Hey, you can’t say that!

The First Amendment is not an umbrella law that protects all speech. There are many places and times that the Constitution will not protect what you want to say, when and where you want to say it.


Where Your Speech is Protected

The law breaks down speech forums into public and private. In a private forum, such as a home, business, or mall, your rights are subject to whether or not your speech disrupts the function of the private space. You can pass out fliers in a mall, for instance, because you are not stopping people from shopping, but you can't start yelling in a movie theater about the death penalty.


Public forums are broken down into three categories: non-public, designated, and traditional. 

Non-public forums are government buildings such as post offices, prisons, and military bases that are simply not for general public use. 


Designated public forums are buildings such as public libraries and public schools that are not automatically available to the general public. In these places the government limits the time, place, and manner of public use to ensure public access does not conflict with the primary function of the property. 


Last, there are traditional public forums that historically have been used as forums. Parks, streets, and sidewalks adjacent to public buildings are places you have the presumed right to use your freedom of speech. You may hold meetings, protests, and, in Bell's case, hand out fliers. However, the law states that local government entities are allowed to set up rules, hours, and policies to facilitate the use of these forums. These regulations are only constitutional if they are applied equally and do not discriminate based on the content of the speech. If you would like to have a march down Broadway, you need to acquire a permit. (Note, the San Antonio Free Speech Coalition is currently suing the City of San Antonio over its new parade ordinance. A federal judge ruled parts of the law were unconstitutional because they allowed the police too much discretion in charging fees, which could lead to content-based discrimination. The court is reviewing a new draft of the ordinance, but the Free Speech Coalition is also challenging additional parts of the law, including its provisions for indigent groups. Read all about it at "I love a charade," January 16, 2008.)


What Speech is Protected

The last century has produced a trial-and-error interpretation of First Amendment rights that try to strike a balance between free speech and the urge to stifle publicly disruptive behavior, resulting in these guidelines:


The First Amendment does not protect fighting words, speech that is directed at an individual and inherently likely to inflict emotional harm and/or trigger violence. In a 1942 ruling in Chaplinsky v. New Hampshire, the Supreme Court upheld the arrest of a man who told an officer he was a "goddamned racketeer" and a "damned Fascist." However, if Chaplinsky had said "all police officers are damned Fascists," he would have had a valid defense because it could be interpreted as social commentary and wasn't stated towards an individual.


Similarly, the First Amendment does not protect speech that incites violence, but does protect speech that advocates violence. As long as it does not pose an imminent threat or harm, the speech is protected, as seen in most hate-speech cases. In Brandenburg v. Ohio, the Supreme Court ruled in favor of a KKK leader who made veiled threats at a rally to take "revengeance" against various leaders in government. The Court ruled that he had the right to advocate that violence, as long as his speech wasn't intended and likely to produce immediate illegal activity or violence. The government can't stifle speech just because society doesn't like it.


The First Amendment also doesn't protect the heckler's veto. If you are standing in a Pro-Minutemen meeting that has received a permit for a public event and you start called them racist bastards, you can be arrested. If the heckler is allowed to halt the meeting's proceedings, they are in theory limiting the speaker's freedom of speech, which takes precedence because it is orderly and permitted.


Speech isn't always the spoken or written word, and similarly not all forms of symbolic speech are protected. Texas played host to one of the biggest challenges to symbolic speech in Texas v. Johnson, when a man burned the United States flag and was convicted of desecration of a venerated object. His sentence was overturned because his right to express himself symbolically is protected under the First Amendment. However, when a man tried to burn a draft card in 1966, his demonstration was not protected. If the symbolic speech disrupts government function, like burning government documents, it is not accorded the status of protected free speech under the Constitution.

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