Freedom of speech is not absolute
The First Amendment to the U.S. Constitution says, “Congress shall make no law … abridging the freedom of speech.”
Sounds straightforward and all-encompassing, but we know that there are exceptions, and we see them all around us.
On one hand, we are free to criticize our government, call our officials “idiots” and “morons” and even refer to our president in the vilest of terms. We can be assured that unless we make a direct threat to harm any of these officials that no members of the FBI or state or local police will show up at our door to arrest us for our comments.
That’s not to say that we will be immune to comments about our mental capacity on social media. One need look no further than to the online comments posted by Times News readers in response to some of the published opinion columns and news stories. They are also not shy about bashing each other.
This ability to say what is on our mind, regardless of how outrageous it might strike others, is one of the bedrocks of our constitutional guarantees built into the Bill of Rights.
After all, the concept of Freedom of Speech is to protect the person with the unpopular opinion or position from official muzzling or being imprisoned. In our increasingly polarized political environment, putting forth an opinion can result in vigorous reactions from both proponents and opponents, but they also can come with bullying and death threats.
While our nation’s founders were champions of robust defense for one’s causes, they also envisioned these issues being passionately debated but in a respectful acknowledgment for the other’s point of view.
On the other hand, your right to free speech has its limits: Who you are, what you say and how you say it are all factors. Politicians, for example, are immune from prosecution for comments they make as part of their official duties. While journalists find it dangerous that President Donald Trump characterizes the news media as the “enemy of the people,” there is nothing legally that they can do about it.
Conversely, if the news media write that Trump is a danger to the country and the worst president in history, he can grouse about it on Twitter, but there is nothing legally he can do to stop such publication.
Obscenity is not protected by the First Amendment, but it is difficult to define what is obscene. In the landmark 1973 Miller vs. California case, a three-part test was devised. One was: Would an average person, using contemporary community standards, find the material appeals to prurient (appealing to sexual desire) interest?
The community standards in, let’s say, Lehighton, are much different from those in San Francisco, so a court in Carbon County might be more inclined to consider an action or work obscene than a court in San Francisco County reviewing the same set of circumstances.
Broadcasters are under pressure to keep offensive language and images off the air or risk losing their licenses. Print media, however, are protected by the Freedom of Press plank in the First Amendment, meaning there is no prior restraint to publication and no licenses to worry about. A family newspaper such as the Times News, however, would no doubt have to answer to an enraged public if it started using the “f” word and other obscenities in print and online.
While citizens enjoy broad freedom of speech protection in public places, the right to say whatever we want in a private setting is another matter. You have few free-speech rights in the workplace. The Constitution’s right to free speech applies only when government is trying to restrict it.
Most employees serve “at will,” meaning that a boss can fire you for just about any reason. For example, if you are driving a company car and place a “Trump sucks” bumper sticker on it, you are not protected from being fired.
The law also prohibits speech that shows clear intent to discriminate or sexually harass, and it prevents employees in medical or financial fields from discussing confidential information outside of work.
The law has never permitted Americans to protest in any way they wanted. While the government can’t control what you say, how you say it is subject to what the courts rule is an appropriate time, place and manner.
Last week in Wilkes-Barre, activist Gene Stilp of Harrisburg was taken into custody after he tried to deface a Ku Klux Klan brick that was part of a city-owned monument. Stilp said he and many others found the brick offensive because of the group’s advocacy for white supremacy.
The city erected the monument in 2008 and allowed the public to purchase an engraved brick for $35. The issue began about a month ago when the East Coast Knights of the True Invisible Empire, a local KKK affiliate, purchased a brick.
Citing the First Amendment, Wilkes-Barre City Administrator Rick Gazenski said the group, just as anyone else, had the right to buy a brick. Stilp was prevented from using a chisel and hammer to deface the brick and was cited for disorderly conduct.
By Bruce Frassinelli | firstname.lastname@example.org