media.
Nonetheless, high school administrators, who were copied on the email, decided to punish the student. The student sued, and a federal judge in Richmond has ruled that the student can maintain his lawsuit against the high school as they violated his First Amendment rights.
College campuses have been considered bastions of free inquiry and robust debate. Perhaps nowhere else are free speech rights been so embraced.
Yet, last month, on March 2, students at Middlebury College in Vermont shouted and protested to prevent Charles Murray from giving a lecture. Murray co-authored The Bell Curve, a controversial book discussing human intelligence, which raised questions regarding its statements on race and its resultant effect on grading at schools.
But on the same day, Flemming Rose, a Danish journalist who, in 2005, published cartoons of the prophet Muhammad (which were then criticized by many Muslim groups), appeared and lectured at Franklin & Marshall College in Lancaster, Pennsylvania.
Freedom of speech is often misunderstood, often taken for granted and is constantly on the defensive both inside and outside the government.
May you speak or act? Yes, maybe. No, sometimes. Guidance? None. The law is constantly being pushed and challenged. What was prohibited yesterday may be protected tomorrow. And, there will inevitably be something new somewhere down the road. Today, it is already hard to remember it was only a short time ago that the Internet entered into this ongoing discussion.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.Click here for reuse options!
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