Santa Rosa First Amendment Lawyer

The First Amendment Preserves a Free Society

One of the greatest liberties of the United States Constitution is the First Amendment. In its entirety, 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 peaceably to assemble, and to petition the Government for a redress of grievances

While the framework of the U.S. Constitution provides an outline for the government, the first ten amendments of the Constitution, known as the Bill of Rights, place limits on the government’s control by specifying exactly what the government cannot do. The freedoms listed in the First Amendment are conceivably the most significant for preserving a free society governed by reason and persuasion rather than tyrannical force. Even though these freedoms are indispensable, however, they are not unlimited, and courts have held that reasonable restrictions are permissible.

Freedom of Speech Includes Expression

The government cannot enact laws to prevent a person from exercising their right to freedom of speech or to punish a person for doing so. Employees, for example, should not be subject to retaliation if the questioned speech is in the performance of regular job duties. On the other hand, students can have their speech restricted for purposes of conforming to a school setting. Speech encompasses a wide array of categories: clothing, verbal communications, artistic expression, and so forth. Flag burning has been held to be constitutionally protected speech.  Some speech, however, is not protected by the First Amendment. 

Not All Speech is Protected

Although the First Amendment protects most forms of expression and speech, not all statements are worthy of protection. Accordingly, it is important to know whether speech is protected before declaring the First Amendment gave you the right to express yourself. Below are some common examples of unprotected speech. 

Fighting words are words that by their very utterance intend to entice an immediate breach of peace. Fighting words lack the social value of spreading ideas to the public that makes up the foundation of the First Amendment. This doctrine was established in Chaplinsky v. New Hampshire (1942) 315 U.S. 568. There, Mr. Chaplinsky called the town marshal, to his face, a “God-damned racketeer” and a “damned Fascist.” The court noted Mr. Chaplinsky’s words could be seen as advocating for an immediate breach of peace. Just remember that speech directed at another and is likely to provoke a violent response is not protected speech. 

Incitement is speech that is intended to incite or produce imminent lawless action and is likely to incite or produce that imminent lawless action. In Bradenburg v. Ohio (1969) 395 U.S. 444, Mr. Bradenburg, a KKK leader, gave a speech to his fellow clansman. In addition to making inflammatory comments, he encouraged vengeance against the government and minorities. He was arrested for inciting violence. Mr. Brandenburg’s speech was protected by the First Amendment. Because Mr. Brandenburg did make his speech in the presence of the targets of his advocated violence, it was not likely that his speech would cause imminent lawless action. So it is important to know that if your speech intends to incite lawlessness and is likely to incite immediate lawless action, it is not protected speech. 

Threats are not protected by the First Amendment. A true threat includes “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” And the speaker “need not actually intend to carry out the threat.” True threats are prohibited by the First Amendment because it protects individuals from the fear of violence and from the disruption that fear can bring. The common thread between fighting words, incitement, and threats is that speech that intends to overtly promote violence is not given First Amendment protection. 

Obscene speech is not protected by the First Amendment. The test for obscene speech is whether

(1) the speech appeals to the prurient interest

(2) the material is patently offensive under the law prohibiting obscenity, and

(3) taken as a whole, the material lacks serious artistic, literary, political, or scientific value. 

If the questioned speech meets each of the three criteria, the expression is not protected by the freedom of speech. Laws prohibiting obscene material are concerned with prohibiting lewd, disgusting, or dirty words or images. 

Defamation is a false statement of fact that tends to injure another’s reputation in their community. If the statement can be shown to be an opinion, or the person was speaking the truth, then it cannot be defamatory. Defamation is not protected because “there is no constitutional value in false statements of fact.” 

Is Hate Speech Protected?

There is a common misconception that “hate speech” is not protected speech. But that is not true. Again, only speech that has a tendency to promote violence is not afforded First Amendment protection. As the United States Supreme Court stated:

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate

Common Examples of First Amendment Claims

First Amendment claims differ from case to case. Some common examples include:

• • Punishing a public employee who claims to be speaking out on a matter of public concern
• • Restricting a citizen’s speech at a public meeting
• • Disciplining a school student based on vulgar speech
• • Denying a permit to a group of protests based on their viewpoint
• • Denying individuals the right to speak based on the content or view of their speech
• • Compelling an artist to use their artistic skills to express a message they do not believe in
• • Denying Freedom of Information Act requests
• • And many more.

Presumptively unconstitutional are content-based laws which target speech based on the content of what it communicates. This type of speech can only be justified if the government can show it is narrowly fashioned to serve some compelling state interest. As our Santa Rosa First Amendment attorney can explain, this is a challenging burden for the government to meet. A majority of First Amendment claims need to present an expression of constitutionally protected speech, an adverse act taken against the exercise of free speech (I.e. an arrest), and a causal relationship between the speech and the adverse act.

How Can a Santa Rosa First Amendment Attorney Help?

First Amendment issues can be challenging, but these constitutional rights are equally important for a free society. A First Amendment attorney will help protect your right to speech and petitioning activities. If you feel that your rights have been infringed upon, retaining a First Amendment attorney can help you ensure a successful resolution. We offer anti-slapp defense for those being sued for exercising their First Amendment rights. As soon as possible, you’ll want to contact our Santa Rosa first amendment lawyer to assess your options. You never know how a competent lawyer may be able to help you, so there is nothing to lose by getting in touch with our office.