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First Amendment claims don't always win

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Gene Policinski
May 29, 2010

The First Amendment’s five freedoms ensure that government doesn’t run roughshod over our religious-liberty and free-expression rights.


But sometimes, the First Amendment doesn’t win out.


Thankfully, it’s not all that often. When it does happen, generally the situation involves balancing one of the First Amendment freedoms – religion, speech, press, assembly and petition – against other parts of the Bill of Rights.


The threat of terrorism is one such area. Critics of unrestrained speech by our enemies – and sometimes, of opponents at home – have observed that the First Amendment is not "a suicide pact.”


At other times, constitutional collisions involve personal safety, public health, individual privacy or religious rights.


The U.S. Supreme Court just days ago refused to rehear a Colorado Supreme Court decision involving a ban on actors' smoking on stage as part of their performances. The state court, in a 6-1 ruling, ranked public-health concerns over the free-speech argument raised by three creative groups.


In its decision, the Colorado court acknowledged the free-expression argument, but said, “Even assuming that theatrical smoking actually can amount to protected expressive conduct under some circumstances, the law doesn’t infringe on free speech because it’s 'content neutral'" – not aimed at one brand or type of cigarette or cigar, presumably – and was “narrowly tailored to serve the state’s substantial interest in protecting the public health and welfare.”


“Smoking” of a different character also was involved a recent decision in the 10th U.S. Circuit Court of Appeals, where judges said founders of a self-styled church could not use the “cover of religion to pursue secular drug trafficking activities.”


The founders of the Church of Cognizance, which calls marijuana a deity and a sacrament, were arrested in 2006 and charged with crimes related to drug possession and distribution. In their appeal, they claimed the First Amendment protected them from government interference in their sincerely held religious beliefs and practices. Not so, said the 10th Circuit. A unanimous three-judge panel said, “As the district court noted, numerous pieces of evidence in this case strongly suggest that the ... marijuana dealings were motivated by commercial or secular motives rather than sincere religious conviction.”


There's a short list of exceptions to First Amendment protection – true threats, fighting words, criminal solicitation, libel, obscenity, child pornography and perjury among them. And government can regulate the time, place and manner of expression. A vigorous political speech that is highly protected when delivered at noon in the public square likely would not be – though the content is the same – when shouted at 3 a.m. under your bedroom window.


Recently, two important cases tested First Amendment freedoms. One involved spending-as-speech in the political arena, the other the legitimacy of a ban on distasteful videos in which animals are killed. In both instances, unfettered speech was the victor.


This fall, the U.S. Supreme Court will consider a challenging case involving a Kansas family group, organized as a church, which regularly protests at the funerals of men and women killed while serving in the U.S. military. They believe such deaths are God’s punishment of America for tolerating homosexuality.


In 2006, the group protested at the funeral of 20-year-old Marine Matthew Snyder – reportedly carrying signs that read, “Thank God for Dead Soldiers” and “You’re going to Hell.” In a brief filed May 26, lawyers for the Marine’s father, Albert Snyder, said the group’s protest interfered with the funeral, “a religious ceremony entitled to constitutional protection." They also said the group’s “freedom of speech should have ended where it conflicted with Mr. Snyder’s freedom to participate in his son’s funeral, which was intended to be a solemn religious gathering.”


It’s likely that the Kansas group’s tactics and message offend most Americans. But it’s also true that the words spoken in national debates over most important issues throughout the nation’s history have offended many, from civil rights to women’s suffrage, from health-care policy to taxation, to name but a few.


Sometimes we need to hear fully the ideas we dislike if only the better to oppose them.


Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org

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