Scenarios: Free Speech Edition 2018

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1 Scenarios: Free Speech Edition First Amendment Protected Rights I. Freedom of speech II. (no) Establishment of Religion III. Free exercise of religion IV. Freedom of the press V. Right to Peaceably Assemble VI. Right to petition the Government 2. Freedom of speech you can voice your opinions using words, symbols or actions I. Congress shall make no law abridging the freedom of speech. II. Core political speech is highly protected (speech criticizing the government, insisting on reform, etc) it is purely expressive in nature and serves an important function. III. Time Manner Place restrictions are the restrictions placed on your speech. It has to be made at an appropriate time, manner, and place. i. For example, if you plan on using an amplification system or if you plan on marching a parade down a street in protest, you typically have to get a permit for that because it is incompatible with normal activity of a particular place at a particular time. Standing on a public side walk holding a sign and shouting typically does not require a permit. IV. Time, manner, place restrictions must: (Ward v. Rock Against Racism; 1989) i. Be content neutral (if it forces you to change how or what you say, then it isn t content neutral) ii. Be narrowly tailored iii. Serve a significant governmental interest iv. Leave open ample alternative channels for communication 3. Freedom of the Press the government cannot (generally) censor information in newspapers, online news sources, TV news broadcasts, etc Notes TMCEC Regional Judges Program: Longview Mark Goodner

2 Scenarios: Free Speech Edition 2018 I. Congress shall make no law abridging the freedom of the press. II. Press means every sort of publication which affords a vehicle of information and opinion. III. Like Freedom of Speech, there are some categories of publications that are not protected. Libel is a good example of an unprotected publication. i. Libel a published false statement that is damaging to a person s reputation 4. Right to Peaceably Assemble you can gather in a group I. Congress shall make no law abridging the right of the people peaceably to assemble. II. The right of a group of people to come together to express, promote and defend their ideas. A lot of times thought of as your right to protest (in conjunction with speech) III. Time, manner, place restrictions must: (Ward v. Rock Against Racism; 1989) i. Be content neutral (if it forces you to change how or what you say, then it isn t content neutral) ii. Be narrowly tailored iii. Serve a significant governmental interest iv. Leave open ample alternative channels for communication IV. A Government cannot punish speech for its content unless the speech i. Is intended to produce imminent lawless action, AND ii. Is likely to incite or produce such action 5. Right to Petition the Government you can criticize the government, and you can complain about policies that affect you negatively and ask for change I. Congress shall make no law abridging the right of the people to petition the Government for a redress of grievances. II. Ex: Submitting petitions to your local government or school board; We the People initiative with the White Notes TMCEC Regional Judges Program: Longview Mark Goodner

3 Scenarios: Free Speech Edition 2018 House where citizens can submit proposals/petitions to the federal government III. Doesn t necessarily mean that the government has to act on it though 6. Takeaways I. 1st Amendment protects you from government action II. The rights tend to overlap III. Restrictions (time, manner, place) IV. This whole area of law is very complicated Quick Scenarios: Do these restrictions violate the First Amendment? 1. A city prohibiting citizens to post signs with political opinions written on them in their windows, but still permits signs like for sale or signs with business names written on them to be posted in windows. 2. A city only allows billboards to be used for advertising. 3. A city requires that any group wishing to have a concert or rally in the park must use city provided sound systems and technicians to control the volume of concerts in the park. 4. A city prohibits posting campaign signs in residential yards any earlier than 60 days before an election. Quick Scenarios: Do these restrictions violate the First Amendment? 1. Someone complains that your Facebook profile picture is inappropriate. Facebook removes the photo and bans you from the site. 2. The government bans all books that criticize the excessive use of force by police officers. 3. The government shuts down a blogger s website after she posts criticisms about President Trump. 4. You use your cell phone to record a police officer arresting someone. You are arrested and charged with obstruction of justice. Right to Assemble Scenario: Does restriction violate? National Socialist Party of America v. Village of Skokie: Notes TMCEC Regional Judges Program: Longview Mark Goodner

