“Congress shall make no law…abridging the freedom of speech…”
These words from the First Amendment may sound absolute, and in a sense they are, but the issue is more complicated than that. For instance, while Congress may not abridge “freedom of speech,” it is clear that not all forms of speech are “free” and guaranteed constitutional protection. Also, some forms of speech may be “protected” yet still subject to some forms of governmental regulation. The New York civil rights lawyers at Dupée & Monroe understand what the government can and cannot do when it comes to matters of free speech. We help make sure that the rights of citizens are secure, and that people are allowed to express themselves within the bounds of the protections and guarantees of the First Amendment.
What is Free Speech?
It should be noted that “free speech” includes more than just words and speaking. Any type of expressive conduct may be considered speech for the purposes of the First Amendment. For instance, messages on t-shirts or bumper stickers are a form of speech. So is dancing, and even erotic dancing (stripping) may be considered a form of expression and therefore a type of protected speech. Many symbolic acts, such as flag burning, are also protected forms of speech, since they are intended to convey a certain message. The very fact that flag burning is so emotional and controversial only proves that it is a very powerful form of speech, and therefore worthy of constitutional protection, according to the courts.
Freedom of Speech under the First Amendment
Not all speech is considered “protected speech” and guaranteed protection from government interference. Over the years, the U.S. Supreme Court has identified several categories of speech which are not protected. When speech is unprotected, the government can make laws outlawing that type of speech, and people engaging in such speech could be arrested, fined, jailed, or otherwise punished. Unprotected categories include:
- Defamation – Speaking or publishing false facts about people that damages their reputation is not protected speech. This area gets especially complicated when the subject is a public figure.
- Obscenity – While there is no objective test for what amounts to obscenity, judges generally “know it when they see it.”
- Child Pornography – Even simulated acts or depictions may be prosecuted.
- National Security – Advocating the violent overthrow of the government or making terroristic threats is not protected.
- Fighting Words – Speech designed to provoke imminent violence or “hate speech” may not be protected.
- Incitement to Riot or Panic – The proverbial example is shouting “fire” in a crowded movie theater.
In other areas of speech, the government may make some regulations regarding speech, such as placing reasonable time, place or manner restrictions on speech. Requiring you to get a parade permit before marching through the street, or prohibiting the use of sound trucks in certain neighborhoods or during certain hours, are examples of restrictions on free speech which may nevertheless be allowed. Unreasonable restrictions, or regulations which are selectively applied against certain groups or beliefs, may be challenged in court.
Government Actors Needed
The guarantees of free speech are protection against government action. This includes laws, regulations, and ordinances at all levels of government, including federal, state and municipal. Actions by non-governmental actors, on the other hand are not covered. So if your boss at work fires you based on your exercise of free speech, your rights may be limited, unless you are a public employee. Even public employees may be fired for otherwise protected speech in some instances.
While the protection of the U.S. Constitution may not cover political expression or speech in private employment, New York is one of just a few states which provides such protection by statute. New York Labor Law section 201-d prohibits employment discrimination based on a person’s political activities outside of work. If you have been fired for your political beliefs, you may be able to sue your employer and get your job back or collect money damages. Contact our office if you believe your employer has violated this section of the law.
Protect Your Freedoms and Get Legal Help for New York Free Speech Violations
The Freedom of Speech is one of the bedrock principles of our society. Unfortunately, this right is violated time and again by police and officials at all levels of government who do not understand the law, misapply it, or simply want to silence voices they disagree with. If you have been the victim of censorship or prior restraint, if you have been arrested for engaging in a public demonstration or other protected political activity, or if you have been punished in any way for speaking your mind, contact the free speech and civil rights attorneys at Dupée & Monroe in Goshen for a free consultation on what can be done to remedy the harm done to you.