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