4 Scenarios: Free Speech Edition 2018 Skokie, Illinois s population is over 50% Jewish. Thousands of Skokie s citizens were survivors of Nazi concentration camps. The National Socialist Party of America (Nazi Party) wanted to have a parade in in the Skokie. They would be wearing their Nazi Party uniforms, be displaying swastikas, and be distributing pamphlets that would promote hatred against persons of Jewish faith or ancestry. They applied for a permit with the village. A local trial court filed a court order prohibiting the group from engaging in those activities (This type of court order is called an injunction). Notes TMCEC Regional Judges Program: Longview Mark Goodner

For example, a local ordinance prohibiting all picketing except for labor picketing connected to a place of employment is unconstitutional because it regulates speech based on whether it is about

5 RESTRICTIONS What the government can t regulate: The government generally can t regulate or restrict speech based on its content. Regulation of speech must be unrelated to both the ideas and the views expressed. 1 Restrictions based on the ideas or subject matter involve regulating an entire topic of speech. For example, a local ordinance prohibiting all picketing except for labor picketing connected to a place of employment is unconstitutional because it regulates speech based on whether it is about labor. 2 Restrictions based on viewpoint affect only one perspective within a larger subject. For example, a public university may not deny funds to a student publication specifically because it holds a Christian viewpoint, while exempting other religious publications from these same restrictions. 3 Some content-based restrictions may be allowed if they are narrowly tailored to serve a compelling government interest and are the least restrictive way of achieving that interest. 4 What the government can regulate: Some categories of speech are considered outside of First Amendment protection: obscenity; defamatory language that is false and is intended to harm the reputation of another person; and fighting words, or speech that incites imminent lawless action. For speech outside of these categories, generally the government can place time, place, and manner restrictions on speech. This kind of restriction does not depend on the subject of the speech, but on the way it is expressed, and is often created to preserve public order, such as preventing parades from clashing with rush-hour traffic. These regulations must be narrowly tailored to serve a significant government interest, must be content neutral, and must leave open ample alternative channels of communication. 5 LAWS The right to protest is protected by both the U.S. Constitution and the Texas Constitution. The First Amendment of the U.S. Constitution states that Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. 15 The Texas Constitution, in Article I, sections 8 and 27 protects the liberty to speak, write or publish opinions on any subject, and the right to assemble. 16 YOUR RIGHTS IN GENERAL These provisions protect your right to march, leaflet, parade, picket, circulate petitions and ask for signatures, and other forms of peaceful protest. You have the right to express your views in these ways regardless of how unpopular or controversial they may be. Although these rights are afforded strong protection, how the rights are exercised may be regulated. IF YOUR RIGHTS ARE BEING VIOLATED If you believe that you are being denied your right to protest, contact the ACLU of Texas. Visit our website at and click Request Legal Assistance to submit a complaint. RESOURCES For more information: CONTACT US ACLU Foundation of Texas P.O. Box 8306, Houston, TX (713) ; (713) fax Last updated on Jan. 21, 2011 I BELIEVE IN A TEXAS... WHERE FREE SPEECH IS PROTECTED FREE SPEECH AND THE RIGHT TO PROTEST

