Wednesday, November 30, 2011

Free Speech Protections and Their Limits

Since the recent raids on various "Occupy" protests around the country, there seems to be a lot of confusion regarding "free speech" rights and their limits.  Protesters have been demanding a platform to express their views on economic injustice.  Private property owners have complained about unauthorized usage of their open spaces.  The Los Angeles City Counsel has grappled with conflicting interests of fostering free expression vs. fostering the lawn around City Hall.  Meanwhile, the guy in the picture above apparently won some kind of medal, presumably for his bongo skills. 

All of these competing interests have led to the obvious question: where and how do the protections of the 1st Amendment come into play?  This post will attempt to shed some light onto that issue.  As always, the following post is intended as a very cursory outline of free speech rights and the limits of those rights.  This should not be read as an academic study of the legal issues involved and I would caution any lawyers and law students against citing to this article. 

We all know that the 1st Amendment to the US Constitution ensures that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  Since the passage of the 14th Amendment, these prohibitions have been extended to all levels of state and local government, not just Congress.

While the text of the 1st Amendment reads like a blanket prohibition against any type of restrictions on free expression, it has not been interpreted that way by the courts.  Obviously, some types of speech can be prohibited or limited.  Blasting a car horn in a residential neighborhood at midnight to protest against water rate hikes, burning crosses on people's lawns to intimidate them, making criminal threats and lying on your taxes, for example, are all prohibited forms of expressive conduct.

Other types of reprehensible speech are plainly protected.  Courts have upheld the right of the Ku Klux Klan to march through the predominantly Jewish community of Skokie, IL.  Individuals in the US are free to tattoo their own faces with swastikas (this would be illegal in most parts of Europe).  Profanity is also protected (except on broadcast TV and radio, but that's another issue).  In the famous case of Cohen v. CA (403 U.S. 15), the court upheld a man's right to wear a jacket with the words "Fuck the Draft" emblazoned across the back.  We're also free to lampoon our elected leaders and flip the middle finger to the police.

So where do we draw the line between protected and unprotected speech?  Put very generally, the validity of speech restrictions turns on whether, by prohibiting certain expressive conduct, the government is essentially trying to silence an idea or whether they are attempting to place reasonable restrictions on the time, place and manner of that speech.  The first step in any free speech analysis is to determine what exactly the government is trying to control: is it the idea itself or merely the manner in which the idea is being expressed?

When the government is attempting to silence an idea because the idea itself is inflammatory or offensive, any restrictions on that speech are going to be ruled unconstitutional almost every time.  No matter how ugly a particular idea might be, the Framers of the Constitution intended for the value of that idea to be judged by the People themselves rather than by the State.  That's why citizens are free to wave signs that say "God Hates Fags" and "Thank God for IEDs".  No matter how stupid you might look engaging in these activities, the State has no right to silence your message.

On the flip side, the government MAY take reasonable measures to regulate the time, place and manner of expressive conduct.  As mentioned above, you definitely have a right to protest against water rate hikes, but you may not do so by blasting your car horn at midnight in the middle of my neighborhood.  The city may require permits for parades and demonstrations as long as those permits are issued without regard to the message of the demonstration.  They might allow parades on certain streets at certain times of day and deny permission for parades on other streets in the middle of the night, as long as those rules are applied neutrally to everybody. 

This brings us to the "Occupy" protests.  Protesters have demanded the right to pitch tents overnight on public and private property while they raise awareness to economic disparities and various financial issues of public import.  Local governments have tried (with mixed success) to evict the protests by citing laws against urban camping.  Protesters have argued that their free speech rights are being trampled, and police have countered by arguing that tear gas burns like hell.

So who has the 1st Amendment on their side in the "Occupy" fight?  That depends on whether the government is (A) suppressing an idea, or (B) enforcing reasonable rules regarding the time, place and manner of expressive conduct.  In my eyes, the real question is whether or not the act of sleeping in a tent on a public sidewalk has expressive value in itself.  If so, what message is being expressed by sleeping in these camps?  If protesters were forbidden from sleeping in public, are other alternative channels available for protesters to express the same ideas?  I don't have the answers to these questions, but I would invite readers to share their opinions in the "comments" section, below.