Other Civil Liberties Issues October 5, 2017

Freedom of Expression

Anti-Government Speech The courts have held that the government cannot restrict political expression because of its content unless it has a compelling interest that cannot be achieved by less restrictive means. Political speech, with few exceptions, such as threatening to kill the president, enjoys near absolute constitutional protection. This is a very high standard.

Hurtful Speech ““If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” In 2011, the U.S. Supreme Court ruled that Fred Phelps and his Westboro Baptist Church congregation have a constitutional right to protest at the funerals of dead servicemen and women.

Hate Speech In many countries, “hate speech” directed at particular groups (Jews, gay people, Africans, women, etc.) as well as holocaust denial are illegal. In Germany, holocaust deniers face as much as three years in prison. In the United States, holocaust denial is constitutionally protected.

Expression v. Action The Supreme Court distinguishes between expression and action. Protestors do not have a constitutional right to disrupt traffic, block sidewalks, or impede access to public places. In the Phelps Case, the Court made clear that local governments can reasonably restrict the time, place, and manner of demonstrations at funerals.

FYI—Fred Phelps died in 2014

Symbolic Expression Symbolic expression, such as flying the flag or burning a cross, enjoys the same constitutional protection as speech or written communication.

Texas v. Johnson (1989) In 1989, the Supreme Court overturned a Texas flag desecration law under which Gregory Lee Johnson was convicted for burning an American flag at the 1984 Republican convention in Dallas, ruling that Johnson's action was a form of symbolic speech.

Right to Bear Arms

2nd Amendment “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

District of Columbia v. Heller Historically, the courts interpreted the amendment to guarantee the right of states to maintain an armed militia rather than protecting an individual’s right to own a firearm. In 2008, however, the U.S. Supreme Court voted 5-4 to overturn a District of Columbia ban against handgun possession, declaring that the Second Amendment protects an individual’s right to possess a firearm in the home for purposes of self-defense.

Right Not Unlimited The Court made clear that the right to bear arms is not absolute and that the ruling against the ban on handgun ownership should not cast doubt on the constitutionality of “longstanding prohibitions on possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

What You Have Learned Under what circumstances can government restrict free expression? Can government restrict expression that offends people or hurts their feelings? Do the courts distinguish between speech and action? Does the First Amendment protect symbolic speech? Do individuals have a right to bear arms? Is that right absolute?