6 THE RIGHT TO PROTEST The right to protest is a long-standing protection afforded by the U.S. and Texas constitutions. This right is contained both in the freedom of speech and in the freedom to assemble, which protect not only the ability to verbalize protests and engage in symbolic speech such as wearing an armband, but to arrange peaceful marches and protests on certain public lands. These rights are not unconditional. Because the government has an interest in maintaining peace and public order, it may restrict some protest activities in certain ways. This Know Your Rights fact sheet is intended for people who want to exercise their right to protest in order to help understand the status of the current law on this topic. However, this sheet does not cover every nuance of the law surrounding protest rights and should not be taken as legal advice. If you have specific legal questions, consult an attorney or the ACLU of Texas. IF YOU ARE APPROACHED BY LAW ENFORCEMENT Be conscientious about your actions. Don t argue: Anything you say or do can be used against you. Arguing or fighting may give police an excuse to arrest you. On Foot: If you are stopped while you are on foot and have not been detained, you are not required to answer officers questions. Searches: The police may pat down your clothing if they suspect that you are concealing a weapon. Don t resist or touch the officer, but make it clear that you don t consent to any further searches. Being Detained: If the police detain you, you may be required to provide your name. Ask if you are under arrest. If so, ask to see a lawyer. If not, ask if you are free to leave. Police Complaints: If you think the police have acted outside their authority, don t protest or resist on the scene. Write down officers names, badge numbers, and patrol car numbers. File a written complaint with the police and the ACLU. Q&A Where can I protest? The constitutional protection offered to protest varies on the location, or forum, of the protest. Courts have broken public lands down into different categories: Public streets, sidewalks, and parks: These public areas have been devoted by a long tradition to assembly and debate.6 Here, governmental regulation of speech is very limited. 7 Areas specifically opened for speech: These locations are not traditionally open for speech, but the government has specifically designated them for some public discourse. Examples include public universities, public schools and public meetings. These areas generally have an intermediate level of protection from regulation, although sometimes they receive the highest protection, like the first category. 8 Private government property: This includes all other public property that has not historically been a place of public expression and has not specifically been designated one, such as cityowned property leased to a private group. Although technically public property, it does not qualify as a public forum. 9 Government may restrict speech there so long as the restrictions are reasonable and not viewpoint-based. 10 Can I protest on private property? No. With limited exceptions, First Amendment rights apply only to the government and government property. Private property owners can control what happens on their property and may prevent people from protesting on their land. However, adjoining public property, such as streets and sidewalks, may provide an appropriate alternate venue. Can I be prevented from protesting if my views are controversial? No. Restrictions on speech must generally be unrelated to the content of the speech and may not be viewpointbased. Even if your views are unpopular, controversial, or critical of the government, you still have the right to express them through speech and assembly. Do I need to get a permit? You might. Because of concerns like obstruction of traffic and maintenance of public order, many localities require a permit to hold a parade or a march. Check with your local government. How far in advance should I apply for a permit? Courts have approved requirements that a permit be requested a certain number of days before the event. However, the requirement is limited to a few days, and the deadlines must not be so unreasonable so as to burden your rights. In one case, a court held that a 10-day requirement placed a burden on expression. 11 Can I be charged for the permit? Yes. It is permissible to charge fees for the permit application, but the fees may not be arbitrary and may not be imposed in order to discourage applications. The fees must only cover the administrative expenses associated with the application and permit. 12 For what reasons can my permit be denied? The deciding body must not have complete discretion to deny a permit. There must be concrete standards regulating the review of an application. 13 The standards must be narrow, objective, and definite. 14 Are there different regulations for non-citizens? The Patriot Act significantly altered First Amendment rights for non-citizens. Section 215 allows surveillance and investigation of people based on their First Amendment activities. Non-citizens who are not permanent residents are subject to harsher penalties if their actions are labeled domestic terrorism. Immigrants who engage in protest should be aware of law enforcement s increased authority and prepare accordingly. 1 Horton v. City of Houston, 179 F.3d 188, 193 (5th Cir. 1999). 2 Carey v. Brown, 447 U.S. 455, (1980). 3 Rosenberger v. Univ. of Va., 515 U.S. 819, 831 (1995). 4 R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992). 5 Perry Educ. Ass n v. Perry Local Edcators Ass n, 460 U.S. 37, 45 (1983). 6 Id. 7 Id. 8 Justice for All v. Faulkner, 410 F.3d 760, (5th Cir. 2001). 9 Int l Soc y for Krishna Consciousness v. Schrader, 461 F.Supp. 714, (N.D. Tex. 1978). 10 Ark. Educ. TV Comm n v. Forbes, 523 U.S. 666, (1998). 11 SEIU v. City of Houston, 542 F. Supp. 2d 617, (S.D. Tex. 2008), rev d on other grounds, 595 F.3d 588 (5th Cir. 2010). 12 Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, (1992). 13 Lakewood v. Plain Dealer, 486 U.S. 750, (1988). 14 SEIU, 595 F.3d at U.S. CONST. amend. I. 16 TEX. CONST. art. 1, 8, 27.

