Today's Article
Freedom does not
mean we have the
right to take away
the rights of others.
mean we have the
right to take away
the rights of others.
The American Spark
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Report Considers Exceptions To The First Amendment
By Cliff Montgomery - May 26th, 2007
In discussing our first amendment freedoms, a Congressional Research Service (CRS) report updated on
Apr. 26th, 2007, reminds us that the freedom to say or act as we please does not give us the right to perform
actions which take away the rights of others.
We quote from the report below:
"The First Amendment to the United States Constitution provides that 'Congress shall make no law...abridging
the freedom of speech, or of the press...' This language restricts government both more and less than it would
if it were applied literally. It restricts government more in that it applies not only to Congress, but to all branches
of the federal government, and to all branches of state and local government. It restricts government less in
that it provides no protection to some types of speech and only limited protection to others.
"This report provides an overview of the major exceptions to the First Amendment--[or] of the ways that the
Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only
limited protection for some types of speech.
"The Court has...decided that the First Amendment provides less than full protection to commercial speech,
defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and
television, and public employees’ speech.
"Even speech that enjoys the most extensive First Amendment protection may be subject to 'regulations of the
time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication.'
"And, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis
of its content if the restriction passes 'strict scrutiny,' i.e., if the government shows that the restriction serves 'to
promote a compelling interest' and is 'the least restrictive means to further the articulated interest.'
"'The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its
protection does not end at the spoken or written word.' Thus wrote the Supreme Court when it held that a
statute prohibiting flag desecration violated the First Amendment.
"Such a statute is not content-neutral if it is designed to protect 'a perceived need to preserve the flag’s status
as a symbol of our Nation and certain national ideals.'
"By contrast, the Court upheld a federal statute that made it a crime to burn a draft card, finding that the
statute served 'the Government’s substantial interest in assuring the continuing availability of issued Selective
Service certificates,' and imposed only an 'appropriately narrow' incidental restriction of speech. Even if
Congress’s purpose in enacting the statute had been to suppress freedom of speech, 'this Court will not strike
down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.'
"In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an ordinance that prohibited the placing
on public or private property of a symbol, such as 'a burning cross or Nazi swastika, which one knows or has
reasonable grounds to know arouses anger, alarm or resentment in others, on the basis of race, color, creed,
religion or gender.'
"Read literally, this ordinance would clearly violate the First Amendment, because, '[i]f 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 this case, however, the Minnesota Supreme Court had construed the ordinance to apply only to conduct
that amounted to fighting words. Therefore, the question for the Supreme Court was whether the ordinance,
construed to apply only to fighting words, was constitutional.
"The Court held that it was not, because, although fighting words may be proscribed 'because of their
constitutionally proscribable content,' they may not 'be made the vehicles for content discrimination unrelated
to their distinctively proscribable content.'
"Thus, the government may proscribe fighting words, but it may not make the further content discrimination of
proscribing particular fighting words on the basis of hostility 'towards the underlying message expressed.'
"In this case, the ordinance banned fighting words that insult 'on the basis of race, color, creed, religion or
gender,' but not 'for example, on the basis of political affiliation, union membership, or homosexuality...The First
Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on
disfavored subjects.'
"This decision does not, of course, preclude prosecution for illegal conduct that may accompany cross burning,
such as trespass, arson, or threats. As the Court put it: 'St. Paul has sufficient means at its disposal to prevent
such behavior without adding the First Amendment to the fire.'"
By Cliff Montgomery - May 26th, 2007
In discussing our first amendment freedoms, a Congressional Research Service (CRS) report updated on
Apr. 26th, 2007, reminds us that the freedom to say or act as we please does not give us the right to perform
actions which take away the rights of others.
We quote from the report below:
"The First Amendment to the United States Constitution provides that 'Congress shall make no law...abridging
the freedom of speech, or of the press...' This language restricts government both more and less than it would
if it were applied literally. It restricts government more in that it applies not only to Congress, but to all branches
of the federal government, and to all branches of state and local government. It restricts government less in
that it provides no protection to some types of speech and only limited protection to others.
"This report provides an overview of the major exceptions to the First Amendment--[or] of the ways that the
Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only
limited protection for some types of speech.
"The Court has...decided that the First Amendment provides less than full protection to commercial speech,
defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and
television, and public employees’ speech.
"Even speech that enjoys the most extensive First Amendment protection may be subject to 'regulations of the
time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication.'
"And, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis
of its content if the restriction passes 'strict scrutiny,' i.e., if the government shows that the restriction serves 'to
promote a compelling interest' and is 'the least restrictive means to further the articulated interest.'
"'The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its
protection does not end at the spoken or written word.' Thus wrote the Supreme Court when it held that a
statute prohibiting flag desecration violated the First Amendment.
"Such a statute is not content-neutral if it is designed to protect 'a perceived need to preserve the flag’s status
as a symbol of our Nation and certain national ideals.'
"By contrast, the Court upheld a federal statute that made it a crime to burn a draft card, finding that the
statute served 'the Government’s substantial interest in assuring the continuing availability of issued Selective
Service certificates,' and imposed only an 'appropriately narrow' incidental restriction of speech. Even if
Congress’s purpose in enacting the statute had been to suppress freedom of speech, 'this Court will not strike
down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.'
"In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an ordinance that prohibited the placing
on public or private property of a symbol, such as 'a burning cross or Nazi swastika, which one knows or has
reasonable grounds to know arouses anger, alarm or resentment in others, on the basis of race, color, creed,
religion or gender.'
"Read literally, this ordinance would clearly violate the First Amendment, because, '[i]f 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 this case, however, the Minnesota Supreme Court had construed the ordinance to apply only to conduct
that amounted to fighting words. Therefore, the question for the Supreme Court was whether the ordinance,
construed to apply only to fighting words, was constitutional.
"The Court held that it was not, because, although fighting words may be proscribed 'because of their
constitutionally proscribable content,' they may not 'be made the vehicles for content discrimination unrelated
to their distinctively proscribable content.'
"Thus, the government may proscribe fighting words, but it may not make the further content discrimination of
proscribing particular fighting words on the basis of hostility 'towards the underlying message expressed.'
"In this case, the ordinance banned fighting words that insult 'on the basis of race, color, creed, religion or
gender,' but not 'for example, on the basis of political affiliation, union membership, or homosexuality...The First
Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on
disfavored subjects.'
"This decision does not, of course, preclude prosecution for illegal conduct that may accompany cross burning,
such as trespass, arson, or threats. As the Court put it: 'St. Paul has sufficient means at its disposal to prevent
such behavior without adding the First Amendment to the fire.'"