FIRST AMENDMENT POSTULATES: A Doctrine of Free Speech and Expression by Adeyemi Oshunrinade


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The First Amendment postulates “Congress shall make no law respecting the 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 peaceably to assemble and to petition the government for a redress of grievances.” In 1925 the Supreme Court declared that the Due Process Clause of the Fourteenth Amendment protected freedom of expression against state intervention. However, the guarantee of freedom of expression by the First Amendment does not mean that all expression and verbal communication are protected from censorship by the State.

The market place of ideas notion for freedom of expression, dates back to the English Constitution, the principle is that, the state must allow dialogue and ideas to flow no matter how distasteful the dialogue. However, when social order is threatened, government may intervene to punish the speaker. Other than that, government possesses no power to restrict expression because of the message it conveys.

Among the categories of expressions not shielded by the First Amendment, are some kinds of speech such as; fraud, defamation, obscenity, and divulgence of state secret are not protected under the First Amendment. Also unprotected are communications such as hate speech, speech that instigates violence creating social disorder and such speech as pornography otherwise, the market place of idea is a well accepted principle in the United States.

The notion that opinions and ideas must be allowed to flow and open to debates is also universally recognized at least, by all democratic nations and civilized societies. To attack speech based on its contents, violates the norm of free expression and may be subject to scrutiny.

Any restriction on expression because of its contents violates the principle that debates on public concerns must be allowed to flow and should be uninhibited, robust and wide open as well as protected from governmental control or censorship. “The field of ideas deserves equal opportunities and government must afford all points of view the same forum, government may not prohibit assembly or speaking based on the content of the speech. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone”. (U.S.C.A. Const. Amends. 1, 14)

In Police Department of the City of Chicago v. Mosley, Earl Mosley, a Federal postal employee, who had been picketing Jones Commercial High School because of alleged discrimination by the school, brought suit to protest a new city ordinance prohibiting picketing within 150 feet of any primary or secondary school building while the school is in session and one half hour after the session ended. The ordinance however, does not prohibit the peaceful picketing of any school involved in a labor dispute. According to the ordinance, a person who violates its provisions commits disorderly conduct. Mosley on learning about the ordinance contacted the Chicago Police Department to know how the ordinance would affect him; he was informed that, if his picketing continued, he would be arrested.

On April 4, 1968 a day before the ordinance became effective, Mosley, brought action in the United States District Court for the Northern District of Illinois, seeking declaratory and injunctive relief. Mosley, claimed that the ordinance, violates his constitutional rights in that: {1} the statute punished activity protected by the First Amendment; {2} by exempting only peaceful labor picketing while disallowing others, the statute denied him equal protection of the law in violation of the First and the Fourteenth Amendments.

After hearing, the District Court granted a directed verdict dismissing Mosley’s complaint. The Seventh Circuit reversed the District Court’s ruling, holding that because the ordinance prohibited even peaceful picketing next to a school, it is overbroad and unconstitutional in its face. The Supreme Court granted certiorari and affirmed the judgment of the Seventh Circuit, declaring the ordinance unconstitutional. (See Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972))

To allow for the continued building of politics and culture, and to allow each individual to express his/her self in a way that contributes to the development of the society, expression must not be censored or judged based on its content; to do so is content control and content based discrimination.

Government may not prohibit one from speaking based on the content of the speech; to do so amount to selective screening of speech based on its content. Selective exclusion from a public forum may not be justified based on content alone or by reference to content alone. The domain of free speech is a well guarded territory and one protected by the First Amendment. However, this does not mean that the State may not regulate expression; in certain situations, government may regulate speech but to do so, there must be a compelling State interest that is, the regulation must further a significant governmental interest to pass muster and scrutiny. Not only that, a statute that affects the First Amendment must be narrowly tailored to its particular objective; this is a demand of the Equal Protection Clause of the Fourteenth Amendment.

In United States v. Progressive, Inc. involving the government’s effort to secure an injunction against The Progressive’s publication of an article providing technical information on the making of a hydrogen bomb. The government argued that the synthesis of information in the publication would threaten national security, even though all the information in the article was alleged obtained from public sources. In granting a temporary injunction, the district court noted that the Atomic Energy Act authorizes injunction to prevent disclosure of defined restricted data. More importantly, the judge was concerned that although a mistake in ruling against the magazine would curtail the defendant’s rights in a drastic and substantial fashion, a mistake in ruling against the government risked thermonuclear annihilation.

In its opinion, the court states that because of this “disparity of risk,” because the government has met its heavy burden of showing justification for the imposition of a prior restraint and because the court is unconvinced that suppression of the objected-to technical portions of the article would not in any plausible fashion impede the defendants in their laudable crusade to stimulate public knowledge of nuclear armament and bring about enlightened debate on national policy questions, the court finds that the objected-to portions of the article fall within the narrow area recognized by the court in Near v. Minnesota in which a prior restraint on publication is appropriate. (See United States v. Progressive Inc., 467 F. 990 (1979))

The essence is that while we all have different opinions, we must recognize the fact that we live in a market place of ideas where all expressions must be allowed without restriction based on contents. The doctrine of free speech is that, as long as the expression is not prohibited or in the category of indecent speech or profanity proscribed by the First Amendment, the expression must be allowed to flow without inhibition. Any attempt to restrict speech based on its contents, is in contradiction to the postulates of the First Amendment.

Adeyemi Oshunrinade [E. JD] is an expert in general law, foreign relations and the United Nations. He is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment,’ ‘Criminal Law-Homicide’ and ‘SAVING LOVE’ available on Amazon. Follow on Twitter @san0670.

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