Guidelines Regarding Free Speech
An educational document prepared by the Salt Lake City
Attorney's Office
A. Introduction
The First Amendment�s
guarantee of the right of free _expression_ is a fundamental element
of our democratic system of government. However, that right of free
_expression_ is not absolute. Some kinds of speech, such as obscenity,
defamation, and fighting words, are not protected by the First
Amendment. In addition, to further significant governmental
interests, the government may regulate the time, place, and manner
of the exercise of protected speech rights.
An example
of a �time� regulation is an ordinance banning loud noises in
residential areas during the night. An example of a �place�
regulation is a requirement that parades not be held on certain busy
streets. An example of a �manner� regulation is a restriction on the
size of signs carried by picketers.
The government cannot
impose speech restrictions simply because it disagrees with the
message of the speaker. In other words, government regulation of
speech must be �content-neutral.� Furthermore, a time, place, or
manner regulation must advance a significant governmental interest,
not restrict more speech than necessary to further that interest,
and leave speakers with an ample alternative means to express
themselves.
B. Public Safety
The City has a
significant and compelling interest in maintaining the safety of
people on streets and sidewalks. That interest sometimes justifies
restrictions on speech rights.
For example, the City can pass
laws making it illegal to stand in the middle of the street, or to
block pedestrians on sidewalks. Those laws are valid, even when
enforced against a person who wants to speak in that street or on
that sidewalk. The City may also establish temporary regulations for
a specific event to address the particular public safety concerns
related to that event. For example, a particular event may generate
much heavier pedestrian traffic than normal.
Furthermore, the
police have a duty to protect people exercising their free speech
rights from violence aimed at them by a hostile
audience.
C. Symbolic Speech/Expressive
Conduct
Protected _expression_ is not limited to the spoken
or written word. People may communicate a message through expressive
conduct, such as wearing an armband, or burning the United States
flag, a draft card, or an effigy.
A person�s conduct is
expressive if he or she intends to convey a particularized message,
and if it is very likely that people viewing the conduct will
understand the message.
Any government attempt to
restrict such expressive conduct must be unrelated to the
suppression of free speech. For example, the government could
validly pass a law making it illegal to burn anything (including the
American flag) in a particular place due to the fire hazard. Such a
law is not aimed at speech, but rather at public safety. On the
other hand, the government cannot validly ban the burning of the
flag simply because it believes that burning the flag is
unpatriotic.
Based on those principles, courts have held that
many instances of expressive conduct were protected, even though the
conduct ridiculed government or religious leaders, religious
beliefs, or otherwise seriously offended many
people.
D. Fighting Words
As noted above,
�fighting words� are not protected by the First Amendment, so the
government can treat them as disorderly conduct or a breach of the
peace. Fighting words are defined as personal insults: (1) directed
at a particular person or small group of people, (2) inherently
likely to create a violent reaction, and (3) that play no role in
the _expression_ of ideas.
It is not enough that the words are
very insulting or highly offensive or arouse some people to anger.
Also, words are not fighting words if they are spoken to a crowd.
Listeners are expected to turn their heads and ignore such
speech.
Whether particular speech constitutes fighting words
depends on the circumstances of the situation. However, even when
speech is extremely annoying or offensive to listeners, courts have
been very tolerant and protective of such speech. In one case, a
door-to-door missionary played for two men a recording that attacked
the men�s religion. The men became incensed and were tempted to
strike the missionary. The United States Supreme Court held that the
missionary�s speech (the recording) was not fighting
words.
In another case, demonstrators outside an abortion
clinic held signs that identified the clinic as �the killing place.�
The court held that the signs were not fighting words. Although very
offensive to people entering the clinic, the words were not
inherently likely to cause an immediate breach of the
peace.
Expressive conduct is also subject to the fighting
words analysis. As with traditional speech, however, courts are very
protective of such symbolic speech. For example, the United States
Supreme Court held that a law was unconstitutional that made it
illegal to �desecrate a venerated object� such as a flag, if the
desecrator knew it would seriously offend observers. The court
overturned the conviction of a man who burned an American flag in
protest.
Similarly, courts have held that the display,
ridicule, and even burning of effigies of public figures do not
amount to fighting words.
However, there are limits. In a
recent case a group of protesters formed a semicircle around a woman
and for six minutes shouted at her that she was �a whore, harlot,
and Jezebel.� A court held that those were fighting words under the
circumstances. Notably, the words were directed specifically at the
woman.
In another case a man, in a face to face conversation,
became angry and called the other man a �lying m_____f____.� That
led to a physical fight. The court held that to be a clear example
of fighting words.
E. Interference with Other People�s
Free Speech Rights
Speakers in a speech event have a
constitutional right not to have their message interfered with by
other speakers. A physical intrusion is such an unconstitutional
interference. For example, the sponsor of a private parade cannot be
forced to allow in the parade a float that communicates a message
with which the sponsors disagree. Also, if a group reserved public
space for a silent candlelight vigil, it would be improper for the
government to grant a rock band a permit to hold a concert right
next to the vigil.
Such interference could also include
stalking a speaker in an intimidating way or trying to block his
sign with an even larger sign.
Depending on the location and
the circumstances, heckling or shouting down of a speaker may
constitute an infringement on that speaker�s free speech
rights.
F. Interference from Public Property with Other
People�s Constitutional Rights on Private Property
The
government is justified in restricting speech aimed at unwilling
listeners if the listeners are a �captive audience,� meaning they
cannot conveniently avoid the speech by turning their heads or
walking away. Under this principle, courts have upheld laws
requiring protesters to keep their volume down near hospitals,
courthouses, and private residences, in order not to disturb people
in those private places. Courts have also upheld bans on
demonstrators entering into churches without consent, but courts
generally have not upheld efforts to prohibit protesters from
demonstrating on the sidewalk in front of places of worship (except
to the extent protesters block access to the church or their noise
penetrates into the church).
G. Risk of
Violence
The United States Supreme Court has said: �A
function of free speech . . . is to invite dispute. It may indeed
best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with the conditions as they are, or even
stirs people to anger. Speech is often provocative and
challenging.�
It is true that listeners sometimes
dislike the message of a speaker, lose their temper, and become
violent. However, in such situations the speakers retain their
constitutional right to speak (short of �fighting words�), and it is
the duty of the police to protect the speakers and deal with the
violent listeners. Courts reject a �heckler�s veto� that would
silence a speaker because of a hostile audience
reaction.
On rare occasions, the government may have
such an expectation of violence that it will impose additional
restrictions on how or where speech can occur. For example, if two
groups with strongly opposing viewpoints that have a history of
violence intend to hold rallies next to each other, the police may
require them to remain a safe distance apart to reduce the risk of
violence.
Similarly, if members of a group have a history of
blocking access and/or engaging in physical violence while
exercising their free speech rights, restrictions such as �buffer
zones� may be
appropriate.
