Cagle Law Firm
Attorney Zane Cagle

Posted on March 18th, 2016,
by Zane Cagle

The First Amendment and Respect

Posted on March 18th, 2016 by Zane Cagle

First Amendment Right to Free Speech

file0001964396712 (2)A week ago tonight, a presidential candidate claimed his free speech rights of the First Amendment had been denied after protestors assembled in and around a Chicago rally resulting in its cancellation.  This event evoked many strong feelings and brought to the forefront how difficult different opinions can be.

However, no matter which candidate you support, understanding the First Amendment is critical. In addition to understanding your free speech rights contained in the First Amendment, it is equally important to respect other’s rights and differing opinions.  Respecting differing opinions is sometimes the absolute most difficult thing to do.

Truly understanding the First Amendment is fundamental for the President and “Defender of the Constitution”After voting in the primary Tuesday at a local school, I was again reminded of the importance of “respect” and respecting other people’s opinions even if they are different from my own. I’m reminded of a guest blog from 2012 entitled, “Respect Every Day- A St. Louis Head of School Guest Comments on Respect”(New City School is a Pre-K through 6th grade school recognized as highly successful and focused on thematic learning approaches including respect and commitment to diversity.)

While it can be profoundly difficult, debate and discussion of various opinions is a crucial part of our democratic process.

Let us review the First Amendment:

“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”.

It is important to remember that the First Amendment applies to Congress and prohibits Congress from making laws that restrict free speech.  Since a governmental entity did not cancel the political rally, the presidential candidate was not denied his First Amendment right.  Protesting has long been a freedom of speech used in politics in the United States.  The US government usually only intervenes or reduces free speech when the protest participants run afoul of other laws that may endanger others and that intervention has been the topic of numerous Supreme Court decisions.

“The First Amendment protects citizens from the government, not from unfriendly audiences”

Honoring Free Speech, Respectively

obamastlouis_Q_20081018135311Last weekend’s events of violence should not be condoned by anyone.  Protestors at political rallies are not a new concept in American history.  In 2008, over 100,000 people gathered for a Barack Obama rally in  St. Louis, Missouri which was the biggest crowd ever at a U.S. event . There were protests, but no violence.

Frustration, anger, indignation, and panic are all emotions many of us may be feeling during this election cycle regardless of the candidate you support. But, after the election we will all still be citizens and neighbors which we must never forget in the midst of differing opinions.

A careful reading of the First Amendment reveals it protects several basic liberties-freedom of religion, speech, press, petition, and assembly. Interpretation of the amendment is far from easy as court case after court case has tried to define its limits of these freedoms.

 Time, Place and Manner Restrictions to Free Speech

The First Amendment to the U.S. Constitution guarantees Freedom of Speech, however, this guarantee safeguards the right of individuals to express themselves without governmental restraint.  The First Amendment is not absolute. It has never guaranteed all forms of speech without any restraint whatsoever.

The U.S. Supreme Court has repeatedly ruled that the state and federal governments may place reasonable restrictions on the time, place and manner of individual expression.  (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice.

Time Restrictions regulate when individuals may express themselves.  Government may curtail or prohibit speech to address legitimate social concerns such as traffic congestions and crowd control.  This regulation speaks to protestors specifically. The Supreme Court has held on more than one occasion that in no way one may “insist upon a street meeting in the middle of Times Square at the rush hour as a form of free speech” ( Cox v. Louisiana 1965). In most instances a commuter’s interest in getting to and from work outweighs an individual’s right to tie up traffic through political expression.

Place restrictions regulate where individuals may express themselves. The Supreme Court has recognized three forums of public expression: traditional public forums, limited public forums, and nonpublic forums. Traditional public forums are places with a long tradition of freedom of expression such as a public park or a street corner.  Limited public forums or “designated public forum” is a place with a more limited history of expressive activity usually for certain groups or topics. Examples being a university meeting hall or a city-owned theater.  Closed public forums include places that traditionally have not been open to public express, such as a jail or a military base.

Manner restrictions regulate the mode of the individual expression. Not every form of expression requires use of the written or spoken word.  Some of the most visceral impressions are made by Symbolic Speech. Symbolic speech can include something as complicated as an algebraic equation to a simple nod of the head.  Symbolic expression includes swastikas and flag burning as protected speech by the Freedom of Speech clause. However, where and when you burn a flag can be problematic if it violates another law.

When might your freedom of speech be limited?  Here are some Examples:

  • In a private home.  Again, the First Amendment prohibits government from abridging freedom of speech. But unless an individual is acting on behalf of the government or a government agent, he or she is generally free to prohibit  any kind of speech he or she wishes in his or her own home or any other private setting as long as he or she does so without breaking another law such as assaulting someone.
  • In a private workplace. If you work for a private employer, you generally have no right to free speech in the workplace and you can be disciplined based on things you say unless you work for the government. Your employer can run afoul of other laws such as discrimination laws if you’re fired for religious expression or labor laws if you’re fired for reporting labor violations or whistleblowing.
  • Social Media.  Although social media sites seem like an ideal public forum for posting unpopular or controversial content, as private companies, social media companies are technically free to delete or otherwise censor any content they find offensive
  • School activities.  Although students at public schools have the right to Frist Amendment free speech, their rights are not be as extensive as the rights of adults.
  • Obscene speech. The First Amendment does not protect speech or expression that is considered ‘obscene’. However, the line between obscene and free speech is often hard to determine.
  • You may not urge support for organizations that the government has designed as sponsors of terrorism, even if you disagree with the designation and give no money yourself.

With Freedom of Speech Comes Responsibility

The First Amendment does not cloak our words from consequence.  Each of us must think before we express ourselves publically.  Varying opinions and expression are protected under the First Amendment within the consideration of Time, Place and Manner. Even if someone cannot be constitutionally convicted for saying things publicly that may incite others to commit crimes, it does not mean it should be condoned.

The fact that some speech that is hateful, reprehensible and odious does not in any way mean that it is admirable, rational or defensible.

Treasure and Understand Free Speech of the First Amendment

Again, we should hold tightly to our First Amendment rights, but we must realize the First Amendment is not a free pass to say “whatever” we like, or “whenever” we like without responsibility.  Free speech is important during decision-making processes such as an election.  We generally become far more concerned with free speech when voicing our opinions and far less concerned with free speech of others when they are expressing views differing from our own.

However, respecting everyone’s First Amendment rights is critical.  Frankly, it is hard to do and I have to remind myself that opinions different from my own are just as important.  Ultimately, respect of one another is critical after the election is over as we are all still neighbors and citizens of the same great country and must live together.