Articles Tagged with first amendment rights

Free Speech: it is a right guaranteed by the First Amendment. But does that mean anything goes? Some may be surprised to learn that there are definite limits on what is allowed. 

What is Permitted

In this country, the concept of speech is more than simply actual words. It includes actions, as well.  Particular activities encompass the right of free speech, according to the US Supreme Court. They include:

  • The right to protest—that might be by wearing armbands, by marching, by refusing to purchase particular merchandise, or to kneel during the National Anthem, and much more;
  • The right to use offensive language—including ideas that offend others—when attempting to convey a political message;
  • The right to donate money (with limitations) to the political party of your choice; 
  • The right to participate in symbolic activities that may offend others, such as burning the American flag;
  • The right to refrain from speaking—specifically, the right to refuse to salute the American flag 
  • The right to advertise goods and/or services (with some restrictions).


While it may seem that Americans experience endless freedom when it comes to speech, there are some explicit boundaries.  Some speech that is not protected by the Constitution includes language that:

  • Incites criminal action;
  • Relates to the creation or distribution of obscenities;
  • Includes protesting a draft by burning draft cards;
  • Threatens to commit violence against someone else;
  • Is defined as fighting words that occur in face-to-face interactions and are likely to provoke a violent response from a typical person;
  • Involves the printing of articles in a school newspaper despite the objections of the school administration;
  • Is obscene speech at any school-sponsored activities;
  • Advocates using illegal substances at a school-sponsored activity.

Defining the Terminology

Unquestionably, some of the words related to free speech and its limitations are tough to understand and define. This requires a closer look at some of the terminology:

1-    Threats:  Even if a threat is not carried out, the making of any threat is illegal;

2-    Incitement:  While it is allowable to promote violence or lawlessness, it becomes a legal problem if the incitement is likely to produce imminent violence.

3-    Obscenity:  Three standards must be met in order for material to be considered legally obscene:

  1. a)     Sexual behavior is depicted or described in an offensive way as per community standards;
  2. b)    When viewed in its entirety the material violates community standards and is determined to appeal to one’s “prurient interest;”
  3. c)     Community standards render the material to have no literary, political, scientific, or artistic value.

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Free speech in America is central to our democracy. But do Americans really understand this right and the very real limitations on speech? It is worth noting in these challenging times that when people choose to ignore the restrictions on free speech it could lead to legal woes. 

Recent High-Profile Example

Alex Jones, who spent about a decade gushing falsehoods about the shooting at Sandy Hook Elementary School on his radio show, wound up being sued for the damage he caused to the survivors of the shooting. A jury sided with the plaintiffs, which resulted in Jones being ordered to pay hundreds of millions of dollars to the families of victims in a combination of compensatory and punitive damages. Jones argued that he was being prosecuted –and persecuted–simply for using his First Amendment right to free speech. The jury did not buy it.  It is true that the First Amendment protects the right to express dissenting opinions, even when those opinions are flat-out wrong based on the facts, they are offensive, or they are cruel. However, it does not protect against defamatory speech. Sandy Hook families were able to launch civil charges against Jones for defamation, and the juries agreed that his words were not protected.

Some Speech is Not Protected by the First Amendment

In fact, there are several types of free speech that are not protected by the Constitution. These include:

  • Defamation and label;
  • Vandalism;
  • Criminal threats;
  • Child pornography;
  • Unlawful assembly;
  • Refusing to disperse if police direct one to;
  • Trespassing;
  • Obstruction of a law enforcement officer.

Hate Speech

Hate speech has been in the news a lot these days. There is actually no legal definition for hate speech, but most people recognize that it relates to any speech that is demeaning or insulting to a particular group that is based on sexual orientation, religion, race, disability, or gender. Speech directed toward specific subgroups like these is not protected by the first amendment in this country


The Supreme Court has ruled that highly controversial actions such as burning an American flag are protected by the First Amendment, despite the fact that many in this country find such behavior to be detestable. On the other hand, it is unlawful to use a symbol as a threat to others. What about carrying a confederate flag or wearing a swastika if others feel threatened by those items? This is essentially a gray area, and each case is determined on its own merits and the level of threat involved. Continue reading

In a big announcement, the Lee County Attorney’s Office dismissed the remaining charges against the protestors arrested last fall while protesting the Dakota Access Pipeline. Over 50 people, ranging from their mid-teens to their late 70s, were arrested on charges including trespassing, interference with official acts, and disorderly conduct. While some pled guilty and agreed to pay their respective fines, the majority of protestors pled not guilty and requested a jury trial.

In more than one instance, journalists covering the protests were arrested along with legal observers and protestors. Assistant Lee County Attorney Clinton Boddicker dropped the charges against one reporter, Aaron Murphy, along with those against 10 other protestors that only had one charge against them.   

Those with more than one charge were offered a different deal. One woman, Jessica Garraway of Minneapolis, had her trespassing charge dropped if she agreed to plead guilty to a charge of interference with official acts and pay the maximum fine.

One of the reasons the County likely dropped the charges was in the interests of court efficiency.  “‘If they all ended up having a jury trial, I would probably have had a jury trial every week between now and October, and we still probably would not have reached all the cases,” said Boddicker.

For those who did not show up to court, Lee County says it is planning to issue arrest warrants.

The Press is Supposed to have Reporter’s Privilege

Under the First Amendment of the U.S. Constitution, the freedom of speech and press, and therefore the right of newspapers to cover and publish a story are protected rights that should be free from government interference. However, it is more of a legal gray area when reporters have to news-gather, and go to the protest, or step over a police line to get their photos and story.

Assuming the protest is in a public forum, reporters should not need credentials to cover it—they enjoy a right of access along with the public under the umbrella of the First Amendment.  However, the government is allowed to institute time, place, and manner restrictions on free speech activities.

In those instances, it is recommended that a reporter get credentials or a ‘press pass’ from police departments to be able to cover a protest. Credentials will allow a reporter to cover the protest, but not partake in it. It also does not guarantee that he or she can cross police lines. This means that reporters also cannot “commit” crimes while trying to do their job, such as trespassing. In any event, it can be assumed that police and the current Administration will seek to limit press access and increase retaliation against reporters covering a contentious protest. If you are a reporter, it is recommended you have a criminal defense attorney on-hand if you know you are going to covering an event with high arrest rates. Continue reading

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