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Freedom of Speech

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Chicago Freedom of Speech Attorney

Freedom of speech is protected by the First Amendment of the Constitution of the United States, which states, “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.”

The First Amendment provides all American citizens the right to express opinions without fear of repercussion or consequence from the government. Freedom of speech does not suggest everyone is free to say whatever they want, whenever they want. There are certain limits to this inalienable right we share as American citizens.

In many instances, it is easy to discern what constitutes “speech” for purposes of the First Amendment. The word “speech,” as used in the First Amendment, includes much more than spoken words. For example, an armband can constitute speech, as can a billboard, a book, an article, a painting, a prayer, a statement (even if it is vulgar) sewed or drawn on clothing, a movie, or music. Determining what is protected speech under the First Amendment can sometimes be difficult, but that should never discourage you from pursuing and protecting your rights. To discuss whether your free speech rights were violated, seek help from an experienced attorney.

Know Your Speech-Related Rights

The First Amendment does not explain precisely what freedom of speech means. Over the years, the courts have had to grapple with what constitutes “speech.” For example, while a painting can constitute speech, what about a specially prepared and designed cake? What about wedding photos taken by a professional photographer? The courts are ultimately responsible for determining what is and is not speech entitled to protection under the First Amendment.

Just as the Constitution protects your right to speak your mind, the First Amendment also prevents the government from forcing you to say things you do not agree with. In West Virginia Board of Education v. Barnette, 319 U.S. 624, the Supreme Court was asked to determine if forcing schoolchildren to salute the American flag violated free speech protections. The Supreme Court ruled that it did, which overturned a previous decision (Minersville School District v. Gobitis). The issue of forced or compelled speech can arise in many different contexts. For example, an issue that is arising more frequently today is when a government entity (a school, public employer, etc.) compels an employee, teacher, or student to use the preferred pronouns of another person. Another area in which this issue comes up is when public schools or public universities, for example, require employees to sign and/or repeat a diversity pledge.

A growing issue in First Amendment law is the tension between freedom of speech and antidiscrimination and anti-harassment laws and policies. In Sax v. State College Area School District, the Third Circuit held that the state college’s anti-harassment policy was too broadly drafted and would have censored and/or deterred broad categories of speech. The Third Circuit pointed out that the college could not prohibit speech simply by branding it harassment. Further, the Third Circuit stated: “That speech about ‘values’ may offend is not cause for its prohibition, but the reason for its protection . . .” The upshot of cases such as Sax is that governments and state actors need to carefully define and limit words like harassment in order to avoid infringing First Amendment interests.

Here are a few examples of cases involving both direct and symbolic forms of speech that the Supreme Court has held are entitled to protection.

  • The right of students to protest by wearing armbands in public schools. Tinker v. Des Moines, 393 U.S. 503 In 1965, a group of students planned to wear black armbands to school as a form of protest against the Vietnam war. The school learned of their plan, banned the action, and punished students who wore armbands. The students’ parents filed suit, and when the case eventually reached the Supreme Court, the Supreme Court ruled in favor of the students. The majority opinion included the now-famous quote that students and teachers do not “shed their constitutional rights at the schoolhouse gate.”
  • The right to use certain offensive words or phrases in political messages. Cohen v. California, 403 U.S. 15. When a California store worker was arrested and jailed for wearing a jacket that used a profane word to protest the Vietnam war, he claimed his First Amendment rights were being violated. The Supreme Court agreed, with Justice John Marshall Harlan writing that “one man’s vulgarity is another’s lyric.”
  • To engage in symbolic speech, including burning the flag in protest, is protected speech. Texas v. Johnson, 491 U.S. 397; and United States v. Eichman, 496 U.S. 310. In 1984, a man in Texas was criminally charged for burning the U.S. flag on the steps of Dallas City Hall. Soon after, in 1989, a federal law was passed, making it a crime to destroy the American flag. These cases, along with others, were challenged all the way to the Supreme Court, where both the Texas state law and the federal law against flag burning were struck down as unconstitutional.

There are limits, however, on the types of speech protected by the First Amendment. For example, the First Amendment does not protect:

  • Inciting imminent criminal action.
  • Producing or distributing obscene materials.
  • Making comments that meet the standard of common law defamation.
  • Agreements or conspiracies to commit crimes.

Call A Freedom of Speech Attorney Today

If you find yourself in a situation where you believe your First Amendment Rights are being violated or might be violated, you should contact a reputable lawyer to discuss the specifics of your case and learn about all legal options.

If your freedom of speech has been violated, call The Law Offices of George M. Sanders, PC, to schedule an appointment today.
You may reach us at: Phone: 312-624-7645 | Fax: 312-523-2001


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