Balancing Freedom of Speech

           This article describes some of the meanings and symbolism of the “Lady of Justice” image that is found in the decorating of many courthouses, including the courthouse of the United States Supreme Court.  The image generally consists of a woman holding a sword in one hand and a set of balances in the other. Sometimes she is blindfolded, and other times she is not.  The image is commonly known as “Justice” and it traces its history back to ancient Egypt, Greece and Rome.  The image is commonly understood to represent fairness and impartiality of law and justice.

The image of “Lady of Justice” holds a balance in one hand.  Some sources interpret the use of the balances to mean “impartiality” in the application of the law.  Because the symbol has been used for so many years in so many different situations, it’s not entirely clear that a single, consistent defined meaning is always attributed to the balance in the woman’s hand.  But one of the tasks that is consistently faced by courts is a balancing of interests.

Here’s an example. Many schoolchildren learn at a young age that the United States Constitution provides American citizens with a right of “free speech,” where all Americans have the right to speak our thoughts and intentions without undue governmental interference.  But the right to “free speech” is not unlimited.  In our legal system, the right to “free speech” must be tempered, or balanced, against other considerations.  It’s easy to think that our constitutional right to “free speech” should give us the right to say most anything – but that’s just not the case. It’s easy to think that words don’t mean much because they are just spoken and then they disappear – and it doesn’t seem like there’s much left behind.  But there are many state and federal laws that prohibit certain kinds of speech or certain words from being spoken.

We intuitively know this.  For example, the oath administered in courts of law obligates the witnesses who give testimony to speak the truth.  If these witnesses don’t speak the truth, then they can be convicted of a crime and imprisoned – just for speaking a series of words. And if a witness is ordered to appear in court, and if that witness refuses to answer questions, then in some situations such silence can constitute contempt of court, and that witness can be imprisoned simply for refusing to speak. (This should never be confused with a person’s Fourth Amendment rights, which grants a witness or a defendant the right to remain silent in certain situations).

There is no doubt about it. Words have substantial meaning and importance.  If someone in a court proceeding says words disrespectful of a judge or the legal system, then that person could end up in jail for a few days as they are given time to think about their “contempt of court.”  Newspaper headlines sometimes carry stories of persons who “leak” important, confidential information.  Persons can make threats of all kinds, and the wrong kind of threat spoken in the wrong setting can land you in jail.  Even financial information spoken improperly by “insiders” can create problems in financial markets that can end up in prison time.  So words aren’t just “fluff” – they really do mean something, and when spoken or written they can and do have real effect.  The First Amendment right to “free speech” doesn’t allow people to make improper of threats or certain illegal statements – and if persons do make such statements, then the long history of case law interpreting First Amendment rights may not come to their aid, because there are many cases that show that the First Amendment rights of free speech can properly be limited to some degree by government.  Such limitations sometimes control the “time, place and manner” regarding the exercise of free speech.  Here’s a simple example.  If you are in a public theater watching the latest super-hero action movie, and if there’s an enormous onscreen picture showing a hero with a gun and someone says “Look – he has a gun” it’s unlikely that anybody is going to be too surprised, and in that setting a person’s first amendment rights may well protect that kind of a statement.  But there are other security-sensitive situations that we all encounter where those exact same words, “Look – he has a gun” spoken improperly and inappropriately, could raise quite a stir.  What’s the difference?  Is it the words?  No – the words in each situation were exactly the same.  But in one situation, it’s unlikely anybody would give them a second thought, but in a very different situation the person making such a statement could quickly find themselves at the police station. The difference between the two situations was the time, place, and manner in which the same words were spoken.

Freedom of assembly is a similar right granted by the Constitution. For an interesting application of the rights of freedom of speech and freedom of assembly in a connection with uses of private and public real estate, see the articles over the next three weeks.

First amendment rights of free speech and free assembly are governed by extensive case law interpreting and defining those rights.  Proper application and understanding of these rights involves complex legal considerations.  Persons with First Amendment claims, issues or questions should consult competent legal counsel.

Copyright 2017 ROBERT B. JACOBS