Understanding Your First Amendment Right to Free Speech in Pennsylvania

Our constitutional right to free speech is again at the forefront of the news with the tragic death of Charlie Kirk.  We often encounter misunderstandings regarding the scope and limitations of the First Amendment's guarantee of free speech. It's a right we cherish, but one that is not absolute. This blog post aims to clarify the core principles of free speech and provide practical examples of both unlawful restraints and permissible restrictions on its exercise.

The First Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, prohibits the government from unduly restricting freedom of speech.

It’s important to understand that the First Amendment speaks to government restrictions on speech.  It doesn’t apply in the same way to free speech restrictions imposed by non-governmental authorities. This protection extends beyond mere spoken words to encompass various forms of expression, including written materials, symbolic acts, and artistic creations.

Unlawful Restraints on Free Speech

A core tenet of First Amendment jurisprudence is that government restrictions on speech are presumptively unconstitutional. Here are some examples of restrictions that are likely to be deemed unlawful:

• Prior Restraints: censorship that prevents speech from occurring in the first place is heavily disfavored. While there are narrow exceptions (e.g., to prevent the publication of troop movements during wartime), prior restraints face a very high burden of justification.

• Vague or Overbroad Laws: Laws that are so vaguely worded that ordinary people cannot understand what conduct is prohibited, or that sweep too broadly and restrict protected speech along with unprotected speech, are unconstitutional.

• Viewpoint Discrimination: The government cannot restrict speech simply because it disagrees with the speaker's viewpoint. Regulations must be content-neutral, meaning they cannot be based on the ideas or opinions being expressed.

Examples of Restricted Speech Deemed Unconstitutional

The Supreme Court has consistently held that the government cannot suppress an idea simply because it's offensive or disagreeable.

Here are some examples of governmental restrictions on free speech that were found to be unconstitutional.

Texas v. Johnson (1989)

This landmark Supreme Court case involved flag burning. Gregory Lee Johnson was convicted under a Texas law for burning an American flag during a protest. The Court overturned his conviction, ruling that flag burning is a form of symbolic speech protected by the First Amendment. The Court reasoned that the government's interest in preserving the flag as a symbol didn't outweigh the right to political expression.

Tinker v. Des Moines School District (1969)

This case addressed the free speech rights of students in public schools. Mary Beth Tinker and other students were suspended for wearing black armbands to school to protest the Vietnam War. The school argued it was a disruption. The Supreme Court disagreed, famously stating that students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court established that a school can only restrict student speech if it causes a "material and substantial disruption" to school operations.

Brandenburg v. Ohio (1969)

This case established the modern test for what constitutes unprotected incitement to violence. Clarence Brandenburg, a Ku Klux Klan leader, was convicted under an Ohio law for a speech he gave at a rally. The Supreme Court overturned his conviction, creating a two-part test for incitement: the speech must be directed to inciting or producing imminent lawless action and be likely to incite or produce such action. The Court found that Brandenburg's abstract advocacy of violence was not the same as preparing a group for violent action, and was therefore protected.

Permissible Restrictions on Free Speech

While the First Amendment provides broad protection, certain categories of speech receive less protection or no protection at all. Restrictions in these areas are more likely to be upheld. These include:

• Incitement to Violence: Speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action is not protected. (Think shouting "Fire!" in a crowded theater when there is no fire).

• Defamation: False statements of fact that harm someone's reputation are not protected. The standard for defamation varies depending on whether the person allegedly defamed is a public figure or a private individual.

• Obscenity: Material that appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, or scientific value is not protected.

• Commercial Speech: While commercial speech (advertising) is protected, it receives less protection than other forms of speech. Restrictions on false or misleading advertising are permissible.

Free Speech in Specific Contexts

The application of free speech principles can vary depending on the context. Here are a few examples:

• Workplace: Employers have a legitimate interest in maintaining a productive and orderly work environment. They can restrict speech that is disruptive, interferes with job performance, or violates workplace policies against harassment or discrimination. However, restrictions must be carefully tailored and not be overly broad. Public sector employees often have greater free speech rights than private sector employees, especially concerning matters of public concern.

  
  

• Online Forums: Online platforms, such as social media sites, generally have the right to moderate content on their platforms. While they cannot violate the government's obligation to respect free speech, they are not bound by the First Amendment in the same way. However, some state laws may provide additional protections.

  
  

• Residential Communities (HOAs): Homeowners' associations can impose reasonable restrictions on speech in common areas, such as limitations on signage or displays. However, these restrictions must be content-neutral and serve a legitimate purpose, such as maintaining aesthetics or preventing nuisance. Restrictions on speech within a homeowner's private residence are subject to greater scrutiny.

Read: Political Yard Signs: Rights, Regulations, and Homeowners Associations in Pennsylvania

The First Amendment right to free speech is a cornerstone of American liberty. Understanding its scope and limitations is crucial for protecting our individual freedoms and fostering a vibrant public discourse. If you believe your free speech rights have been violated, it is essential to consult with an experienced constitutional rights attorney.