When is Free Speech Not so Free?
We often hear discussions about the First Amendment’s guarantee of free speech. It’s a constitutional right, one that many throughout the world do not enjoy. What does this right entail, and what is not included?
Defining Free Speech
Speech in this country relates to actual words, but includes actions, as well. The Supreme Court has defined specific activities that are encompassed in the right of free speech. They include the right:
- To refrain from speaking—specifically the right to refuse to salute the American flag (or to knees during the National Anthem);
- To protest—by wearing armbands, by marching, by refusing to purchase particular merchandise, and much more;
- To use offensive language—including ideas that may seem crass—when attempting to convey a political message;
- To donate money to the political party of your choice (with certain limitations);
- To participate in symbolic activities that may disturb others—like burning the US flag;
- To advertise goods and services with certain restrictions.
What’s Not Allowed?
While the rights Americans enjoy are seemingly endless when it comes to free speech, there are some very clear restrictions. A short list of just some of speech that is not protected by the Constitution include:
- Incite criminal activity;
- Create and/or distribute obscenities;
- Protest a war by burning draft cards;
- Print articles in a school newspaper at the objection of school administration;
- Engage in obscene speech at school-sponsored activities;
- Threats that indicate the intention to commit violence against someone else;
- Fighting words that occur in face-to-face interactions and are likely to provoke a violent response from a typical person;
- Advocate the use of illegal substances at a school sponsored activity.
Isn’t Some of that Difficult to Define?
Without question, some of the terminology related to free speech can lead to questions as to what constitutes unlawful speech. This requires a closer look at some language:
1- Incitement: While it is technically okay to promote violence or lawlessness, it becomes a legal problem when the incitement is likely to produce imminent violence.
2- Threats: To be clear, even when a threat is not carried out, the threat itself is illegal;
3- Obscenity: There are three standards, each of which must be met in order for material to be considered obscene in a legal context:
- a) If a typical individual using community standards would judge it to appeal to one’s “prurient interest” when viewed in its entirety;
- b) When sexual behavior is described or depicted in an offensive way according to community standards;
- c) When there is no objective value in terms of literary contributions, political acuteness, science, or artistry as far as community standards would judge.
Are you facing criminal charges for speech that you think should be protected by the First Amendment? At Lobo Law, our experienced Las Vegas criminal defense attorneys fight for the best possible outcomes for our clients every day. For a confidential consultation about your situation, schedule an appointment in our office today.