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Free Speech, Protesting and Your Rights


Quick Facts

  • The right to free speech enjoys some of the strongest protections of any of the rights enumerated in the Constitution, but the right is not absolute.
  • State, local and federal governments can regulate how people express themselves, provided that they adhere to certain principles laid down by the United States Supreme Court.
  • Certain forms of speech receive no First Amendment protection and the government can stop expressive behavior that violates public safety laws, such as street sidewalk blockages, sit-ins and human barricades.

KEVIN FAYLE, FindLaw.com


Congress shall make no law . . . 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.

-- First Amendment, U.S. Constitution

Introduction

The Framers of the Constitution held the right to free speech in such high regard that they enshrined it at the top of the Bill of Rights in the First Amendment. Indeed, the right to free speech enjoys some of the strongest protections of any of the rights enumerated in the text of the Constitution.

The right is not absolute, however. State, local and federal governments can regulate how people express themselves, provided that they adhere to certain principles laid down by the United States Supreme Court. Moreover, certain types of speech - such as threats and incitations to violence - aren't protected at all.

As the season of political conventions begins and the national election starts to heat up, it is worth examining the rights of protesters, along with the abilities the government has to control the ways in which protesters deliver their messages.

Public Spaces

Land and structures owned by the federal government are considered "public" in the sense that they are owned by the taxpayers of the United States. Not all public areas are considered public forums for free speech purposes, however, and the government can disallow speech on certain government property altogether.

The public spaces that are most open to speech - and where the government has the least amount of power to regulate - are what is known as "traditional public forums." Courts have included public sidewalks, squares and parks within this definition. The government cannot remove the right to free speech in these areas, although we will see below that it may regulate certain aspects of the speech.

Another type of public property is the designated public forum. These areas are where the government, by expressing an intent to allow public speech, has created a forum where people can express themselves. The government can "un-designate" a forum, however - provided that it does not do so in order to prevent a certain group or individual from spreading their message.

Finally, there are "nonforums" - areas that are not open to unfettered communication by members of the public. Examples of nonforums include government offices and other areas where uninhibited speech could disrupt the functioning of the government.

Members of the public are generally free to express themselves in traditional and designated public forums, but the government can subject their speech to what are known as "time, place and manner" restrictions that regulate the when, where and how of a speaker's message. These restrictions must be applied evenly, and must ignore the content of each particular expression.

In the context of protests, the government has recently begun using time, place and manner restrictions to establish what are known as "free speech zones" around meetings, conventions and government functions. These zones are usually removed from the site of the event in question, and demonstrators are confined to the zone when delivering their messages. Many legal commentators have questioned whether these free speech zones violate the First Amendment's protections by failing to provide a sufficient alternative channel of communication for the speakers involved.

Private Property

Owners of private property generally have no responsibility to allow demonstrators or pamphleteers onto their property to communicate their messages since the U.S. Constitution applies to the government, not private actors.

The US Supreme Court has recognized an exception when private property acts as the functional equivalent of a municipality, however. In those cases - a "company town" set up for a company's workers, for example - the private property owner must respect free speech rights in areas that would be considered public forums, such as streets and sidewalks.

Moreover, certain state constitutions provide additional protections. The Supreme Court has ruled, for instance, that the California Constitution requires private property owners to allow speech in certain areas open to the public, such as the public spaces inside a private shopping center. The property owners may subject the speakers to reasonable regulations concerning their speech, however.

Civil Disobedience

As mentioned above, certain forms of speech receive no First Amendment protection. The government can also stop expressive behavior that violates public safety laws, such as street sidewalk blockages, sit-ins and human barricades. While these tactics might constitute an effective form of protest, the police can break them up without violating the demonstrators' right to free expression.

Conclusion

The United States was founded on the principle that any individual or group could communicate ideas to the rest of the nation, however objectionable those ideas might be to others. In order to keep the peace and provide security for the commonwealth, though, the government can create rules that guide public expression. The government must provide ample alternative channels of communication when regulating speech in public forums, however, but the exact parameters for these alternative channels remains blurry. During contentious political campaigning and demonstrations over highly emotional issues, disputes are bound to arise.

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