A Primer on Free Speech Activities in Public Places

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Is it Speech, Because If It Isn't, Then First Amendment Protections Don't Apply

The right to freedom of speech has been found to protect individuals using their voices to communicate to others. That seems like a no-brainer application of the First Amendment. Sometimes the question is more complicated. What about carrying a picket sign? Again, today it seems clear. But sixty years ago, the Supreme Court viewed picketing as a combination of a constitutional right of expression with a physical activity, and intimated that less protection might flow to activities that combine speech with conduct. For the most part, today, such distinctions work little or no difference. A distinction arises in the instance where a person with a message seeks to express that message without the use of words. A classic example is the instance of burning a draft registration card as a means of expressing opposition to war. The First Amendment may protect symbolic acts as speech where there is an intent to speak and a likelihood that the intended message will be understood.


Is It a Public Forum, Because If It Isn't, Then Little Constitutional Protection May Exist

The Supreme Court has taught that speech protections arise, in part, depending on where the speech takes place. Standing in your neighbor's living room to protest against higher property taxes, no constitutional violation will be found when you are arrested for trespass, stopped from speaking and incarcerated. So the first important distinction among places is whether the property in question is owned or controlled by a government entity. Private property falls outside of the protective scope of the First Amendment. Streets, sidewalks, and parks, the Court has explained, are the paradigm of a public forum. Precisely where we think protests and speeches will occur. There, the power of the Government to limit expression is small. On the other hand, many places owned by governments, including military bases, government offices, courthouses, are not public forums for speech, and restrictions can be quite severe, so long as they do not mask disapproval of a particular viewpoint.


Content Control? Viewpoint Disapproval?

Assuming that its speech that you are engaged in, and a public forum where you do, the remaining issue is whether, to what extent, and how, the government may regulate your expressive activities. First, a restriction that favors one side of a topic is virtually certain to be found unconstitutional: "No Speakers Opposing Tax Increases" is just an invitation by the Government to be sued. Second, outside of streets, sidewalks and parks, the government can create forums of a limited nature. Only allowing student clubs on campus, does not discriminate on viewpoint, nor even on content, just speaker identity. In specially created forums, such restrictions are permissible. Third, content restrictions in public forums are seldom constitutional. "No election protests" doesn't protect or punish one view, but has no reasonable justification on a public sidewalk. Fourth, time, place and manner of speech restrictions, not masking dislike of content or view, are permissible.


Thinking of Conducting a Demonstration or Protest?

If a successful event is your goal, groundwork well in advance is always advisable. Depending on your community, regulation of public demonstrations and protests may involve obtaining a permit. Obtaining a permit may involve a written application and other prerequisites. Well in advance, contact police and/or streets and parks departments and inquire whether permits are required and how they may be obtained. If you are planning an event of great significance or importance, consulting an attorney aware of applicable regulations can spare you headaches, or worse, later.

Additional Resources

http://www.aclu.org/free-speech/know-your-rights-demonstrations-and-protests https://www.rutherford.org/files_images/general/I09_Free-Speech_2002.pdf https://www.liberty.edu/media/9980/attachments/resource_picket_parade_demonstrate_witness_chptr_14.pdf

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