The First Amendment to the United States Constitution (contained in the Bill of Rights) prohibits the federal government from making any law that interferes with free speech and a free press. Today we will only deal with these two, although the First Amendment also speaks to the freedom of religion and the freedom to assemble to ask for change in the government (the latter two will be dealt with separately in upcoming blog posts).
State governments cannot impede your right to free speech. The U.S. Supreme Court limited the ability of states to interfere with your precious right of free speech. The U.S. Supreme Court has now ruled that the entire First Amendment must be applied to state governments as well.
Your First Amendment right to free speech is very broad, and you can pretty much say what you want without government interference. The U.S. Supreme Court endorses the idea that our society benefits from a free market of ideas. With that in mind, the government has to be able to carefully justify limits on your free speech in court to avoid violating the First Amendment, especially when it tries to limit what you can talk about. In one famous case from 1971, the U.S. Supreme Court overturned Paul Cohen’s conviction for disturbing the peace in a Los Angeles courthouse. Cohen was wearing a jacket with the phrase “Fuck the Draft” stitched on the back. Justice Harlan, writing for the U.S. Supreme Court wrote that “whether California can excise, as ‘offensive conduct,’ one particular scurrilous epithet from the public discourse, either upon the theory … that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.” The answer to that eloquent question is no. Why? Although offensive to some, the jacket was not an incitement to violence. Second, the court determined that the government had no right to enforce the public morality as it concerned the four letter invitation on the back of Cohen’s jacket.
The incitement to violence idea is important to the U.S. Supreme Court. It has held that encouragement of lawlessness and violence is impermissible and it is not protected by the First Amendment. One famous case held that shouting “fire in a crowded theater” is not free speech. That kind of speech is nothing more than an incitement to violence, and it endangers people. In addition to “incitement” there is less protection for obscenity and commercial speech.
Keep in mind that an important part of free speech is the guarantee of a free press. The right to spread ideas through
print, television and Internet is built into the broader concept of speaking those thoughts freely. However, the press is not given an enhanced right of free speech, and this means that its ability to share ideas is not greater than the public’s right to free speech.
Shaun Kaufman’s law school days were filled with constitutional law. In 1983, he won the American Jurisprudence Award for Excellence in Constitutional Law Study. After that, he took specialized courses in the First Amendment and edited a number of articles on that subject for the University of Denver Law Review.
Shaun Kaufman Law specializes in criminal defense, personal injury and business litigation.
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Related Articles and Sites:
msnbc.com “‘First Amendment rights can be terminated’ When cops, cameras don’t mix