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Understand Free Speech Law in 6 Minutes

October 27, 2019


freedom of expression it’s one of our
most cherished rights one of the things that makes America
America the right to say whatever you want to everyone of course you can’t say just anything
you want to, right? there are rules about these things, but this
isn’t just any old area the law this involves the Constitution and the
Bill of Rights, so what are the rules? what can you and can’t you say? when is
the government allowed to interfere with your right to free speech? let’s spend a little time talking about
some of the basic law here first the amendment itself is pretty clear and short Congress shall make no law abridging the
freedom of speech or of the press so there you have it! everything you need
to know and so I can just… oh, that’s odd, it only says “Congress,” so the states are free to do whatever right? not quite. through the 14th amendment
passed after the Civil War most of the rights in the Bill of Rights have been extended to cover actions by state governments as well as the federal
one even so what counts as abridging the
right? uh… no. better you should know that banning or
restricting speech counts but so does taxing it also it doesn’t matter if you actually talk
at all protected expression includes any actions designed to convey a specific message where there’s a good chance that the
message will be understood by the audience there are two general ways the law can
restrict speech either a law can restrict speech based on what is being said, which is called a content-based restriction or the law can restrict speech based on
something else like where the speech is happening or how the speech is being
made rules about what you can say are really
hard to get passed rules about how you can say it and where are usually easier to make there are some categories of content in speech that are easier to regulate either categories like obscenity, meaning
anything X-rated, fraudulent misrepresentation, meaning
lying to people to get their money, defaming someone, meaning lying to harm their reputation, advocacy of law-breaking and so on. you can sort of imagine why those kinds of speech might not be as well protected as others to be considered advocating breaking the
law you need to say something that is designed to get people to commit an
illegal act in the immediate future and it is actually likely to cause such a
thing to happen it’s not enough to just talk about
illegal things than there’s fighting words, that’s when someone says something designed to inflict injury or cause a breach of the peace this is kind of a vague definition so the
fighting words also have to do more than just make someone angry and need to contain some specific words or deeds calling for violence it’s also not enough for the police just
have a general concern about violence happening sometimes the government is trying to
restrict speech as fighting words on the grounds that it would be found offensive but those rules are usually struck down
some rules about hate speech directed towards minorities have been left
standing but they have to be pretty narrow and then there’s obscenity. obscenity has
been really hard for the courts to figure out and varies a lot from case to
case the modern definition is that it has to
be about sex that it needs to be something that would
offend the average person in that community and that it needs to be lacking any redeeming social value so you can get out of obscenity by saying
you’re being artistic but this only applies to obscenity in
public the government can’t regulate private possession of obscene material which might be for the best and not just
to prevent the government from getting in your business either the government has given more freedom to regulate obscene content so minors don’t see it but that doesn’t mean they can do
whatever they want in that regard if government is trying to restrict speech
that doesn’t fall in one of these categories and someone sues them the court will look at the law very
closely and the government will have to show that the regulation is as narrow as it
can reasonably be and is designed to protect a compelling
government interest being the one who has to prove the case makes a big
difference so most laws reviewed under this standard end up being struck down the ultimate goal of being so hard on any content-based restrictions is to avoid a situation
where the government influences what you’re allowed to say
especially about the government itself I wonder why the founders were so
concerned about being able to criticize powerful people in the government even if the government is trying to
restrict speech in the less protected categories listed before, it doesn’t get free rein it can ban bad speech but it will get in trouble if that ban also prevents a lot of okay speech the rule is that it shouldn’t be easy to ban speech based on what is being talked about which is bad news for those of you
trapped talking to the boring guy at a cocktail party so that’s private everyday talking
that doesn’t fall into one of the special categories just shootin’ the ol’ breeze speech in public forums outside those special categories is even
more protected and the government can only pass narrow restrictions to
advance a specific and compelling government interest even if the restriction isn’t related to
the content of the speech the court doesn’t take the government
at its word either even if the government claims not be restricting speech on the
basis of content the court may still decide that’s what they really meant to do you can see it’s pretty hard to restrict speech based on what someone is saying or in public what can the government do if it wants to restrict speech based on how the person is saying it? there are two basic tests: 1st the
regulation must be narrowly tailored no, not like that. narrowly tailored means
fairly close to just restricting the actions the government is trying to
avoid the government doesn’t have to pick the least restrictive regulation possible though the 2nd test is that the
government must leave alternative channels for the speaker that means everyone will have a chance to be heard just maybe not the way they had hoped if the person wants to speak in a public
forum they will have to be given reasonable access to it the government can’t argue that the
speaker could just come back at a different place or time the government gets more leeway if they
can show that any restrictions on speech are caused by an effort to stop activity
commonly associated with that speech rather than trying to stop the speech
itself for example is the government regulating Star Trek
conventions to try and prevent angry debates over Kirk versus Picard or are they trying to prevent the property
damage that they cause? so hopefully now you understand a little bit more about the 1st Amendment and there you have it

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