As a follow-up to my post earlier this week, an op-ed appeared in the L.A. Times recently that gives a good summation of what kinds of expression can and cannot be limited without violating the First Amendment.
The author of that op-ed is a lawyer whose blog, Popehat, I think I have linked to in the past. He occasionally writes posts about First Amendment cases that are worth reading.
I have been interested in first amendment law since I was in law school. Very few lawyers in private practice get to work on cases involving first amendment law, and I am no exception. I still enjoy reading about first amendment cases, however.
In a recent case decision by the U.S. Supreme Court, the justices unanimously said that under the first amendment the government can’t ban offensive speech. The concept is that the first amendment prohibits restricting speech based on the viewpoint expressed. This statement by Justice Kennedy expresses the idea very clearly:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
My take on it? The logic is pretty easy to see. If the first amendment means that neo-nazis had a right to have a parade in Skokie, Illinois, then it must also mean that the government can’t refuse to allow a racially offensive phrase as a trademark. Allowing the government to prohibit either one would be allowing the government to restrict speech based on its content.
How could I resist posting about that case? The free speech question is, can the municipal government ban only inflatables that convey a commercial message, while allowing others? I dunno, but how can anyone object to a 9-foot inflatable Mario?
Apparently, at least one New York state legislator can’t comprehend that simple phrase in the First Amendment. I come to that conclusion because the legislator has introduced a bill that would require removal of statements made online that are “inaccurate, irrelevant, inadequate or excessive.” The bill goes on to say that “inaccurate, irrelevant, inadequate or excessive shall mean content, which after a significant lapse of time from its first publication, is no longer material to current public debate or discourse….”
So if someone were to decide that a statement I made on this blog is “no longer material to current public debate or discourse,” then I would have to remove it?
Read my lips: under the First Amendment, no one gets to censor speech because they think it’s not “material.” It’s that simple.
And oh by the way, the fact that it’s written on the internet, instead of being spoken in the public square, is irrelevant. If the content of a sign is speech protected by the First Amendment, there’s no way that written statements on the internet are not just as fully protected.
ANOTHER CASE OF GOVERNMENT TRYING TO SILENCE CRITICS OF ITS LAND USE POLICIES BY REGULATING THEIR SIGNS
Some time ago I wrote about a situation in St. Louis that involved that city trying to prohibit a sign that was critical of the city’s land use policies. Now there’s a similar situation, this time in Walton County, Florida. Once again, it’s an interesting combination of property law and sign regulation. And once again, I don’t see how the government (in this case, the county) can win. It looks to me like the county is trying to both take property without paying for it, and regulate signs based on the content of the messages on the signs. Those are both things that the courts have repeatedly said the government can’t do under the first and fifth amendments to the Constitution.
I DON’T THINK FILING A LAWSUIT AGAINST AN ART MUSEUM FOR DISPLAYING PAINTINGS YOU FIND OFFENSIVE IS GOING TO PRODUCE ANY RESULTS
I’m not going to get into the subject matter of the particular situation that made me think about this, it because it could be controversial, but just as an exercise in legal analysis, here’s my take on filing a lawsuit against an art museum for displaying paintings that you find offensive: it’s not going to get you any results.
If you want to read about the particular situation it in more detail, go to the post about it on Lowering the Bar. That post contains a link to a page where someone posted a copy of what appears to be the complaint that was actually filed in court. As a lawyer, I found it pretty amusing, although I can’t help wondering if it is a put-on.
The contents of this blog, this web site, and any writings by me that are linked here, are all my personal commentary. None of it is intended to be legal advice for your situation.