David Bernthal/Off the Bench: Government action and the First Amendment

David Bernthal/Off the Bench: Government action and the First Amendment

Recent events have triggered more discussion of a fundamental American right that we commonly refer to as freedom of speech. As a result, I thought it would be a good time to write about the subject.

The right is one of the several found in what we know as the Bill of Rights. After the United States Constitution was adopted, certain amendments were made to clarify the relationship between the government and the governed.

The First Amendment provides "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 to peaceably assemble, and to petition the government for a redress of grievances."

While other important rights are included in this provision, discussion of those rights will be saved for a later column. Today, the focus will be on the second right listed. Even then we can only discuss a couple of key points.

The first point to be made is that the language serves as a limit on the power of the government. It contains a specific prohibition against the legislative branch passing certain legislation. Accordingly, Congress could not lawfully enact a statute that made public criticism of the president (or Congress for that matter) a crime. This stands in contrast with the right of a private entity to impose limitations on the speech of its members or employees. For example, the owners of the Custard Cup could impose and enforce a rule prohibiting the disclosure of the mix formula.

Of course, this freedom is not unlimited. Speech that defames is still subject to a civil suit for damages. Certain language known as "hate speech" is unlawful as is advocacy of illegal action. Perhaps the example we have all heard is "you can't yell fire in a crowded theater."

The other key point involves the extent to which conduct is protected. When courts confront freedom of speech issues sometimes they must determine if what has happened is really speech.

Regarding the first inquiry, most of the cases involve words that have been spoken or printed. However, on occasion, cases have arisen in which people claimed First Amendment protection for conduct which was not accompanied by words. Our Supreme Court has held that certain expressive conduct is entitled to protection under the First Amendment but only when the conduct is "inherently expressive." This requires that the conduct itself must convey a message that can be understood by those who see it. No words are needed to make the message understandable. Repulsive as it is to most Americans, the act of burning our nation's flag is an example of conduct that has been given First Amendment protection.

Does this mean a person can engage in any conduct and claim First Amendment protection on the basis that the conduct was intended as a statement? This is not what the Supreme Court has held. Without the limitation described above, nearly any form of conduct could qualify. With that limitation, courts are left to determine whether the conduct in question falls within the "inherently expressive" category.

A recent case from the Seventh Circuit Court of Appeals provides an example of the limit. After receiving a citation for violating a Chicago ordinance prohibiting public nudity, the plaintiff sued the city challenging the ordinance. The plaintiff claimed that the conduct of appearing in public while only partially clothed was part of a protest of the city's requirement that specified body parts be covered in public. Among other issues raised in the case was the assertion that the ordinance violated plaintiff's right of freedom of speech. Judge Sharon Johnson Coleman dismissed the complaint, and that decision was affirmed by the appellate court. In the opinion authored by Judge Diane Sykes, the court ruled that whatever the plaintiff intended to communicate, the public nudity did not itself communicate a message of political protest. As a result, no First Amendment protection was available.

I apologize if I drifted too far into Lawyerland, but I did want to point out that determinations of what is protected and what is not protected can be very challenging.

We should all remember that the protection afforded by the First Amendment is from government action. I recently saw a sign along a highway that read "You can't fix stupid but you can vote it out." The government cannot prohibit that speech nor can the landowner be prosecuted. However, if you put a sign on your desk at work that states "You can't fix stupid but you can hope for a new boss," you might want to have your next job lined up.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is askthejudge1@gmail.com.

Sections (2):Columns, Opinion