Under
the First Amendment, “Congress shall make
no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the
right of the people peacefully to assemble, and
to petition the Government for a redress of grievances.”
As the Supreme Court has explained, “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.”
(Texas v. Johnson)
Though the text of the First Amendment limits
only Congress’ ability to abridge speech,
the courts have interpreted the First Amendment
as being applicable to any “state action”
by officials at any level of government. Thus,
the First Amendment pertains to regulations by
the FCC, acts of Congress, and the local police
department. Private organizations, such as private
art galleries or colleges, in contrast, are not
technically bound by the First Amendment.
“Speech” has been broadly defined
by the courts to include not only verbal expression,
but also visual art, music, theater, dance, and
other expressive conduct and non-verbal forms
of communication. However, First Amendment rights
are not absolute, and have some exceptions. Unprotected
speech includes:
Government
suppression of otherwise legal speech can be justified
only if the government can advance a compelling
reason. For example, national security concerns
might justify suppression of an article describing
military strategy in wartime. More often, free
speech cases involve claims that government regulations
are vague or overly broad, or that the government
is engaging in viewpoint
discrimination – trying to suppress
speech because of opposition to the message it
conveys. As this website details, different forms
of expression are protected to varying degrees,
often depending on where the expression occurs,
and whether the regulation is formulated or applied
to affect the content or viewpoint of the speech
in that forum. |
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