KNOW YOUR RIGHTS: PROTESTS Where can I engage in free speech activity? Your rights are strongest in traditional public forums, such as streets, sidewalks, and parks.

access to the government building. Private property owners can set rules for speech on their property.

7 KNOW YOUR RIGHTS: PROTESTS Where can I engage in free speech activity? Your rights are strongest in traditional public forums, such as streets, sidewalks, and parks. And you likely have the right to speak out on other public property, like plazas in front of government buildings, as long as you are not disrupting the purpose that property was designed for, like access to the government building. Private property owners can set rules for speech on their property. The government may not restrict your speech if it is taking place on your own property or with the consent of the property owner. Do I need a permit before I engage in free speech activity? Not usually. You don t need a permit to march in the streets or on sidewalks as long as marchers stay on the sidewalks, obey traffic and pedestrian signals, and refrain from obstructing passersby. However, certain types of events require permits. For example: A march or parade that require blocking traffic or street closure A large rally requiring the use of sound amplifying devices A rally at certain designated parks or plazas. If a local government requires a fee for permits, such as a security deposit or a charge to cover overtime police costs, it should allow a waiver for those that cannot afford the charge. Can the government restrict my speech rights because of what I say? No. Generally, the First Amendment prohibits restrictions based on the content of speech. However, police and other government officials are allowed to place certain narrow restrictions on the exercise of speech rights for example, by requiring permits for large groups using public

8 parks. Any such restrictions must apply equally to all speech regardless of its point of view. This means that counter-demonstrators also have free speech rights. They have the right to be present and to voice their opposition. But they should not be allowed to physically disrupt the event they are protesting. Police are permitted to keep antagonistic groups separated but should allow them to be within sight and sound of one another. Do I have the right to photograph or videotape during protests? Yes. When you are lawfully present in any public space, you have the right to photograph anything in plain view, including federal buildings and the police. On private property, the owner may set rules about photography or video. Police officers may not confiscate or demand to view your photographs or video without a warrant, nor may they delete data under any circumstances. However, they may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. What do I do if I get stopped by the police? Stay calm. Don t argue, resist, or obstruct the police, even if you believe they are violating your rights. In some states, you must give your name if asked to identify yourself, but you do not have to provide an ID or other paperwork. Make sure to keep your hands visible. Point out that you are not disrupting anyone else s activity and that the First Amendment protects your actions. Ask if you are free to leave. If the officer says yes, calmly walk away. If you are under arrest, you have a right to ask why. Otherwise, say you wish to remain silent and ask for a lawyer immediately. Don t say anything or sign anything without a lawyer. You have the right to make a local phone call, and if you re calling your lawyer, police are not allowed to listen. Can I be searched? You never have to consent to a search of yourself or your belongings. If you do explicitly consent, it can affect you later in court. Police may pat down your clothing if they suspect you have a weapon and may search you after an arrest. What do I do if my rights have been violated? When you can, write down everything you remember, including the officers badge and patrol car numbers and the agency they work for. Get contact information for witnesses. Take photographs of any injuries. Once you have this information, you can file a written complaint with the agency s internal affairs division or civilian complaint board.

Scenarios: Free Speech Edition 2018

Scenarios: Free Speech Edition 2018 1. First Amendment Protected Rights I. Freedom of speech II. (no) Establishment of Religion III. Free exercise of religion IV. Freedom of the press V. Right to Peaceably Assemble VI. Right to petition